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diff --git a/28980-8.txt b/28980-8.txt new file mode 100644 index 0000000..5aad39b --- /dev/null +++ b/28980-8.txt @@ -0,0 +1,17409 @@ +The Project Gutenberg eBook, The Life of Sir James Fitzjames Stephen, +Bart., K.C.S.I., by Sir Leslie Stephen + + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + + + + +Title: The Life of Sir James Fitzjames Stephen, Bart., K.C.S.I. + A Judge of the High Court of Justice + + +Author: Sir Leslie Stephen + + + +Release Date: May 28, 2009 [eBook #28980] + +Language: English + +Character set encoding: ISO-8859-1 + + +***START OF THE PROJECT GUTENBERG EBOOK THE LIFE OF SIR JAMES FITZJAMES +STEPHEN, BART., K.C.S.I.*** + + +E-text prepared by David Clarke, Carla Foust, and the Project Gutenberg +Online Distributed Proofreading Team (http://www.pgdp.net) from digital +material generously made available by Internet Archive/Canadian Libraries +(http://www.archive.org/details/toronto) + + + +Note: Project Gutenberg also has an HTML version of this + file which includes the original illustrations. + See 28980-h.htm or 28980-h.zip: + (http://www.gutenberg.org/files/28980/28980-h/28980-h.htm) + or + (http://www.gutenberg.org/files/28980/28980-h.zip) + + + Images of the original pages are available through + Internet Archive/Canadian Libraries. See + http://www.archive.org/details/lifeofsirjamesfi00stepuoft + + +Transcriber's note: + + Minor punctuation errors have been corrected without notice. + Printer's errors have been corrected and are listed at the + end of the book. All other inconsistencies are as in the + original. + + In this e-book a carat character (^) indicates that the + following character(s) is (are) a superscript. + + + + + +SIR JAMES FITZJAMES STEPHEN + +[Illustration: _Walker & Boutalls Ph. Sc._ + +J F Stephen + +_From a drawing by G. F. Watts. R. A. 1863._] + +London. Published by Smith Elder & C^o. 15 Waterloo Place. + + +THE LIFE OF SIR JAMES FITZJAMES STEPHEN, BART., K.C.S.I. + +A Judge of the High Court of Justice + +by his brother + +LESLIE STEPHEN + +With Two Portraits + + + + + + + +London +Smith, Elder, & Co., 15 Waterloo Place +1895 + +[All rights reserved] + + + + +PREFACE + + +In writing the following pages I have felt very strongly one +disqualification for my task. The life of my brother, Sir J. F. STEPHEN, +was chiefly devoted to work which requires some legal knowledge for its +full appreciation. I am no lawyer; and I should have considered this +fact to be a sufficient reason for silence, had it been essential to +give any adequate estimate of the labours in question. My purpose, +however, is a different one. I have wished to describe the man rather +than to give any history of what he did. What I have said of the value +of his performances must be taken as mainly a judgment at second hand. +But in writing of the man himself I have advantages which, from the +nature of the case, are not shared by others. For more than sixty years +he was my elder brother; and a brother in whose character and fortunes I +took the strongest interest from the earliest period at which I was +capable of reflection or observation. I think that brothers have +generally certain analogies of temperament, intellectual and moral, +which enable them, however widely they may differ in many respects, to +place themselves at each other's point of view, and to be so far +capable of that sympathetic appreciation which is essential to +satisfactory biography. I believe that this is true of my brother and +myself. Moreover, as we were brought up under the same roof, I have an +intimate knowledge--now, alas! almost peculiar to myself--of the little +home circle whose characteristics had a profound influence upon his +development. I have thought it desirable to give a fuller account of +those characteristics, and of their origin in previous circumstances, +than can well be given by any one but myself. This is partly because I +recognise the importance of the influence exerted upon him; and partly, +I will admit, for another reason. My brother took a great interest, and, +I may add, an interest not unmixed with pride, in our little family +history. I confess that I share his feelings, and think, at any rate, +that two or three of the persons of whom I have spoken deserve a fuller +notice than has as yet been made public. What I have said may, I hope, +serve as a small contribution to the history of one of the rivulets +which helped to compose the great current of national life in the +earlier part of this century. + +I could not have attempted to write the life of my brother without the +approval and the help of my sister-in-law, Lady Stephen. She has +provided me with materials essential to the narrative, and has kindly +read what I have written. I am, of course, entirely responsible for +everything that is here said; and I feel the responsibility all the more +because I have had the advantage of her suggestions throughout. I have +also to thank my brother's children, who have been in various ways very +helpful. My nephews, in particular, have helped me in regard to various +legal matters. To my sister, Miss Stephen, I owe a debt of gratitude +which--for reasons which she will understand--I shall not attempt to +discharge by any full acknowledgment. + +I have especially to thank Sir H. S. Cunningham and Lady Egerton, Lady +Stephen's brother and sister, for permitting me to read my brother's +letters to them, and for various suggestions. Some other correspondence +has been placed in my hands, and especially two important collections. +Lady Grant Duff has been good enough to show me a number of letters +written to her, and Lady Lytton has communicated letters written to the +late Lord Lytton. I have spoken of these letters in the text, and have +in the last chapter given my reasons for confining my use of them to +occasional extracts. They have been of material service. + +I have acknowledged help received from other persons at the points where +it has been turned to account. I will, however, offer my best thanks to +them in this place, and assure them of my sincere gratitude. Mr. Arthur +Coleridge, the Rev. Dr. Kitchin, dean of Durham, the Rev. H. W. Watson, +rector of Berkeswell, Coventry, the Rev. J. Llewelyn Davies, vicar of +Kirkby Lonsdale, Prof. Sidgwick and Mr. Montagu S. D. Butler, of +Pembroke College, Cambridge, have given me information in regard to +early years. Mr. Franklin Lushington, Mr. Justice Wills, Lord Field, Mr. +Justice Vaughan Williams, Sir Francis Jeune, Sir Theodore Martin, the +Right Hon. Joseph Chamberlain, Mr. H. F. Dickens, and the late Captain +Parker Snow have given me information of various kinds as to the legal +career. Sir John Strachey, Sir Robert Egerton, and Sir H. S. Cunningham +have given me information as to the Indian career. Mr. George Murray +Smith, Mr. James Knowles, Mr. Frederick Greenwood, and Mr. Longman have +given me information as to various literary matters. I have also to +thank Mrs. Charles Simpson, Mr. F. W. Gibbs, Mrs. Russell Gurney, Mr. +Horace Smith, Sir F. Pollock, Prof. Maitland, Mr. Voysey, and Mr. A. H. +Millar, of Dundee, for help on various points. + + LESLIE STEPHEN. + + 1 MAY, 1895. + + + + +CONTENTS + + + CHAPTER I + + FAMILY HISTORY + + PAGE + I. JAMES STEPHEN, WRITER ON IMPRISONMENT FOR DEBT 1 + II. JAMES STEPHEN, MASTER IN CHANCERY 8 + III. MASTER STEPHEN'S CHILDREN 25 + IV. THE VENNS 33 + V. JAMES STEPHEN, COLONIAL UNDER-SECRETARY 41 + + + CHAPTER II + + EARLY LIFE + + I. CHILDHOOD 66 + II. ETON 77 + III. KING'S COLLEGE 86 + IV. CAMBRIDGE 91 + V. READING FOR THE BAR 114 + + + CHAPTER III + + THE BAR AND JOURNALISM + + I. INTRODUCTORY 131 + II. FIRST YEARS AT THE BAR 136 + III. THE 'SATURDAY REVIEW' 148 + IV. EDUCATION COMMISSION AND RECORDERSHIP 165 + V. PROGRESS AT THE BAR 173 + VI. 'ESSAYS BY A BARRISTER' 177 + VII. DEFENCE OF DR. WILLIAMS 184 + VIII. 'VIEW OF THE CRIMINAL LAW' 203 + IX. THE 'PALL MALL GAZETTE' 212 + X. GOVERNOR EYRE 227 + XI. INDIAN APPOINTMENT 231 + + + CHAPTER IV + + INDIA + + I. PERSONAL HISTORY 237 + II. OFFICIAL WORK IN INDIA 246 + III. INDIAN IMPRESSIONS 282 + IV. LAST MONTHS IN INDIA 291 + + + CHAPTER V + + LAST YEARS AT THE BAR + + I. FIRST OCCUPATIONS IN ENGLAND 298 + II. 'LIBERTY, EQUALITY, FRATERNITY' 306 + III. DUNDEE ELECTION 340 + IV. CODIFICATION IN ENGLAND 351 + V. THE METAPHYSICAL SOCIETY 358 + VI. THE CRIMINAL CODE 375 + VII. ECCLESIASTICAL CASES 381 + VIII. CORRESPONDENCE WITH LORD LYTTON 386 + IX. APPOINTMENT TO A JUDGESHIP 401 + NOTE ON RESIDENCE IN IRELAND 405 + + CHAPTER VI + + JUDICIAL CAREER + + I. HISTORY OF CRIMINAL LAW 410 + II. 'NUNCOMAR AND IMPEY' 428 + III. JUDICIAL CHARACTERISTICS 437 + IV. MISCELLANEOUS OCCUPATIONS 450 + V. JAMES KENNETH STEPHEN 468 + VI. CONCLUSION 477 + + BIBLIOGRAPHICAL NOTE 483 + + INDEX 487 + + * * * * * + + _ILLUSTRATIONS_ + + PORTRAIT FROM A DRAWING BY G. F. WATTS, R.A., 1863 _Frontispiece_ + + " " PHOTOGRAPH BY BASSANO, 1886 _to face p. 410_ + + + + +LIFE + +OF + +SIR JAMES FITZJAMES STEPHEN + + + + +CHAPTER I + +_FAMILY HISTORY_ + + +I. JAMES STEPHEN, WRITER ON IMPRISONMENT FOR DEBT + +During the first half of the eighteenth century a James Stephen, the +first of the family of whom I have any knowledge, was tenant of a small +farm in Aberdeenshire, on the borders of Buchan.[1] He was also engaged +in trade, and, though it is stated that smuggler would be too harsh a +name to apply to him, he had no insuperable objection to dealing in +contraband articles. He was considered to belong to the respectable +class, and gave his sons a good education. He had nine children by his +wife, Mary Brown. Seven of these were sons, and were said to be the +finest young men in the country. Alexander, the eldest, was in business +at Glasgow; he died when nearly seventy, after falling into distress. +William, the second son, studied medicine, and ultimately settled at St. +Christopher's, in the West Indies, where he was both a physician and a +planter. He probably began life as a 'surgeon to a Guineaman,' and he +afterwards made money by buying 'refuse' (that is, sickly) negroes from +slave ships, and, after curing them of their diseases, selling them at +an advanced price. He engaged in various speculations, and had made +money when he died in 1781, in his fiftieth year. His career, as will be +seen, was of great importance to his relations. The other sons all took +to trade, but all died before William. The two sisters, Mrs. Nuccoll and +Mrs. Calder, married respectably, and lived to a great age. They were +able to be of some service to nephews and nieces. + +My story is chiefly concerned with the third son, James, born about +1733. After studying law for a short time at Aberdeen, he was sent +abroad, when eighteen years old, to Holland, and afterwards to France, +with a view to some mercantile business. He was six feet three inches in +height, and a man of great muscular power. Family traditions tell of his +being attacked by two footpads, and knocking their heads together till +they cried for mercy. Another legend asserts that when a friend offered +him a pony to carry him home after dinner, he made and won a bet that he +would carry the pony. In the year 1752 this young giant was sailing as +supercargo of a ship bound from Bordeaux to Scotland, with wine +destined, no doubt, to replenish the 'blessed bear of Bradwardine,' and +its like. The ship had neared the race of Portland, when a storm arose, +and she was driven upon the cliffs of Purbeck Island. James Stephen, +with four of the crew, escaped to the rocks, the rest being drowned. +Stephen roped his companions to himself, and scaled the rocks in the +dark, as Lovel, in the 'Antiquary,' leads the Wardours and Edie +Ochiltree up the crags of the Halket Head. Next day, the outcasts were +hospitably received by Mr. Milner, Collector of Customs at Poole. +Stephen had to remain for some time on the spot to look after the +salvage of the cargo. The drowned captain had left some valuable papers +in a chest. He appeared in a dream to Stephen, and gave information +which led to their recovery. The news that his ghost was on the look-out +had, it is said, a wholesome effect in deterring wreckers from +interference with the cargo. + +Mr. Milner had six children, the youngest of whom, Sibella, was a lovely +girl of fifteen. She had a fine voice, and had received more than the +usual education of the times. She fell in love with the gallant young +stranger, and before long they were privately married. This event was +hastened by their desire to anticipate the passage of the Marriage Act +(June 1753), which was expected to make the consent of parents +necessary. The poor girl, however, yielded with much compunction, and +regarded the evils which afterwards befell her as providential +punishments for her neglect of filial duty. + +James Stephen was a man of many prepossessing qualities, and soon became +reconciled to his wife's family. He was taken into partnership by one of +his brothers-in-law, a William Milner, then a merchant at Poole. Here +his two eldest children were born, William on October 27, 1756, and +James on June 30, 1758. Unfortunately the firm became bankrupt; and the +bankruptcy led to a lifelong quarrel between James Stephen and his elder +brother, William, who had taken some share in the business. James then +managed to start in business in London, and for some time was fairly +prosperous. Unluckily, while at Poole he had made a great impression +upon Sir John Webbe, a Roman Catholic baronet, who had large estates in +the neighbourhood. Sir John had taken up a grand scheme for developing +his property at Hamworthy, close to Poole. Stephen, it seems, had +discovered that there were not only brick earth and pipeclay but mineral +springs and coal under the barren soil. A town was to be built; a trade +started with London; Sir John's timber was to be turned into ships; a +colliery was to be opened--and, in short, a second Bristol was to arise +in Dorsetshire. Sir John was to supply the funds, and Stephen's energy +and ability marked him out as the heaven-sent manager. Stephen accepted +the proposals, gave up his London business, and set to work with energy. +Coal was found, it is said, 'though of too sulphureous a kind for use;' +but deeper diggings would, no doubt, lay bare a superior seam. After a +year or two, however, affairs began to look black; Sir John Webbe became +cool and then fell out with his manager; and the result was that, about +1769, James Stephen found himself confined for debt in the King's Bench +prison.[2] + +Stephen, however, was not a man to submit without knowing the reason +why. He rubbed up his old legal knowledge, looked into the law-books, +and discovered that imprisonment for debt was contrary to Magna Charta. +This doctrine soon made converts in the King's Bench. Three of his +fellow prisoners enjoy such immortality as is conferred by admission to +biographical dictionaries. The best known was the crazy poet, +Christopher Smart, famous for having leased himself for ninety-nine +years to a bookseller, and for the fine 'Song of David,' which Browning +made the text of one of his later poems.[3] Another was William Jackson, +an Irish clergyman, afterwards known as a journalist on the popular +side, who was convicted of high treason at Dublin in 1795, and poisoned +himself in the dock.[4] A third was William Thompson, known as +'Blarney,' a painter, who had married a rich wife in 1767, but had +apparently spent her money by this time.[5] Mrs. Stephen condescended to +enliven the little society by her musical talents. The prisoners in +general welcomed Stephen as a champion of liberty. A writ of 'Habeas +Corpus' was obtained, and Stephen argued his case before Lord Mansfield. +The great lawyer was naturally less amenable to reason than the +prisoners. He was, however, impressed, it is reported, by the manliness +and energy of the applicant. 'It is a great pity,' he said, 'but the +prisoner must be remanded.' James Stephen's son, James, a boy of twelve, +was by his side in court, and a bystander slipped five shillings into +his hand; but the father had to go back to his prison. He stuck to his +point obstinately. He published a pamphlet, setting forth his case. He +wrote letters to the 'Public Advertiser,' to which Junius was then +contributing. He again appealed to the courts, and finally called a +meeting of his fellow prisoners. They resolved to break out in a body, +and march to Westminster, to remonstrate with the judges. Stephen seized +a turnkey, and took the keys by force; but, finding his followers +unruly, was wise enough to submit. He was sent with three others to the +'New Jail.' The prisoners in the King's Bench hereupon rose, and +attacked the wall with a pickaxe. Soldiers were called in, and the riot +finally suppressed.[6] + +Stephen, in spite of these proceedings, was treated with great humanity +at the 'New Jail;' and apparently without much severity at the King's +Bench to which he presently returned. 'Blarney' Thompson painted his +portrait, and I possess an engraving with the inscription, 'Veritas à +quocunque dicitur à Deo est.' Not long ago a copy of this engraving was +given to my brother by a friend who had seen it in a shop and recognised +the very strong family likeness between James and his great-grandson, +James Fitzjames. + +Stephen soon got out of prison. Sir John Webbe, at whose suit he had +been arrested, agreed to pay the debts, gave him 500_l._ and settled an +annuity of 40_l._ upon Mrs. Stephen. I hope that I may infer that Sir +John felt that his debtor had something to say for himself. The question +of making a living, however, became pressing. Stephen, on the strength, +I presume, of his legal studies, resolved to be called to the bar. He +entered at the Middle Temple; but had scarcely begun to keep his terms +when the authorities interfered. His letters to the papers and attacks +upon Lord Mansfield at the very time when Junius was at the height of +his power (I do not, I may observe, claim the authorship of the letters +for James Stephen) had, no doubt, made him a suspicious character. The +benchers accordingly informed him that they would not call him to the +bar, giving as their reasons his 'want of birth, want of fortune, want +of education, and want of temper.' His friend, William Jackson, hereupon +printed a letter,[7] addressing the benchers in the true Junius style. +He contrasts Stephen with his persecutors. Stephen might not know Law +Latin, but he had read Bracton and Glanville and Coke; he knew French +and had read Latin at Aberdeen; he had been educated, it was true, in +some 'paltry principles of honour and honesty,' while the benchers had +learnt 'more useful lessons;' he had written letters to Wilkes copied in +all the papers; he had read Locke, could 'harangue for hours upon social +feelings, friendship, and benevolence,' and would trudge miles to save a +family from prison, not considering that he was thereby robbing the +lawyers and jailors of their fees. The benchers, it seems, had sworn the +peace against him before Sir John Fielding, because he had made a +friendly call upon a member of the society. They mistook a card of +introduction for a challenge. Jackson signs himself 'with the +profoundest sense of your Masterships' demerits, your Masterships' +inflexible detestor,' and probably did not improve his friend's +position. + +Stephen, thus rejected, entered the legal profession by a back door, +which, if not reputable, was not absolutely closed. He entered into a +kind of partnership with a solicitor who was the ostensible manager of +the business, and could be put forward when personal appearance was +necessary. Stephen's imposing looks and manner, his acquaintance with +commercial circles and his reputation as a victim of Mansfield brought +him a certain amount of business. He had, however, to undertake such +business as did not commend itself to the reputable members of the +profession. He had a hard struggle and was playing a losing game. He +became allied with unfortunate adventurers prosecuting obscure claims +against Government, which, even when admitted, did not repay the costs +incurred. He had to frequent taverns in order to meet his clients, and +took to smoking tobacco and possibly to other indulgences. His wife, who +was a delicate woman, was put to grievous shifts to make both ends meet. +Her health broke down, and she died at last on March 21, 1775. She had +brought him six children, of whom the eldest was nineteen and the +youngest still under four.[8] I shall speak directly of the two eldest. +Two daughters were taken in charge by their grandmother Stephen, who was +still living in Scotland; while the two little ones remained with their +father at Stoke Newington, where he now lived, ran about the common and +learnt to ride pigs. James Stephen himself lived four years more, +sinking into deeper difficulties; an execution was threatened during his +last illness, and he died in 1779, leaving hardly enough to pay his +debts.[9] + + +II. JAMES STEPHEN, MASTER IN CHANCERY + +I have now to tell the story of the second son, James, my grandfather, +born in 1758. His education, as may be anticipated, was desultory. When +four or five years old, he was sent to a school at Vauxhall kept by +Peter Annet (1693-1769), the last of the Deists who (in 1763) was +imprisoned for a blasphemous libel. The elder Stephen was then living +at Lambeth, and the choice of a schoolmaster seems to show that his +opinions were of the free-thinking type. About 1767 the boy was sent to +a school near his mother's family at Poole. There at the early age of +ten he fell desperately in love with his schoolmaster's daughter, aged +fifteen, and was hurt by the levity with which his passion was treated. +At the same period he became a poet, composed hymns, and wrote an +epigram upon one of his father's creditors. He accompanied his father to +the King's Bench Prison, and there Christopher Smart and others petted +the lad, lent him books, and encouraged his literary aspirations. During +his father's later troubles he managed to keep up a subscription to a +circulating library and would read two volumes a day, chiefly plays and +novels, and, above all, the 'Grand Cyrus' and other old-fashioned +romances. His mother tried to direct him to such solid works as Rapin's +History, and he learnt her favourite Young's 'Night Thoughts' by heart. +He had no schooling after leaving Poole, until, about 1772, he was sent +to a day school on Kennington Green, kept by a cheesemonger who had +failed in business, and whose sole qualifications for teaching were a +clerical wig and a black coat. Here occurred events which profoundly +affected his career. A schoolfellow named Thomas Stent, son of a +stockbroker, became his warm friend. The parent Stents forbade the +intimacy with the son of a broken merchant. Young Stephen boldly called +upon Mrs. Stent to protest against the sentence. She took a liking to +the lad and invited him to her house, where the precocious youth fell +desperately in love with Anne Stent, his schoolfellow's sister, who was +four months his senior. The attachment was discovered and treated with +ridicule. The girl, however, returned the boy's affection and the +passion ran its course after the most approved fashion. The hero was +forbidden the house and the heroine confined to her room. There were +clandestine meetings and clandestine correspondence, in which the +schoolboy found the advantage of his studies in the 'Grand Cyrus.' At +last in 1773 the affair was broken off for the time by the despatch of +James Stephen to Winchester, where one of his Milner uncles boarded him +and sent him to the school. His want of preparation prevented him from +profiting by the teaching, and after the first half year his parents' +inability to pay the bills prevented him from returning. He wrote again +to Miss Stent, but received a cold reply, signifying her obedience to +parental authority. For the next two years he learnt nothing except from +his studies at the circulating library. His mother, sinking under her +burthens, did what she could to direct him, and he repaid her care by +the tenderest devotion. Upon her death he thought for a moment of +suicide. Things were looking black indeed. His elder brother William now +took a bold step. His uncle and godfather, William, who had quarrelled +with the family after the early bankruptcy at Poole, was understood to +be prospering at St. Christopher's. The younger William, who had been +employed in a mercantile office, managed to beg a passage to the West +Indies, and threw himself upon the uncle's protection. The uncle +received the boy kindly, promised to take him into partnership as a +physician, and sent him back by the same ship in order to obtain the +necessary medical training at Aberdeen. He returned just in time. James +had been thinking of volunteering under Washington, and had then +accepted the offer of a 'book-keeper's' place in Jamaica. He afterwards +discovered that a 'book-keeper' was an intermediate between the black +slave-driver and the white overseer, and was doomed to a miserable and +degrading life. It was now settled that he should go with William to +Aberdeen, and study law. He entered at Lincoln's Inn, and looked forward +to practising at St. Christopher's. The uncle refused to extend his +liberality to James; but a student could live at Aberdeen for 20_l._ a +year; the funds were somehow scraped together; and for the next two +sessions, 1775-76 and 1776-77, James was a student at the Marischal +College. The town, he says, was filthy and unwholesome; but his Scottish +cousins were cordial and hospitable, the professors were kindly; and +though his ignorance of Latin and inability even to read the Greek +alphabet were hindrances, he picked up a little mathematics and heard +the lectures of the great Dr. Beattie. His powers of talk and his +knowledge of London life atoned for his imperfect education. He saw +something of Aberdeen society; admired and danced with the daughters of +baillies, and was even tempted at times to forget his passion for Anne +Stent, who had sent a chilling answer to a final appeal. + +In 1777, Stephen returned to London, and had to take part of his +father's dwindling business. He thus picked up some scraps of +professional knowledge. On the father's death, kind Scottish relations +took charge of the two youngest children, and his brother William soon +sailed for St. Christopher's. James was left alone. He appealed to the +uncle, George Milner, with whom he had lived at Winchester, and who, +having married a rich wife, was living in comfort at Comberton, near +Cambridge. The uncle promised to give him 50_l._ a year to enable him to +finish his legal education. He took lodgings on the strength of this +promise, and resolved to struggle on, though still giving an occasional +thought to Washington's army. + +Isolation and want of money naturally turn the thoughts of an energetic +young man to marriage. James Stephen resolved once more to appeal to +Anne Stent. Her father's doors were closed to him; but after long +watching he managed to encounter her as she was walking. He declared his +unaltered passion, and she listened with apparent sympathy. She showed a +reserve, however, which was presently explained. In obedience to her +parents' wishes, she had promised to marry a young man who was on his +return from the colonies. The avowal led to a pathetic scene: Anne Stent +wept and fainted, and finally her feelings became so clear that the +couple pledged themselves to each other; and the young gentleman from +the colonies was rejected. Mr. Stent was indignant, and sent his +daughter to live elsewhere. + +The young couple, however, were not forbidden to meet, and found an ally +in James Stephen's former schoolfellow, Thomas Stent. He was now a +midshipman in the royal navy; and he managed to arrange meetings between +his sister and her lover. Stent soon had to go to sea, but suggested an +ingenious arrangement for the future. A lovely girl, spoken of as Maria, +was known to both the Stents and passionately admired by the sailor. She +lived in a boarding-house, and Stent proposed that Stephen should lodge +in the same house, where he would be able both to see Anne Stent and to +plead his friend's cause with Maria. This judicious scheme led to +difficulties. When, after a time, Stephen began to speak to Maria on +behalf of Stent, the lady at last hinted that she had another +attachment, and, on further pressure, it appeared that the object of the +attachment was Stephen himself. He was not insensible, as he then +discovered, to Maria's charms. 'I have been told,' he says, 'that no man +can love two women at once; but I am confident that this is an error.' + +The problem, however, remained as to the application of this principle +to practice. The first consequence was a breach with the old love. Miss +Stent and her lover were parted. Maria, however, was still under age, +and Stephen was under the erroneous impression that a marriage with her +would be illegal without the consent of her guardians, which was out of +the question. While things were in this state, Thomas Stent came back +from a cruise covered with glory. He hastened at once from Portsmouth to +his father, and persuaded the delighted old gentleman to restore his +daughter to her home and to receive James Stephen to the house as her +acknowledged suitor. He then sent news of his achievement to his friend; +and an interview became necessary, to which James Stephen repaired about +as cheerfully, he says, as he would have gone to Tyburn tree. He had to +confess that he had broken off the engagement to his friend's sister +because he had transferred his affections to his friend's mistress. +Stent must have been a magnanimous man. He replied, after reflection, +that the news would break his father's heart. The arrangement he had +made must be ostensibly carried out. Stephen must come to the elder +Stent's house and meet the daughter on apparently cordial terms. Young +Stent's friendship was at an end; but Stephen felt bound to adopt the +prescribed plan. + +Meanwhile Stephen's finances were at a low ebb. His uncle, Milner, had +heard a false report, that the nephew had misrepresented the amount of +his father's debts. He declined to pay the promised allowance, and +Stephen felt the insult so bitterly that, after disproving the story, he +refused to take a penny from his uncle. He was once reduced to his last +sixpence, and was only kept afloat by accepting small loans, amounting +to about 5_l._, from an old clerk of his father's. At last, towards the +end of 1780 a chance offered. The 'fighting parson,' Bate, afterwards +Sir Henry Bate Dudley, then a part proprietor of the 'Morning Post,' +quarrelled with a fellow proprietor, Joseph Richardson, put a bullet +into his adversary's shoulder and set up a rival paper, the 'Morning +Herald.' A vacancy was thus created in the 'Morning Post,' and +Richardson gave the place to Stephen, with a salary of two guineas a +week. Stephen had to report debates on the old system, when paper and +pen were still forbidden in the gallery. At the trial of Lord George +Gordon (February 5 and 6, 1781) he had to be in Westminster Hall at four +in the morning; and to stand wedged in the crowd till an early hour the +next morning,[10] when the verdict was delivered. He had then to write +his report while the press was at work. The reporters were employed at +other times upon miscellaneous articles; and Stephen acquired some +knowledge of journalism and of the queer world in which journalists then +lived. They were a rough set of Bohemians, drinking, quarrelling, and +duelling, and indulging in coarse amusements. Fortunately Stephen's +attendance upon the two ladies, for he still saw something of both, kept +him from joining in some of his fellows' amusements. + +In 1781 there came a prospect of relief. The uncle in St. Christopher's +died and left all his property to his nephew William. William at once +sent home supplies, which enabled his brother James to give up +reporting, to be called to the bar (January 26, 1782) and in the next +year to sail to St. Christopher's. His love affair had unravelled +itself. He had been suspended between the two ladies, and only able to +decide that if either of them married he was bound to marry the other. +Miss Stent seems to have been the superior of Maria in intellect and +accomplishments, though inferior in beauty. She undoubtedly showed +remarkable forbearance and good feeling. Ultimately she married James +Stephen before he sailed for the West Indies. Maria not long afterwards +married someone else, and, to the best of my belief, lived happily ever +afterwards. + +My grandfather's autobiography, written about forty years later, comes +to an end at this point. It is a curious document, full of the strong +religious sentiment by which he came to be distinguished; tracing the +finger of Providence in all that happened to him, even in the good +results brought out of actions for which he expresses contrition; and +yet with an obvious pleasure in recalling the vivid impressions of his +early and vigorous youth. I omit parts of what is at times a confession +of error. This much I think it only right to say. Although he was guilty +of some lapses from strict morality, for which he expresses sincere +regret, it is also true that, in spite of his surroundings and the +temptations to which a very young man thrown upon the London world of +those days was exposed, he not only showed remarkable energy and +independence and a strong sense of honour, but was to all appearance +entirely free from degrading vices. His mother's influence seems to have +impressed upon him a relatively high standard of morality, though he was +a man of impetuous and ardent character, turned loose in anything but a +pure moral atmosphere. + +James Stephen had at this time democratic tendencies. He had sympathised +with the rebellious colonists, and he had once covered himself with +glory by a speech against slavery delivered in Coachmakers' Hall in +presence of Maria and Miss Stent. He had then got up the subject for the +occasion. He was now to make practical acquaintance with it. His ship +touched at Barbadoes in December 1783; and out of curiosity he attended +a trial for murder. Four squalid negroes, their hands tied by cords, +were placed at the bar. A planter had been found dead with injuries to +his head. A negro girl swore that she had seen them inflicted by the +four prisoners. There was no jury, and the witnesses were warned in 'the +most alarming terms' to conceal nothing that made against the accused. +Stephen, disgusted by the whole scene, was glad to leave the court. He +learnt afterwards that the prisoners were convicted upon the unsupported +evidence of the girl. The owner of two of them afterwards proved an +_alibi_ conclusively, and they were pardoned; but the other two, +convicted on precisely the same evidence, were burnt alive.[11] Stephen +resolved never to have any connection with slavery. During his stay at +St. Christopher's he had free servants, or, if he hired slaves, obtained +their manumission. No one who had served him long remained in slavery, +except one man, who was so good and faithful a servant that his owner +refused to take even the full value when offered by his employer.[12] +Other facts strengthened his hatred of the system. In 1786 he was +engaged in prosecuting a planter for gross cruelty to two little negroes +of 6 and 7 years of age. After long proceedings, the planter was fined +40_s._ + +A lawyer's practice at St. Christopher's was supposed to be profitable. +The sugar colonies were flourishing; and Nelson, then captain of the +'Boreas,' was giving proof of his character, and making work for the +lawyers by enforcing the provisions of the Navigation Act upon +recalcitrant American traders and their customers. + +Stephen earned enough to be able to visit England in the winter of +1788-9. There he sought the acquaintance of Wilberforce, who was +beginning his crusade against the slave trade. Information from a shrewd +observer on the spot was, of course, of great value; and, although +prudence forbade a public advocacy of the cause, Stephen supplied +Wilberforce with facts and continued to correspond with him after +returning to St. Christopher's. The outbreak of the great war brought +business. During 1793-4 the harbour of St. Christopher's was crowded +with American prizes, and Stephen was employed to defend most of them in +the courts. His health suffered from the climate, and he now saved +enough to return to England at the end of 1794. He then obtained +employment in the Prize Appeal Court of the Privy Council, generally +known as the 'Cockpit.' He divided the leading business with Dallas +until his appointment to a Mastership in Chancery in 1811. + +Stephen was now able to avow his anti-slavery principles and soon became +one of Wilberforce's most trusted supporters. He was probably second +only to Zachary Macaulay, who had also practical experience of the +system. Stephen's wife died soon after his return, and was buried at +Stoke Newington on December 10, 1796. He was thrown for a time into the +deepest dejection. Wilberforce forced himself upon his solitude, and +with the consolations of so dear a friend his spirits recovered their +elasticity. Four years later the friendship was drawn still closer by +Stephen's marriage to the only surviving sister of Wilberforce, widow of +the Rev. Dr. Clarke, of Hull. She was a rather eccentric but very +vigorous woman. She spent all her income, some 300_l._ or 400_l._ a +year, on charity, reserving 10_l._ for her clothes. She was often to be +seen parading Clapham in rags and tatters. Thomas Gisborne, a light of +the sect, once tore her skirt from top to bottom at his house, Yoxall +Lodge, saying 'Now, Mrs. Stephen, you _must_ buy a new dress.' She +calmly stitched it together and appeared in it next day. She made her +stepchildren read Butler's 'Analogy' before they were seven.[13] But in +spite of her oddities and severities, she seems to have been both +respected and beloved by her nearest relations. + +The marriage probably marked Stephen's final adhesion to the Evangelical +party. He maintained till his death the closest and most affectionate +alliance with his brother-in-law Wilberforce. The nature of their +relations may be inferred from Wilberforce's 'Life and Letters.' +Wilberforce owed much of his influence to the singular sweetness of his +disposition and the urbanity of his manners. His wide sympathies +interested him in many causes, and even his antagonists were not +enemies. Stephen, on the other hand, as Mr. Henry Adams says, was a +'high-minded fanatic.' To be interested in any but the great cause was +to rouse his suspicions. 'If you,' he once wrote to Wilberforce, 'were +Wellington, and I were Masséna, I should beat you by distracting your +attention from the main point.' Any courtesies shown by Wilberforce to +his opponents or to his old friend Pitt seemed to his ardent coadjutor +to be concessions to the evil principle. The Continental war, he held, +was a Divine punishment inflicted upon England for maintaining the slave +trade; and he expounded this doctrine in various pamphlets, the first of +which, 'The Crisis of the Sugar Colonies,' appeared in 1802. + +Yet Stephen owes a small niche in history to another cause, upon which +he bestowed no little energy. His professional practice had made him +familiar with the course of the neutral trade. In October 1805, almost +on the day of the battle of Trafalgar, he published a pamphlet called +'War in Disguise.' The point of this, put very briefly, was to denounce +a practice by which our operations against France and Spain were +impeded. American ships, or ships protected by a fraudulent use of the +American flag, sailed from the hostile colonies, ostensibly for an +American port, and then made a nominally distinct but really continuous +voyage to Europe. Thus the mother countries were still able to draw +supplies from the colonies. The remedy suggested in Stephen's pamphlet +was to revive the claims made by England in the Seven Years' War which +entitled us to suppress the trade altogether. The policy thus suggested +was soon embodied in various Orders in Council. The first was made on +January 7, 1807, by the Whig Government before they left office and a +more stringent order followed in November. The last was drawn by +Perceval, the new Chancellor of the Exchequer. Perceval was a friend of +Wilberforce and sympathised both with his religious views and his hatred +of the slave trade. He soon became intimate with Stephen, to whose +influence the Orders in Council were generally attributed. Brougham, the +chief opponent of the policy, calls 'War in Disguise' 'brilliant and +captivating,' and says that its statement of facts was undeniable. I +cannot say that I have found it amusing, but it is written with vigour +and impressive earnestness. Brougham calls Stephen the 'father of the +system'; and, whether the system were right or wrong, it had undoubtedly +a great influence upon the course of events. I fear that my grandfather +was thus partly responsible for the unfortunate war with the United +States; but he clearly meant well. In any case, it was natural that +Perceval should desire to make use of his supporter's talents. He found +a seat in Parliament for his friend. Stephen was elected member for +Tralee on Feb. 25, 1808, and in the Parliament which met in 1812 was +returned for East Grimstead. + +Stephen thus entered Parliament as an advocate of the Government policy. +His revolutionary tendencies had long vanished. He delivered a speech +upon the Orders in Council on May 6, 1809, which was reprinted as a +pamphlet.[14] He defended the same cause against the agitation led by +Brougham in 1812. A Committee of the whole House was granted, and +Stephen was cross-examining one of Brougham's witnesses (May 11, 1812), +when a shot was heard in the lobby, and Perceval was found to have been +murdered by Bellingham. Stephen had just before been in Perceval's +company, and it was thought, probably enough, that he would have been an +equally welcome victim to the maniac. He was made ill by the shock, but +visited the wretched criminal to pray for his salvation. + +Stephen, according to Brougham, showed abilities in Parliament which +might have given him a leading position as a debater. His defective +education, his want of tact, and his fiery temper, prevented him from +rising to a conspicuous position. His position as holding a Government +seat in order to advocate a particular measure, and the fact that +politics in general were to him subsidiary to the one great end of +abolishing slavery, would also be against him. Two incidents of his +career are characteristic. The benchers of Lincoln's Inn had passed a +resolution--'after dinner' it was said by way of apology--that no one +should be called to the bar who had written for hire in a newspaper. A +petition was presented to the House of Commons upon which Stephen made +an effective speech (March 23, 1810). He put the case of a young man +struggling against difficulties to obtain admission to a legal career +and convicted of having supported himself for a time by reporting. Then +he informed the House that this was no imaginary picture, but the case +of 'the humble individual who now addresses you.' Immense applause +followed; Croker and Sheridan expressed equal enthusiasm for Stephen's +manly avowal, and the benchers' representatives hastened to promise that +the obnoxious rule should be withdrawn. When the allied sovereigns +visited London in 1814 another characteristic incident occurred. They +were to see all the sights: the King of Prussia and Field-Marshal +Blücher were to be edified by hearing a debate; and the question arose +how to make a debate conducted in so august a presence anything but a +formality. 'Get Whitbread to speak,' suggested someone, 'and Stephen +will be sure to fly at him.' The plan succeeded admirably. Whitbread +asked for information about the proposed marriage of the Princess +Charlotte to the Prince of Orange. Stephen instantly sprang up and +rebuked the inquirer. Whitbread complained of the epithet 'indecent' +used by his opponent. The Speaker intervened and had to explain that the +epithet was applied to Mr. Whitbread's proposition and not to Mr. +Whitbread himself. Stephen, thus sanctioned, took care to repeat the +phrase; plenty of fire was introduced into the debate, and Field-Marshal +Blücher had the pleasure of seeing a parliamentary battle.[15] + +Whitbread was obnoxious to Stephen as a radical and as an opponent of +the Orders in Council. Upon another question Stephen was still more +sensitive. When the topic of slavery is introduced, the reporters +describe him as under obvious agitation, and even mark a sentence with +inverted commas to show that they are giving his actual words. The +slave-trade had been abolished before he entered Parliament; but +Government was occasionally charged with slackness in adopting some of +the measures necessary to carry out the law, and their supporters were +accused of preserving 'a guilty silence.' Such charges stung Stephen to +the quick. 'I would rather,' he exclaimed (June 15, 1810), 'be on +friendly terms with a man who had strangled my infant son than support +an administration guilty of slackness in suppressing the slave trade.' +'If Lord Castlereagh does not keep to his pledges,' he exclaimed (June +29, 1814, when Romilly spoke of the 'guilty silence'), 'may my God not +spare me, if I spare the noble lord and his colleagues!' The Government +declined to take up a measure for the registration of slaves which +Stephen had prepared, and which was thought to be necessary to prevent +evasions of the law. Thereupon he resigned, in spite of all entreaties, +accepting the Chiltern Hundreds, April 14, 1815. + +Brougham warmly praises his independence, and wishes that those who had +spoken slightingly of his eloquence would take to heart his example. +Stephen had in 1811 been rewarded for his support of the Orders in +Council by a Mastership in Chancery. Romilly observes that the +appointment was questionable, because Stephen, though he was fully +qualified by his abilities, was not sufficiently versed in the law. His +friends said that it was no more than a fair compensation for the +diminution of the prize business which resulted from the new +regulations. He held the office till 1831, when failing health caused +his retirement. He lived for many years at Kensington Gore on the site +of the present Lowther Lodge; and there from 1809 to 1821 Wilberforce +was his neighbour. His second wife, Wilberforce's sister, died in +October 1816. After leaving Parliament, he continued his active crusade +against slavery. He published, it is said, four pamphlets in 1815; and +in 1824 brought out the first volume of his 'Slavery of the British West +India Colonies delineated.' This is an elaborate digest of the slave +laws; and it was followed in 1830 by a second volume describing the +actual working of the system. From about 1819 Stephen had a small +country house at Missenden, Bucks.[16] Here he was occasionally visited +by his brother-in-law, and a terrace upon which they used to stroll is +still known as 'Wilberforce's Walk.' Stephen had a keen love of country +scenery and had inherited from his father a love of long daily walks. I +record from tradition one story of his prowess. In the early morning of +his seventieth birthday, it is said, he left Missenden on foot, walked +twenty-five miles to Hampstead, where he breakfasted with a son-in-law, +thence walked to his office in London, and, after doing his day's work, +walked out to Kensington Gore in the evening. It was a good performance, +and I hope not injurious to his health, nor can I accept the suggestion +that the old gentleman may have taken a lift in a pony carriage by which +he used to be followed in his walks. He certainly retained his vigour, +although he had suffered from some serious illnesses. He was attacked by +yellow fever in the West Indies, when his brother William and another +doctor implored him to let them bleed him. On his obstinate refusal, +they turned their backs in consultation, when he suddenly produced a +bottle of port from under his pillow and took it off in two draughts. +Next day he left his bed and defended a disregard of professional advice +which had been suggested by previous observations. He became a staunch +believer in the virtues of port, and though he never exceeded a modest +half-bottle, drank it steadily till the last. He was, I am told, and a +portrait confirms the impression, a very handsome old man with a +beautiful complexion, masses of white hair, and a keen thoughtful face. +He died at Bath, October 10, 1832. He was buried at Stoke Newington by +the side of his mother. There Wilberforce had promised to be buried +by his friend; but for him Westminster Abbey was a fitter +resting-place.[17] + +The Master and his elder brother had retrieved the fortunes of the +family. William returned to England, and died about 1807. He left a +family by his wife, Mary Forbes, and his daughter Mary became the wife +of Archdeacon Hodson and the mother of Hodson of 'Hodson's Horse.' The +Master's younger brother, John, also emigrated to St. Christopher's, +practised at the bar, and ultimately became Judge of the Supreme Court +of New South Wales in 1825. He died at Sydney in 1834. John's fourth +son, Alfred, born at St. Christopher's, August 20, 1802, was called to +the bar at Lincoln's Inn in 1823, became in 1825 Solicitor-General of +Tasmania, in 1839 judge, and in 1843 Chief Justice, of New South Wales. +He retired in 1873, and was for a time Lieutenant-Governor of the +Colony. He received many honours, including the Grand Cross of the Order +of St. Michael and St. George, and a seat in the Privy Council; and, +from all that I have heard, I believe that he fully deserved them. He +took an important part in consolidating the criminal law of the +colonies, and near the end of his long career (at the age of 89) became +conspicuous in advocating a change in the law of divorce. The hardships +suffered by women who had been deserted by bad husbands had excited his +sympathy, and in spite of much opposition he succeeded in obtaining a +measure for relief in such cases. Sir Alfred died on October 15, 1894. +He was twice married, and had five sons and four daughters by one +marriage and four sons and five daughters by the other. One of his sons +is a judge in the colony, and I believe that at the period of his death +he had considerably more than a hundred living descendants in three +generations. He was regarded with universal respect and affection as a +colonial patriarch, and I hope that his memory may long be preserved and +his descendants flourish in the growing world of Australia. To the very +end of his life, Sir Alfred maintained his affectionate relations with +his English relatives, and kept up a correspondence which showed that +his intellectual vigour was unabated almost to the last. + + +III. MASTER STEPHEN'S CHILDREN + +I have now to speak of the generation which preceded my own, of persons +who were well known to me, and who were the most important figures in +the little world in which my brother and I passed our infancy. James +Stephen, the Master, was survived by six children, of whom my father was +the third. I will first say a few words of his brothers and sisters. The +eldest son, William, became a quiet country clergyman. He was vicar of +Bledlow, Bucks (for nearly sixty years), and of Great Stagsden, Beds, +married a Miss Grace, but left no children, and died January 8, 1867. I +remember him only as a mild old gentleman with a taste for punning, who +came up to London to see the Great Exhibition of 1851, and then for the +first time had also the pleasure of seeing a steamboat. Steamboats are +rare in the Buckinghamshire hills, among which he had vegetated ever +since their invention. + +Henry John, the second son, born January 18, 1787, was at the Chancery +bar. He married his cousin, Mary Morison, and from 1815 till 1832 he +lived with his father at Kensington Gore. A nervous and retiring temper +prevented him from achieving any great professional success, but he was +one of the most distinguished writers of his time upon legal subjects. +His first book, 'Treatise on the Principles of Pleading in Civil +Actions,' originally published in 1824, has gone through many editions +both in England and America. Chancellor Kent, as Allibone's dictionary +informs me, calls it 'the best book that ever was written in explanation +of the science,' and many competent authorities have assured me that it +possesses the highest merits as a logical composition, although the law +of which it treats has become obsolete. The reputation acquired by this +book led to his appointment to a seat in the Common Law Commission +formed in 1828; and in the same year he became serjeant-at-law. His +brother commissioners became judges, but his only promotion was to a +commissionership of bankruptcy at Bristol in 1842.[18] In 1834 he +published a 'Summary of the Criminal Law,' which was translated into +German. His edition of Blackstone's Commentaries first appeared in 1841. +It contained from the first so much of his own work as to be almost an +independent performance. In later editions he introduced further changes +to adapt it to later legislation, and it is still a standard book. + +He lived after the Bristol appointment at Cleevewood in the parish of +Mangotsfield. He retired in February 1854, and lived afterwards in +Clifton till his death on November 28, 1864. I remember him as a gentle +and courteous old man, very shy, and, in his later years, never leaving +his house, and amusing himself with speculating upon music and the +prophecies. He inherited apparently the nervous temperament of his +family with less than their usual dash of the choleric.[19] My uncle, +Sir George, declares that the serjeant was appointed to a judgeship by +Lord Lyndhurst, but immediately resigned, on the ground that he felt +that he could never bear to pass a capital sentence.[20] I record the +anecdote, not as true (I have reasons for thinking it erroneous), but as +indicating the impression made by his character. + +The fourth brother, George, born about 1794, was a man of very different +type. In him appeared some of the characteristics of his irascible and +impetuous grandfather. His nature was of coarser fibre than that of his +sensitive and nervous brothers. He was educated at Magdalene College, +Cambridge; and was afterwards placed in the office of the Freshfields, +the eminent firm of solicitors. He had, I have been told, an offer of a +partnership in the firm, but preferred to set up for himself. He was +employed in the rather unsavoury duty of procuring evidence as to the +conduct of Queen Caroline upon the Continent. In 1826 he undertook an +inquiry ordered by the House of Commons in consequence of complaints as +to the existence of a slave trade in Mauritius. He became acquainted +with gross abuses, and resolved thereupon to take up the cause with +which his family was so closely connected. He introduced himself to +O'Connell in order to learn some of the secrets of the great art of +agitation. Fortified by O'Connell's instructions, he proceeded to +organise the 'celebrated Agency Committee.' This committee, headed by +Zachary Macaulay, got up meetings and petitions throughout the country, +and supported Buxton in the final assault upon slavery. For his services +in the cause, George Stephen was knighted in 1838. He showed a versatile +ability by very miscellaneous excursions into literature. He wrote in +1837 'Adventures of a Gentleman in search of a Horse,' which became +popular, and proved that, besides understanding the laws relating to the +subject, he was the only one, as I believe, of his family who could +clearly distinguish a horse from a cow. A very clever but less judicious +work was the 'Adventures of an Attorney in search of Practice,' first +published in 1839, which gave or was supposed to give indiscreet +revelations as to some of his clients. Besides legal pamphlets, he +proved his sound Evangelicalism by a novel called 'The Jesuit at +Cambridge' (1847), intended to unveil the diabolical machinations of the +Catholic Church. An unfortunate catastrophe ruined his prospects. He had +founded a society for the purchase of reversions and acted as its +solicitor. It flourished for some years, till misunderstandings arose, +and Sir George had to retire, besides losing much more than he could +afford. He then gave up the profession which he had always disliked, was +called to the bar in 1849 and practised for some years at Liverpool, +especially in bankruptcy business. At last he found it necessary to +emigrate and settled at Melbourne in 1855. He found the colonists at +least as perverse as the inhabitants of his native country. He wrote a +'Life of Christ' (not after the plan of Renan) intended to teach them a +little Christianity, and a (so-called) life of his father, which is in +the main an exposition of his own services and the ingratitude of +mankind. The state of Australian society seemed to him to justify his +worst forebodings; and he held that the world in general was in a very +bad way. It had not treated him too kindly; but I fear that the +complaints were not all on one side. He was, I suppose, one of those +very able men who have the unfortunate quality of converting any +combination into which they enter into an explosive compound. He died at +Melbourne, June 20, 1879.[21] + +The Master's two daughters were Sibella, born 1792, and Anne Mary, whose +birth caused the death of her mother in December 1796. Sibella married +W. A. Garratt, who was second wrangler and first Smith's prizeman in +1804. He was a successful barrister and a man of high character, though +of diminutive stature. 'Mr. Garratt,' a judge is reported to have said +to him, 'when you are addressing the court you should stand up.' 'I am +standing up, my lord.' 'Then, Mr. Garratt, you should stand upon the +bench.' 'I am standing upon the bench, my lord.' He had been +disinherited by his father, I have heard, for preferring a liberal +profession to trade, but upon his father's death his brothers made over +to him the share which ought to have been left to him. He was for many +years on the Committee of the Church Missionary Society, and wrote in +defence of Evangelical principles.[22] + +His houses at Hampstead and afterwards at Brighton were among our +youthful resorts; and my aunt remains in my memory as a gentle, kindly +old lady, much afflicted by deafness. Mr. Garratt died in 1858, aged 77, +and his wife at the same age on February 7, 1869. + +Anne Mary, my other aunt, married Thomas Edward Dicey. He was a +schoolfellow and college friend of my father. I may observe, for the +sake of Cambridge readers, that, after passing his first year of +university life at Oxford, he came to Cambridge ignorant of mathematics +and in delicate health, which prevented him from reading hard. In spite +of this, he was senior wrangler in 1811--a feat which would now be +impossible for a Newton. He was the calmest and gentlest of human +beings, and to his calmness was attributable the fact that he lived till +1858, although when he was twenty the offices refused to insure his life +for a year on any terms. Those who knew him best regarded him as a man +of singular wisdom and refinement. He lived, till he came to London for +the later education of his boys, in a small country house at Claybrook, +near Lutterworth, and was proprietor of the 'Northampton Mercury,' one +of the oldest papers in England, founded, I believe, by his grandfather. +This Claybrook house was the scene of some of our happiest childish +days. My aunt was a most devoted mother of four sons, whose early +education she conducted in great part herself. In later years she lived +in London, and was the most delightful of hostesses. Her conversation +proved her to possess a full share of the family talents, and although, +like her sister, she suffered from deafness, a talk with her was, to my +mind at least, as great a treat as a talk with the most famous +performers in the social art. After her husband's death, she was +watched by her youngest son, Frank, who had become an artist, with a +tender affection such as is more frequently exhibited by a daughter to +an infirm father. She died on October 28, 1878, and has been followed by +two of her sons, Henry and Frank. The two surviving sons, Edward and +Albert Venn Dicey, Vinerian professor of Law at Oxford, are both well +known in the literary and political world. + +I must now tell so much as I know, and is relevant to my purpose, of my +father's life. James Stephen, fourth at least of the name, and third son +of the Master, was born January 3, 1789, at Lambeth, during his father's +visit to England. He had an attack of small-pox during his infancy, +which left a permanent weakness of eyesight. The Master's experience had +not taught him the evils of desultory education. James, the younger, +was, I believe, under various schoolmasters, of whom I can only mention +John Prior Estlin, of St. Michael's Hill, Bristol, a Unitarian, and the +Rev. H. Jowett, of Little Dunham, Norfolk, who was one of the adherents +to Evangelicalism. The change probably marks the development of his +father's convictions. He entered Trinity Hall, Cambridge, in 1806. At +that time the great Evangelical leader at Cambridge was Isaac Milner, +the President of Queens' College. Milner's chief followers were William +Farish, of Magdalene, and Joseph Jowett, of Trinity Hall, both of them +professors. Farish, as I have said, married my grandfather's sister, and +the colleges were probably selected for my father and his brother George +with a view to the influence of these representatives of the true faith. +The 'three or four years during which I lived on the banks of the Cam,' +said my father afterwards,[23] 'were passed in a very pleasant, though +not a very cheap, hotel. But had they been passed at the Clarendon, in +Bond Street, I do not think that the exchange would have deprived me of +any aids for intellectual discipline or for acquiring literary and +scientific knowledge.' That he was not quite idle I infer from a copy of +Brotier's 'Tacitus' in my possession with an inscription testifying that +it was given to him as a college prize. He took no university honours, +took the degree of LL.B. in 1812, and was called to the bar at Lincoln's +Inn November 11, 1811. His father had just become Master in Chancery, +and was able to transfer some of his clients to the son. James the +younger thus gained some experience in colonial matters, and 'employed +himself in preparing a digest of the colonial laws in general.'[24] He +obtained leave from the third Earl Bathurst, then and for many years +afterwards the head of the Colonial Department, to examine the official +records for this purpose. In 1813 Lord Bathurst, who was in general +sympathy with the opinions of the Clapham sect, appointed James Stephen +Counsel to the Colonial Department. His duties were to report upon all +acts of colonial legislature. He received a fee of three guineas for +each act, and the office at first produced about 300_l._ a year. After a +time the post became more laborious. He was receiving 1,000_l._ a year +some ten years after his appointment, with, of course, a corresponding +increase of work.[25] The place was, however, compatible with the +pursuit of the profession, and my father in a few years was making +3,000_l._ a year, and was in a position which gave him as fair a +prospect of obtaining professional honours as was enjoyed by any man of +his standing. The earliest notice which I have found of him from an +outsider is a passage in Crabb Robinson's diaries.[26] Robinson met him +on July 10, 1811, and describes him as a 'pious sentimentalist and +moralist,' who spoke of his prospects 'with more indifference than was +perhaps right in a layman.' The notice is oddly characteristic. From +1814 my father was for nine years a member of the committee of the +Church Missionary Society, after which time his occupations made +attendance impossible. I have already indicated the family connection +with the Clapham sect, and my father's connection was now to be drawn +still closer. On December 22, 1814, he married Jane Catherine Venn, +second daughter of the Rev. John Venn, of Clapham. + + +IV. THE VENNS + +My brother was of opinion that he inherited a greater share of the Venn +than of the Stephen characteristics. I certainly seem to trace in him a +marked infusion of the sturdy common sense of the Venns, which tempered +the irritable and nervous temperament common to many of the Stephens. +The Venns were of the very blue blood of the party. They traced their +descent through a long line of clergymen to the time of Elizabeth.[27] +The troubles of two loyalist Venns in the great rebellion are briefly +commemorated in Walker's 'Sufferings of the Clergy.' The first Venn who +is more than a name was a Richard Venn, who died in 1739. His name +occasionally turns up in the obscurer records of eighteenth-century +theology. He was rector of St. Antholin's, in the city of London, and +incurred the wrath of the pugnacious Warburton and of Warburton's friend +(in early days) Conyers Middleton. He ventured to call Middleton an +'apostate priest'; and Middleton retorted that if he alluded to a priest +as the 'accuser,' everyone would understand that he meant to refer to +Mr. Venn. In fact, Venn had the credit of having denounced Thomas +Bundle, who, according to Pope, 'had a heart,' and according to Venn was +a deist in disguise. Bundle's reputation was so far damaged that his +theology was thought too bad for Gloucester, and, like other pieces of +damaged goods, he was quartered upon the Irish Church. + +Richard Venn married the daughter of the Jacobite conspirator John +Ashton, executed for high treason in 1691. His son Henry, born March 2, +1724, made a more enduring mark and became the chief light of the +movement which was contemporaneous with that led by Wesley and +Whitefield, though, as its adherents maintained, of independent origin. +He was a sturdy, energetic man. As a boy he had shown his principles by +steadily thrashing the son of a dissenting minister till he became the +terror of the young schismatic. He played (his biographer says) in 1747 +for Surrey against all England, and at the end of the match gave his bat +to the first comer, saying, 'I will never have it said of me, Well +struck, Parson!' He was ordained a few days later, and was 'converted by +Law's "Serious Call."' While holding a curacy at Clapham he became a +friend of John Thornton, father of the better known Henry Thornton. John +was a friend of John Newton and of the poet Cowper, to whom he allowed +money for charitable purposes, and both he and his son were great lights +at Clapham. From 1759 to 1771 Venn was vicar of Huddersfield, and there +became famous for eloquence and energy. His 'Complete Duty of Man'--the +title is adopted in contrast to the more famous 'Whole Duty of Man'--was +as the sound of a trumpet to the new party. For three generations it was +the accepted manual of the sect and a trusted exposition of their +characteristic theology. Venn's health suffered from his pastoral +labours at Huddersfield; and from 1771 till near his death (June 24, +1797) he was rector of Yelling, in Huntingdonshire. There his influence +extended to the neighbouring University of Cambridge. The most eminent +Cambridge men of the day, Paley, and Watson, and Hey, were tending to a +theology barely distinguishable from the Unitarianism which some of them +openly adopted. But a chosen few, denounced by their enemies as +methodistical, sought the spiritual guidance of Henry Venn. The most +conspicuous was Charles Simeon (1759-1836), who for many years was the +object of veneration and of ridicule for his uncouth eloquence in the +pulpit of Trinity Church. Even to my own day, his disciples and +disciples' disciples were known to their opponents as 'Sims.'[28] + +John Venn, son of this Henry Venn, born at Clapham in 1759, was brought +up in the true faith. He was a pupil of Joseph Milner, elder brother of +the more famous Isaac Milner, and was afterwards, like his father, at +Sidney Sussex College. Simeon was one of his intimate friends. In 1792 +Venn became rector of Clapham; and there provided the spiritual food +congenial to the Thorntons, the Shores, the Macaulays, the Wilberforces, +and the Stephens. The value of his teaching may be estimated by any one +who will read three volumes of sermons published posthumously in 1814. +He died July 1, 1813; but his chief claim to remembrance is that he was +the projector and one of the original founders of the Church Missionary +Society, in 1799, which was, as it has continued to be, the most +characteristic product of the evangelical party.'[29] + +John Venn's children were of course intimate with the Stephens. In later +life the sons, Henry and John, had a great influence upon my father; +Henry in particular was a man of very remarkable character. He was +educated by his father till 1813, when he was sent to live with Farish, +then Lucasian professor and resident at Chesterton, close to Cambridge. +He was at Queen's College, then flourishing under the patronage of +evangelical parents attracted by Milner's fame; was nineteenth wrangler +in 1818, and for a time was fellow and tutor of his college. In 1827 +Wilberforce gave him the living of Drypool, a suburb of Hull, and there +in 1829 he married Martha, fourth daughter of Nicholas Sykes, of +Swanland, Yorkshire. In 1834 he became vicar of St. John's, Holloway, in +the parish of Islington. About 1838 he became subject to an affection of +the heart caused mainly by his efforts in carrying his wife upstairs +during her serious illness. The physician told him that the heart might +possibly adapt itself to a new condition, but that the chances were +greatly in favour of a fatal end to the illness. He was forced to retire +for two years from work, while his wife's illness developed into a +consumption. She died March 21, 1840. Venn's closest relations used to +speak with a kind of awe of the extraordinary strength of his conjugal +devotion. He was entreated to absent himself from some of the painful +ceremonials at her funeral, but declined. 'As if anything,' he said, +'could make any difference to me now.' His own health, however, +recovered contrary to expectation; and he resolutely took up his duties +in life. On October 5, 1841 he was appointed honorary secretary to the +Church Missionary Society, having been on the Committee since 1819, and +he devoted the rest of his life to its service with unflagging zeal. He +gave up his living of 700_l._ a year and refused to take any +remuneration for his work. He was appointed by Bishop Blomfield to a +prebend at St. Paul's, but received and desired no other preferment. He +gradually became infirm, and a few months before his death, January 12, +1873, was compelled to resign his post. Henry Venn laboured through life +in the interests of a cause which seemed to him among the highest, and +which even those who hold entirely different opinions must admit to be a +worthy one, the elevation that is, moral and spiritual, of the lower +races of mankind. He received no rewards except the approval of his +conscience and the sympathy of his fellows; and he worked with an energy +rarely paralleled by the most energetic public servant. His labours are +described in a rather shapeless book[30] to which I may refer for full +details. But I must add a few words upon his character. Venn was not an +eloquent man either in the pulpit or on paper; nor can I ascribe him any +power of speculative thought. He had been from youth steeped in the +evangelical doctrine, and was absolutely satisfied with it to the last. +'I knew,' he once said, 'as a young man all that could be said against +Christianity, and I put the thoughts aside as temptations of the devil. +They have never troubled me since.' Nor was he more troubled by the +speculative tendencies of other parties in the Church. His most obvious +mental characteristic was a shrewd common sense, which one of his +admirers suggests may have been caught by contagion in his Yorkshire +living. In truth it was an innate endowment shared by others of his +family. In him it was combined with a strong sense of humour which is +carefully kept out of his writing, and which, as I used to fancy, must +have been at times a rather awkward endowment. The evangelical party has +certain weaknesses to which, so far as I know, my uncle contrived to +shut his eyes. The humour, however, was always bubbling up in his talk, +and combined as it was with invariable cheeriness of spirit, with a +steady flow of the strongest domestic affection, and with a vigorous and +confident judgment, made him a delightful as well as an impressive +companion. Although outside of the paths which lead to preferment or to +general reputation, he carried a great weight in all the counsels of his +party. His judgment, no doubt, entitled him to their respect. Though a +most devoted clergyman, he had some of the qualities which go to make a +thoroughly trustworthy lawyer. He was a marked exception to the famous +observation of Clarendon that 'the clergymen understand the least, and +take the worst measure of human affairs of all mankind that can write +and read.' Henry Venn's example showed that the clergyman's gown need +not necessarily imply disqualification for a thorough man of business. +He was a man to do thoroughly whatever he undertook. 'What a mercy it +is,' said his sister Emelia, 'that Henry is a good man, for good or bad +he could never repent.' + +His younger brother, John, was a man of much less intellectual force but +of singular charm of character. In 1833 he became incumbent of a church +at Hereford in the gift of the Simeon trustees, and lived there till his +death in 1890, having resigned his living about 1870. He had the +simplicity of character of a Dr. Primrose, and was always overflowing +with the kindliest feelings towards his relatives and mankind in +general. His enthusiasm was, directed not only to religious ends but to +various devices for the physical advantage of mankind. He set up a steam +corn mill in Hereford, which I believe worked very successfully for the +supply of pure flour to his parishioners, and he had theories about the +production of pigs and poultry upon which he could dilate with amusing +fervour. He showed his principles in a public disputation with a Roman +Catholic priest at Hereford. I do not know that either of them converted +anybody; but John Venn's loveableness was not dependent upon dialectical +ability. He was accepted, I may say, as the saint of our family; and +Aylstone Hill, Hereford, where he lived with his unmarried sister +Emelia, (a lady who in common sense and humour strongly resembled her +brother Henry), was a place of pilgrimage to which my father frequently +resorted, and where we all found a model of domestic happiness. + +The youngest sister, Caroline, married the Rev. Ellis Batten, a master +at Harrow School. He died young in 1830, and she was left with two +daughters, the elder of whom, now Mrs. Russell Gurney, survives, and was +in early years one of the most familiar members of our inner home +circle. + +I must now speak of my mother. 'In one's whole life,' says Gray, 'one +can never have any more than a single mother'--a trite observation, he +adds, which yet he never discovered till it was too late. Those who have +made the same discovery must feel also how impossible it is to +communicate to others their own experience, and indeed how painful it is +even to make the attempt. Almost every man's mother, one is happy to +observe, is the best of mothers. I will only assert what I could prove +by evidence other than my own impressions. My mother, then, must have +been a very handsome young woman. A portrait--not a very good +one--shows that she had regular features and a fine complexion, which +she preserved till old age. Her beauty was such as implies a thoroughly +good constitution and unbroken health. She was too a rather romantic +young lady. She knew by heart all such poetry as was not excluded from +the sacred common; she could repeat Cowper and Wordsworth and Campbell +and Scott, and her children learnt the 'Mariners of England' and the +'Death of Marmion' from her lips almost before they could read for +themselves. She accepted, of course, the religious opinions of her +family, but in what I may call a comparatively mild form. If she had not +the humour of her brother Henry and her sister Emelia, she possessed an +equal amount of common sense. Her most obvious characteristic as I knew +her was a singular serenity, which indicated a union of strong affection +and sound judgment with an entire absence of any morbid tendencies. Her +devotion to her husband and children may possibly have influenced her +estimate of their virtues and talents. But however strong her belief in +them, it never betrayed her to partiality of conduct. We were as sure of +her justice as of her affection. Her servants invariably became attached +to her. Our old nurse, Elizabeth Francis, lived with us for forty-three +years, and her death in 1865 was felt as a deep family sorrow. The +quaint Yorkshire cook, whose eccentricities had given trouble and whose +final parting had therefore been received with equanimity on the eve of +a journey abroad, was found calmly sitting in our kitchen when we +returned, and announcing, truly as it turned out, that she proposed to +stay during the rest of my mother's life. But this domestic loyalty was +won without the slightest concession of unusual privileges. Her +characteristic calmness appeared in another way. She suffered the +heaviest of blows in the death of her husband, after forty-five years +of unbroken married happiness, and of her eldest son. On both occasions +she recovered her serenity and even cheerfulness with marked rapidity, +not certainly from any want of feeling, but from her constitutional +incapacity for dwelling uselessly upon painful emotions. She had indeed +practised cheerfulness as a duty in order to soothe her husband's +anxieties, and it had become part of her character. The moral +equilibrium of her nature recovered itself spontaneously as wounds cure +by themselves quickly in thoroughly sound constitutions. She devoted her +spare time in earlier years and almost her whole time in later life to +labours among the poor, but was never tempted to mere philanthropic +sentimentalism. A sound common sense, in short, was her predominant +faculty; and, though her religious sentiments were very strong and deep, +she was so far from fanatical that she accepted with perfect calmness +the deviations of her children from the old orthodox faith. My brother +held, rightly as I think, that he inherited a large share of these +qualities. To my father himself, the influence of such a wife was of +inestimable value. He, the most nervous, sensitive of men, could always +retire to the serene atmosphere of a home governed by placid common +sense and be soothed by the gentlest affection. How necessary was such a +solace will soon be perceived. + + +V. JAMES STEPHEN, COLONIAL UNDER-SECRETARY + +The young couple began prosperously enough. My father's business was +increasing; and after the peace they spent some summer vacations in +visits to the continent. They visited Switzerland, still unhackneyed, +though Byron and Shelley were celebrating its charms. Long afterwards I +used to hear from my mother of the superlative beauties of the Wengern +Alp and the Staubbach (though she never, I suspect, read 'Manfred'), and +she kept up for years a correspondence with a monk of the hospital on +the St. Bernard. Her first child, Herbert Venn Stephen, was born +September 30, 1822; and about this time a change took place in my +father's position. He had a severe illness, caused, it was thought, by +over-work. He had for a time to give up his chancery business and then +to consider whether he should return to it and abandon the Colonial +Office, or give up the bar to take a less precarious position now +offered to him in the office. His doubts of health and his new +responsibilities as a father decided him. On January 25, 1825, he was +appointed Counsel to the Colonial Office, and on August 2 following +Counsel to the Board of Trade, receiving 1,500_l._ a year for the two +offices, and abandoning his private practice. A daughter, Frances +Wilberforce, was born on September 8, 1824, but died on July 22 +following. A quaint portrait in which she is represented with her elder +brother, in a bower of roses, is all that remains to commemorate her +brief existence. For some time Herbert was an only son; and a delicate +constitution made his education very difficult. My father hit upon the +most successful of several plans for the benefit of his children when, +at the beginning of 1829, he made arrangements under which Frederick +Waymouth Gibbs became an inmate of our family in order to give my +brother a companion. Although this plan was changed three years later, +Frederick Gibbs became, as he has ever since remained, a kind of adopted +brother to us, and was in due time in the closest intimacy with my +brother James Fitzjames. + +After his acceptance of the permanent appointment my father's energies +were for twenty-two years devoted entirely to the Colonial Office. I +must dwell at some length upon his character and position, partly for +his sake and partly because it is impossible without understanding them +to understand my brother's career. + +My brother's whole life was profoundly affected, as he fully recognised, +by his father's influence. Fitzjames prefixed a short life of my father +to a posthumous edition of the 'Essays in Ecclesiastical Biography.' The +concluding sentence is significant of the writer's mood. 'Of Sir James +Stephen's private life and character,' he says, 'nothing is said here, +as these are matters with which the public has no concern, and on which +the evidence of his son would not be impartial.' My brother would, I +think, have changed that view in later years. I, at any rate, do not +feel that my partiality, whatever it may be, is a disqualification for +attempting a portrait. And, though the public may have no right to +further knowledge, I think that such part of the public as reads these +pages may be the better for knowing something more of a man of whom even +a son may say that he was one of the conspicuously good and able men of +his generation. + +The task, however, is no easy one. His character, in the first place, is +not one to be defined by a single epithet. 'Surely,' said his friend Sir +Henry Taylor to him upon some occasion, 'the simple thing to do is so +and so.' He answered doubtfully, adding, 'The truth is I am _not_ a +simple man.' 'No,' said Taylor, 'you are the most composite man that I +have met with in all my experience of human nature.'[31] Taylor entered +the Colonial Office in the beginning of 1824, and soon formed an +intimate and lifelong friendship with his colleague. His autobiography +contains some very vivid records of the impression made by my father's +character upon a very fine observer in possession of ample opportunities +for knowledge. It does something, though less than I could wish, to +diminish another difficulty which encounters me. My father's official +position necessarily throws an impenetrable veil over the work to which +his main energies were devoted. His chief writings were voluminous and +of great practical importance: but they repose in the archives of the +Colonial Office; and even such despatches of his as have seen the light +are signed by other names, and do not necessarily represent his +opinions. 'The understanding,' says my brother in the 'Life,' 'upon +which permanent offices in the civil service of the Crown are held is +that those who accept them shall give up all claim to personal +reputation on the one hand and be shielded from personal responsibility +on the other.' Of this compact, as Fitzjames adds, neither my father nor +his family could complain. His superiors might sometimes gain credit or +incur blame which was primarily due to the adoption of his principles. +He was sometimes attacked, on the other hand, for measures attributed to +his influence, but against which he had really protested, although he +was precluded from any defence of his conduct. To write the true history +of our colonial policy in his time would be as much beyond my powers as +it is outside my purpose; to discriminate his share in it would probably +be now impossible for anyone. I can only take a few hints from Sir Henry +Taylor and from my brother's account which will sufficiently illustrate +some of my father's characteristics. + +'For a long period,' says Taylor,[32] 'Stephen might better have been +called the "Colonial Department" itself than "Counsel to the Colonial +Department."' During Lord Glenelg's tenure of office (1835-1839), and +for many years before and after, 'he literally ruled the Colonial +empire.'[33] This involved unremitting labour. Taylor observes that +Stephen 'had an enormous appetite for work,' and 'rather preferred not +to be helped. I,' he adds, humorously, 'could make him perfectly welcome +to any amount of it.' For years he never left London for a month, and, +though in the last five years preceding his retirement in 1847, he was +absent for rather longer periods, he took a clerk with him and did +business in the country as regularly as in town. + +His duties were of the most various kind. The colonies, as my brother +observes, were a collection of states varying from youthful nations like +Canada down to a small settlement of Germans on the rock of Heligoland; +their populations differed in race, laws, religion, and languages; the +authority of the Crown varied from absolute power over an infant +settlement to supremacy over communities in some essential respects +independent. My father's duty was to be familiar with every detail of +these complicated relations, to know the state of parties and local +politics in each colony, and to be able to advise successive Secretaries +of State who came without special preparation to the task. He had to +prepare drafts of all important despatches and of the numerous Acts of +Parliament which were required during a period of rapid and important +changes. 'I have been told,' says my brother, elsewhere,[34] that 'he +was a perfectly admirable Under-Secretary of State, quick, firm, +courageous, and a perfect master of his profession and of all the +special knowledge which his position required, and which, I believe, no +other man in England possessed to anything like the same extent.' + +A man of long experience, vast powers of work, and decided views +naturally obtained great influence with his superiors; and that such an +influence was potent became generally believed among persons interested +in and often aggrieved by the policy of the Government. Stephen was +nicknamed as 'King Stephen,' or 'Mr. Over-Secretary Stephen,' or 'Mr. +Mother-Country Stephen.' The last epithet, attributed to Charles Buller, +meant that when the colonies were exhorted to pay allegiance to the +mother country they were really called upon to obey the irrepressible +Under-Secretary. I dimly divine, though I am not much of a politician, +that there is an advantage in criticising the permanent official in a +department. He cannot answer an attack upon him, and it is also an +attack upon the superior who has yielded to his influence. At any rate, +though my father received the warmest commendation from his official +superiors, he acquired a considerable share of unpopularity. For this +there were other reasons, of which I shall presently speak. + +Little as I can say of the details of this policy in which he was +concerned, there are one or two points of which I must speak. My father +had accepted the appointment, according to Taylor, partly with the view +of gaining an influence upon the slavery question. In this, says Taylor, +he was eminently successful, and his success raised the first outcry +against him.[35] His family and friends were all, as I have shown, +deeply engaged in the anti-slavery agitation. As an official he could of +course take no part in such action, and his father had to give solemn +assurances that the son had given him no information. But the power of +influencing the Government in the right direction was of equal +importance to the cause. The elaborate Act, still in force, by which +previous legislation against the slave trade was finally consolidated +and extended was passed in 1824 (5 George IV. cap. 113). It was drawn +by my father and dictated by him in one day and at one sitting.[36] It +fills twenty-three closely printed octavo pages. At this time the +Government was attempting to adopt a middle course between the +abolitionists and the planters by passing what were called 'meliorating +Acts,' Acts, that is, for improving the treatment of the slaves. The +Colonial Assemblies declined to accept the proposals. The Colonial +Office remonstrated, obtained reports and wrote despatches, pointing out +any abuses discovered: the despatches were laid before Parliament and +republished by Zachary Macaulay in the 'Anti-slavery Reporter.' +Agitation increased. An insurrection of slaves in Jamaica in 1831, +cruelly suppressed by the whites, gave indirectly a death blow to +slavery. Abolition, especially after the Reform Bill, became inevitable, +but the question remained whether the grant of freedom should be +immediate or gradual, and whether compensation should be granted to the +planters. The problem had been discussed by Stephen, Taylor, and Lord +Howick, afterwards Earl Grey (1802-1894), and various plans had been +considered. In March 1833, however, Mr. Stanley, afterwards Lord Derby, +became head of the Colonial Office; and the effect was at first to +reduce Stephen and Taylor to their 'original insignificance.' They had +already been attacked in the press for taking too much upon themselves, +and Stanley now prepared a measure without their assistance. He found +that he had not the necessary experience for a difficult task, and was +soon obliged to have recourse to Stephen, who prepared the measure which +was finally passed. The delay had made expedition necessary if slavery +was not to continue for another year. My father received notice to draw +the Act on Saturday morning. He went home and completed his task by the +middle of the day on Monday. The Act (3 & 4 William IV. c. 73) contains +sixty-six sections, fills twenty-six pages in the octavo edition of the +Statute-book, and creates a whole scheme of the most intricate and +elaborate kind. The amanuensis to whom it was dictated used to tell the +story as an illustration of his own physical powers. At that time, as +another clerk in the office tells my brother, 'it was no unusual thing +for your father to dictate before breakfast as much as would fill thirty +sides of office folio paper,' equal to about ten pages of the 'Edinburgh +Review,' The exertion, however, in this instance was exceptional: only +upon one other occasion did my father ever work upon a Sunday; it cost +him a severe nervous illness and not improbably sowed the seed of later +attacks.[37] + +I can say little of my father's action in later years. On September 17, +1834, he was appointed to the newly created office of Assistant +Under-Secretary of State. He had, says Taylor, for many years done the +work of the Under-Secretary, and he objected to doing it any longer on +the same terms. The Under-Secretary complained to Lord Melbourne that +his subordinate desired to supplant him, and got only the characteristic +reply, 'It looks devilishly like it.'[38] In 1836 he had to retire, and +my father became Under-Secretary in his place, with a salary of +2,000_l._ a year, on February 4 of that year, and at the same time gave +up his connection with the Board of Trade. He was actively concerned in +the establishment of responsible government in Canada. The relations +with that colony were, as my brother says, 'confused and entangled in +every possible way by personal and party questions at home and by the +violent dissensions which existed in Canada itself.' The difficulty was +aggravated, he adds, by the fact that my father, whatever his personal +influence, had no authority whatever; and although his principles were +ultimately adopted he had constantly to take part in measures which he +disapproved. 'Stephen's opinions,' says Taylor, 'were more liberal than +those of most of his chiefs, and at one period he gave more power than +he intended to a Canadian Assembly from placing too much confidence in +their intentions.'[39] Upon this matter, however, Taylor admits that he +was not fully informed. I will only add that my father appears to have +shared the opinions then prevalent among the Liberal party that the +colonies would soon be detached from the mother country. On the +appointment of a Governor-General of Canada, shortly before his +resignation of office, he observes in a diary that it is not unlikely to +be the last that will ever be made.[40] + +I have already noticed my father's unpopularity. It was a not unlikely +result of exercising a great and yet occult influence upon a department +of Government which is likely in any case to be more conspicuous for its +failures than for its successes. There were, however, more personal +reasons which I think indicate his peculiar characteristics. I have said +enough to illustrate his gluttony of work. I should guess that, without +intending it, he was also an exacting superior. He probably +over-estimated the average capacity for work of mankind, and condemned +their indolence too unsparingly. Certainly his estimate of the quantity +of good work got out of officials in a public office was not a high one. +Nor, I am sure, did he take a sanguine view of the utility of such work +as was done in the Colonial Office. 'Colonial Office being an Impotency' +(as Carlyle puts it in his 'Reminiscences,' 'as Stephen inarticulately, +though he never said or whispered it, well knew), what could an earnest +and honest kind of man do but try to teach you how not to do it?'[41] I +fancy that this gives in Carryle's manner the unpleasant side of a true +statement. My father gave his whole life to work, which he never thought +entirely satisfactory, although he did his duty without a word of +complaint. Once, when advising Taylor to trust rather to literature than +to Government employment, he remarked, 'You may write off the first +joints of your fingers for them, and then you may write off the second +joints, and all that they will say of you is, "What a remarkably +short-fingered man!"'[42] But he had far too much self-respect to +grumble at the inevitable results of the position. + +My father, however, was a man of exquisitely sensitive nature--a man, as +my mother warned his children, 'without a skin,' and he felt very keenly +the attacks of which he could take no notice. In early days this had +shown itself by a shyness 'remarkable,' says Taylor, beyond all 'shyness +that you could imagine in anyone whose soul had not been pre-existent in +a wild duck.'[43] His extreme sensibility showed itself too in other +ways. He was the least sanguine of mankind. He had, as he said in a +letter, 'a morbidly vivid perception of possible evils and remote +dangers.' A sensitive nature dreads nothing so much as a shock, and +instinctively prepares for it by always anticipating the worst. He +always expected, if I may say so, to be disappointed in his +expectations. The tendency showed itself in a general conviction that +whatever was his own must therefore be bad. He could not bear to have a +looking-glass in his room lest he should be reminded of his own +appearance. 'I hate mirrors vitrical and human,' he says, when wondering +how he might appear to others. He could not bear that his birthday +should be even noticed, though he did not, like Swift, commemorate it by +a remorseful ceremonial. He shrank from every kind of self-assertion; +and in matters outside his own province often showed to men of abilities +very inferior to his own a deference which to those who did not know him +might pass for affectation. The life of a recluse had strong attractions +for him. He was profoundly convinced that the happiest of all lives was +that of a clergyman, who could devote himself to study and to the quiet +duties of his profession. Circumstances had forced a different career +upon him. He had as a very young man taken up a profession which is not +generally supposed to be propitious to retiring modesty; and was ever +afterwards plunged into active business, which brought him into rough +contact with politicians and men of business of all classes. The result +was that he formed a manner calculated to shield himself and keep his +interlocutors at a distance. It might be called pompous, and was at any +rate formal and elaborate. The natural man lurked behind a barrier of +ceremony, and he rarely showed himself unless in full dress. He could +unbend in his family, but in the outer world he put on his defensive +armour of stately politeness, which even for congenial minds made +familiarity difficult if it effectually repelled impertinence. But +beneath this sensitive nature lay an energetic and even impetuous +character, and an intellect singularly clear, subtle, and decisive. His +reasons were apt to be complicated, but he came to very definite +results, and was both rapid and resolute in action. He had 'a strong +will,' says Taylor, 'and great tenacity of opinion. When he made a +mistake, which was very seldom considering the prodigious quantity of +business he despatched, his subordinates could rarely venture to point +it out; he gave them so much trouble before he could be evicted from his +error.' In private life, as Taylor adds, his friends feared to suggest +any criticisms; not because he resented advice but because he suffered +so much from blame. + +Another peculiarity was oddly blended with this. Among his topics of +self-humiliation, sufficiently frequent, one was his excess of +'loquacity.' A very shy man, it is often remarked, may shrink from +talking, but when he begins to talk he talks enormously. My father, at +any rate, had a natural gift for conversation. He could pour out a +stream of talk such as, to the best of my knowledge, I have never heard +equalled. The gift was perhaps stimulated by accidents. The weakness of +his eyes had forced him to depend very much upon dictation. I remember +vividly the sound of his tread as he tramped up and down his room, +dictating to my mother or sister, who took down his words in shorthand +and found it hard to keep pace with him. Even his ordinary conversation +might have been put into print with scarcely a correction, and was as +polished and grammatically perfect as his finished writing. The flow of +talk was no doubt at times excessive. Taylor tells of an indignant +gentleman who came to his room after attempting to make some +communication to the Under-Secretary. Mr. Stephen, he said, had at once +begun to speak, and after discoursing for half an hour without a +moment's pause, courteously bowed the gentleman out, thanking him for +the valuable information which still remained unuttered. Sir James +Stephen, said Lord Monteagle to Carlyle, 'shuts his eyes on you and +talks as if he were dictating a colonial despatch.'[44] This refers to a +nervous trick of shyness. When talking, his eyelids often had a +tremulous motion which concealed the eyes themselves, and gave to at +least one stranger the impression that he was being addressed by a blind +man. + +The talk, however, was always pointed and very frequently as brilliant +as it was copious. With all the monotony of utterance, says Taylor, +'there was such a variety and richness of thought and language, and +often so much wit and humour, that one could not help being interested +and attentive.' On matters of business, he adds, 'the talk could not be +of the same quality and was of the same continuity.' He gives one +specimen of the 'richness of conversational diction' which I may quote. +My father mentioned to Taylor an illness from which the son of Lord +Derby was suffering. He explained his knowledge by saying that Lord +Derby had spoken of the case to him in a tone for which he was +unprepared. 'In all the time when I saw him daily I cannot recollect +that he ever said one word to me about anything but business; and _when +the stupendous glacier, which had towered over my head for so many +years, came to dissolve and descend upon me in parental dew, you may +imagine, &c., &c._[45] My brother gives an account to which I can fully +subscribe, so far as my knowledge goes. Our father's printed books, he +says, show his mind 'in full dress, as under restraint and subject to +the effect of habitual self-distrust. They give no idea of the vigour +and pungency and freedom with which he could speak or let himself loose +or think aloud as he did to me. Macaulay was infinitely more eloquent, +and his memory was a thing by itself. Carlyle was striking and +picturesque, and, after a fashion, forcible to the last degree. John +Austin discoursed with the greatest dignity and impressiveness. But my +father's richness of mind and union of wisdom, good sense, keenness and +ingenuity, put him, in my opinion, quite on the same sort of level as +these distinguished men; and gave me a feeling about him which attuned +itself with and ran into the conviction that he was also one of the very +kindest, most honourable, and best men I ever knew in my whole life.' +From my recollection, which is less perfect than was my brother's, I +should add that one thing which especially remains with me was the stamp +of fine literary quality which marked all my father's conversation. His +talk, however copious, was never commonplace; and, boy as I was when I +listened, I was constantly impressed by the singular skill with which +his clear-cut phrases and lively illustrations put even familiar topics +into an apparently new and effective light. + +The comparison made by my brother between my father's talk and his +writings may be just, though I do not altogether agree with it. The +'Essays in Ecclesiastical Biography,' by which he is best known, were +written during the official career which I have described. + +The composition was to him a relaxation, and they were written early in +the morning or late at night, or in the intervals of his brief holidays. +I will not express any critical judgment of their qualities; but this I +will say: putting aside Macaulay's 'Essays,' which possess merits of an +entirely different order, I do not think that any of the collected +essays republished from the 'Edinburgh Review' indicate a natural gift +for style equal to my father's. Judging from these, which are merely the +overflowing of a mind employed upon other most absorbing duties, I think +that my father, had he devoted his talents to literature, would have +gained a far higher place than has been reached by any of his +family.[46] + +My father gave in his Essays a sufficient indication of his religious +creed. That creed, while it corresponded to his very deepest emotions, +took a peculiar and characteristic form. His essay upon the 'Clapham +Sect'[47] shows how deeply he had imbibed its teaching, while it yet +shows a noticeable divergence. All his youthful sympathies and aims had +identified him with the early evangelicals. As a lad he had known +Granville Sharp, the patriarch of the anti-slavery movement; and till +middle life he was as intimate as the difference of ages permitted with +Wilberforce and with Thomas Gisborne, the most refined if not most +effective preacher of the party. He revered many of the party from the +bottom of his heart. His loving remembrance of his intercourse with them +is shown in every line of his description, and to the end of his life he +retained his loyalty to the men, and, as he at least thought, to their +creed. The later generation, which called itself evangelical, +repudiated his claim. He was attacked in their chief organ. When some +remonstrance was made by his brother-in-law, Henry Venn, he wrote to the +paper (I quote from memory), 'I can only regret that any friend of mine +should have stooped to vindicate me from any censure of yours'; and +declined further controversy. + +The occasion of this was an attack which had been made upon him at +Cambridge, where certain learned dons discovered on his appointment to +the professorship of history that he was a 'Cerinthian.' I do not +pretend to guess at their meaning. Anyhow he had avowed, in an +'epilogue' to his Essays, certain doubts as to the meaning of eternal +damnation--a doctrine which at that time enjoyed considerable +popularity. The explanation was in part simple. 'It is laid to my +charge,' he said, 'that I am a Latitudinarian. I have never met with a +single man who, like myself, had passed a long series of years in a free +intercourse with every class of society who was not more or less what is +called a Latitudinarian.' In fact, he had discovered that Clapham was +not the world, and that the conditions of salvation could hardly include +residence on the sacred common. This conviction, however, took a +peculiar form in his mind. His Essays show how widely he had sympathised +with many forms of the religious sentiment. He wrote with enthusiasm of +the great leaders of the Roman Catholic Church; of Hildebrand and St. +Francis, and even of Ignatius Loyola; and yet his enthusiasm does not +blind him to the merits of Martin Luther, or Baxter, or Wesley, or +Wilberforce. There were only two exceptions to his otherwise universal +sympathy. He always speaks of the rationalists in the ordinary tone of +dislike; and he looks coldly upon one school of orthodoxy. 'Sir James +Stephen,' as was said by someone, 'is tolerant towards every Church +except the Church of England.' This epigram indicated a fact. Although +he himself strenuously repudiated any charge of disloyalty to the Church +whose ordinances he scrupulously observed, he was entirely out of +sympathy with the specially Anglican movement of later years. This was +no doubt due in great part to the intensely strong sympathies of his +youth. When the Oxford movement began he was already in middle life and +thoroughly steeped in the doctrines which they attacked. He resembled +them, indeed, in his warm appreciation of the great men of Catholicism. +But the old churchmen appealed both to his instincts as a statesman and +to his strong love of the romantic. The Church of the middle ages had +wielded a vast power; men like Loyola and Xavier had been great +spiritual heroes. But what was to be said for the Church of England +since the Reformation? Henry Martyn, he says, in the 'Clapham Sect,' is +'the one heroic name which adorns her annals since the days of +Elizabeth. Her apostolic men either quitted or were cast out of her +communion. Her _Acta Sanctorum_ may be read from end to end with a dry +eye and an unquickened pulse.' He had perhaps heard too many sermons. +'Dear Mother Church,' he says after one such experience, 'thy spokesmen +are not selected so as to create any danger that we should be dazzled by +human eloquence or entangled by human wisdom.' The Church of England, as +he says elsewhere ('Baxter'), afforded a refuge for three centuries to +the great, the learned, and the worldly wise, but was long before it +took to the nobler end of raising the poor, and then, as he would have +added, under the influence of the Clapham Sect. The Church presented +itself to him mainly as the religious department of the State, in which +more care was taken to suppress eccentricity than to arouse enthusiasm; +it was eminently respectable, but at the very antipodes of the heroic. +Could he then lean to Rome? He could not do so without damning the men +he most loved, even could his keen and in some ways sceptical intellect +have consented to commit suicide. Or to the Romanising party in the +Church? The movement sprang from the cloister, and he had breathed the +bracing air of secular life. He was far too clear-headed not to see +whither they were tending. To him they appeared to be simply feeble +imitations of the real thing, dabbling with dangerous arguments, and +trying to revive beliefs long sentenced to extinction. + +And yet, with his strong religious beliefs, he could not turn towards +the freethinkers. He perceived indeed with perfect clearness that the +Christian belief was being tried by new tests severer than the old, and +that schools of thought were arising with which the orthodox would have +to reckon. Occasional intimations to this effect dropped from him in his +conversations with my brother and others. But, on the whole, the simple +fact was that he never ventured to go deeply into the fundamental +questions. His official duties left him little time for abstract +thought; and his surpassingly ingenious and versatile mind employed +itself rather in framing excuses for not answering than in finding +thorough answers to possible doubts. He adopted a version of the +doctrine _crede ut intelligas_, and denounced the mere reasoning +machines like David Hume who appealed unequivocally to reason. But what +the faculty was which was to guide or to overrule reason in the search +for truth was a question to which I do not think that he could give any +distinct answer. He was too much a lover of clearness to be attracted by +the mysticism of Coleridge, and yet he shrank from the results of seeing +too clearly. + +I have insisted upon this partly because my father's attitude greatly +affected my brother, as will be presently seen. My brother was not a man +to shrink from any conclusions, and he rather resented the humility +which led my father, in the absence of other popes, to attach an +excessive importance to the opinions of Henry and John Venn--men who, as +Fitzjames observes, were, in matters of speculative inquiry, not worthy +to tie his shoes. Meanwhile, as his health became weaker in later years, +my father seemed to grow more weary of the secular world, and to lean +more for consolation under anxiety to his religious beliefs. Whatever +doubts or tendencies to doubt might affect his intellect, they never +weakened his loyalty to his creed. He spoke of Christ, when such +references were desirable, in a tone of the deepest reverence blended +with personal affection, which, as I find, greatly impressed my brother. +Often, in his letters and his talk, he would dwell upon the charm of a +pious life, free from secular care and devoted to the cultivation of +religious ideals in ourselves and our neighbours. On very rare occasions +he would express his real feelings to companions who had mistaken his +habitual reserve for indifference. We had an old ivory carving, left to +him in token of gratitude by a gentleman whom he had on some such +occasion solemnly reproved for profane language, and who had at the +moment felt nothing but irritation. + +The effect of these tendencies upon our little domestic circle was +marked. My father's occupations naturally brought him into contact with +many men of official and literary distinction. Some of them became his +warm friends. Besides Henry Taylor, of whom I have spoken, Taylor's +intimate friends, James Spedding and Aubrey de Vere, were among the +intimates of our household; and they and other men, younger than +himself, often joined him in his walks or listened to his overflowing +talk at home. A next-door neighbour for many years was Nassau Senior, +the political economist, and one main author of the Poor Law of 1834. +Senior, a very shrewd man of the world, was indifferent to my father's +religious speculations. Yet he and his family were among our closest +friends, and in habits of the most familiar intercourse with us. With +them was associated John Austin, regarded by all the Utilitarians as the +profoundest of jurists and famous for his conversational powers; and +Mrs. Austin, a literary lady, with her daughter, afterwards Lady Duff +Gordon. I think of her (though it makes me feel old when I so think) as +Lucy Austin. She was a brilliant girl, reported to keep a rifle and a +skull in her bedroom. She once startled the sense of propriety of her +elders by performing in our house a charade, in which she represented a +dying woman with a 'realism'--to use the modern phrase--worthy of Madame +Sarah Bernhardt. Other visitors were occasionally attracted. My father +knew John Mill, though never, I fancy, at all intimately. He knew +politicians such as Charles Greville, the diarist, who showed his +penetration characteristically, as I have been told, by especially +admiring my mother as a model of the domestic virtues which he could +appreciate from an outside point of view. + +We looked, however, at the world from a certain distance, and, as it +were, through a veil. My father had little taste for general society. It +had once been intimated to him, as he told me, that he might find +admission to the meetings of Holland House, where, as Macaulay tells us, +you might have the privilege of seeing Mackintosh verify a reference to +Thomas Aquinas, and hearing Talleyrand describe his ride over the field +of Austerlitz. My father took a different view. He declined to take +advantage of this opening into the upper world, because, as he said, I +don't know from what experience, the conversation turned chiefly upon +petty personal gossip. The feasts of the great were not to his taste. He +was ascetic by temperament. He was, he said, one of the few people to +whom it was the same thing to eat a dinner and to perform an act of +self-denial. In fact, for many years he never ate a dinner, contenting +himself with a biscuit and a glass of sherry as lunch, and an egg at +tea, and thereby, as the doctors said, injuring his health. He once +smoked a cigar, and found it so delicious that he never smoked again. He +indulged in snuff until one day it occurred to him that snuff was +superfluous; when the box was solemnly emptied out of the window and +never refilled. Long sittings after dinner were an abomination to him, +and he spoke with horror of his father's belief in the virtues of port +wine. His systematic abstemiousness diminished any temptation to social +pleasures of the ordinary kind. His real delight was in quieter meetings +with his own family--with Stephens, and Diceys, and Garratts, and above +all, I think, with Henry and John Venn. At their houses, or in the +country walks where he could unfold his views to young men, whose +company he always enjoyed, he could pour out his mind in unceasing +discourse, and be sure of a congenial audience. + +Our household must thus be regarded as stamped with the true evangelical +characteristics--and yet with a difference. The line between saints and +sinners or the Church and the world was not so deeply drawn as in some +cases. We felt, in a vague way, that we were, somehow, not quite as +other people, and yet I do not think that we could be called Pharisees. +My father felt it a point of honour to adhere to the ways of his youth. +Like Jonadab, the son of Rechab, as my brother observes, he would drink +no wine for the sake of his father's commandments (which, indeed, is +scarcely a felicitous application after what I have just said). He wore +the uniform of the old army, though he had ceased to bear unquestioning +allegiance. We never went to plays or balls; but neither were we taught +to regard such recreations as proofs of the corruption of man. My father +most carefully told us that there was nothing intrinsically wrong in +such things, though he felt strongly about certain abuses of them. At +most, in his favourite phrase, they were 'not convenient.' We no more +condemned people who frequented them than we blamed people in Hindostan +for riding elephants. A theatre was as remote from us as an elephant. +And therefore we grew up without acquiring or condemning such tastes. +They had neither the charm of early association nor the attraction of +forbidden fruit. To outsiders the household must have been pervaded by +an air of gravity, if not of austerity. But we did not feel it, for it +became the law of our natures, not a law imposed by external sanctions. +We certainly had a full allowance of sermons and Church services; but we +never, I think, felt them to be forced upon us. They were a part, and +not an unwelcome part, of the order of nature. In another respect we +differed from some families of the same creed. My father's fine taste +and his sensitive nature made him tremblingly alive to one risk. He +shrank from giving us any inducement to lay bare our own religious +emotions. To him and to our mother the needless revelation of the deeper +feelings seemed to be a kind of spiritual indelicacy. To encourage +children to use the conventional phrases could only stimulate to +unreality or actual hypocrisy. He recognised, indeed, the duty of +impressing upon us his own convictions, but he spoke only when speaking +was a duty. He read prayers daily in his family, and used to expound a +few verses of the Bible with characteristic unction. In earlier days I +find him accusing himself of a tendency to address 'homiletical +epistles' to his nearest connections; but he scrupulously kept such +addresses for some adequate occasion in his children's lives. We were, +indeed, fully aware, from a very early age, of his feelings, and could +not but be continuously conscious that we were under the eye of a father +governed by the loftiest and purest motives, and devoting himself +without stint to what he regarded as his duty. He was a living +'categorical imperative.' 'Did you ever know your father do a thing +because it was pleasant?' was a question put to my brother, when he was +a small boy, by his mother. She has apparently recorded it for the sake +of the childish answer: 'Yes, once--when he married you.' But we were +always conscious of the force of the tacit appeal. + +I must not give the impression that he showed himself a stern parent. I +remember that when his first grandchild was born, I was struck by the +fact that he was the most skilful person in the family at playing with +the baby. Once, when some friends upon whom he was calling happened to +be just going out, he said, 'Leave me the baby and I shall be quite +happy.' Several little fragments of letters with doggerel rhymes and +anecdotes suited for children recall his playfulness with infants, and +as we grew up, although we learnt to regard him with a certain awe, he +conversed with us most freely, and discoursed upon politics, history, +and literature, and his personal recollections, as if we had been his +equals, though, of course, with a width of knowledge altogether beyond +our own. The risk of giving pain to a 'skinless' man was all that could +cause any reserve between us; but a downright outspoken boy like my +brother soon acquired and enjoyed a position on the most affectionate +terms of familiarity. We knew that he loved us; that his character was +not only pure but chivalrous; and that intellectually he was a most +capable guide into the most delightful pastures. + +I will conclude by a word or two upon his physical characteristics. No +tolerable likeness has been preserved. My father was rather above middle +height, and became stout in later years. Though not handsome, his +appearance had a marked dignity. A very lofty brow was surmounted by +masses of soft fine hair, reddish in youth, which became almost white +before he died. The eyes, often concealed by the nervous trick I have +mentioned, were rather deeply set and of the purest blue. They could +flash into visibility and sparkle with indignation or softer emotion. +The nose was the nose of a scholar, rather massive though well cut, and +running to a sharp point. He had the long flexible lips of an orator, +while the mouth, compressed as if cut with a knife, indicated a nervous +reserve. The skull was very large, and the whole face, as I remember +him, was massive, though in youth he must have been comparatively +slender. + +His health was interrupted by some severe illnesses, and he suffered +much at times from headache. His power of work, however, shows that he +was generally in good health; he never had occasion for a dentist. He +was a very early riser, scrupulously neat in dress, and even fanatical +in the matter of cleanliness. He had beautiful but curiously incompetent +hands. He was awkward even at tying his shoes; and though he liked +shaving himself because, he said, that it was the only thing he could do +with his hands, and he shaved every vestige of beard, he very often +inflicted gashes. His handwriting, however, was of the very best. He +occasionally rode and could, I believe, swim and row. But he enjoyed no +physical exercise except walking, a love of which was hereditary. I do +not suppose that he ever had a gun or a fishing-rod in his hand. + +And now, having outlined such a portrait as I can of our home, I begin +my brother's life.[48] + + +FOOTNOTES: + +[Footnote 1: I learn by the courtesy of Mr. James Young Stephen that +this James Stephen was son of a previous James Stephen of Ardenbraught, +whose brother Thomas was provost of Dundee and died in 1728. James +Stephen of Ardenbraught had a younger son John, who was +great-grandfather of the present Mr. Oscar Leslie Stephen. Mr. O. L. +Stephen is father of Mr. James Young Stephen, Mr. Oscar Leslie Stephen, +junior, and Sir Alexander Condie Stephen, K.C.M.G.] + +[Footnote 2: My friend, Professor Bonney, kindly refers me to Conybeare +and Philips' _Outlines of Geology of England and Wales_, p. 13, where +there is an account of certain beds of lignite, or imperfect coal, in +the neighbourhood of Poole. They burn with an odour of bitumen, and, no +doubt, misled my great-grandfather. Geology was not even outlined in +those days.] + +[Footnote 3: 'Parleyings with Certain People'--_Works_ (1889) xvi. +148-160.] + +[Footnote 4: See _Dictionary of National Biography_.] + +[Footnote 5: Redgrave's _Dictionary of Painters_.] + +[Footnote 6: I have copies of two pamphlets in which these proceedings +are described:--One is entitled 'Considerations on Imprisonment for +Debt, fully proving that the confining of the bodies of debtors is +contrary to Common Law, Magna Charta, Statute Law, Justice, Humanity, +and Policy; and that the practice is more cruel and oppressive than is +used in the most arbitrary kingdoms in Europe, with an account of +various applications, &c.; by James Stephen, 1770.' The other pamphlet, +to which is prefixed a letter by W. Jackson, reprints some of Stephen's +letters from the New Jail, wants a title and is imperfect. See also the +_Annual Register_ for 1770 (Chronicle), November 19, for 1771 +(Chronicle), January 31.] + +[Footnote 7: That mentioned in the previous note. See also the +'Chronicle' of the _Annual Register_ for November 19, 1770, and January +31 and November 2, 1771.] + +[Footnote 8: The children were William and James (already mentioned); +Sibella, born about 1765, afterwards married to William Maxwell Morison, +editor of _Decisions of Court of Session_ (1801-1818); Hannah, born +about 1767, afterwards married to William Farish (1759-1837), Jacksonian +professor at Cambridge; Elizabeth, born about 1769, afterwards married +to her cousin, William Milner, of Comberton, near Cambridge; and John, +born about 1771.] + +[Footnote 9: The parish register records his burial on September 9, +1779.] + +[Footnote 10: See the trial reported by Gurney in 21 _State Trials_, pp. +486-651. It lasted from 8 A.M. on Monday till 5.15 A.M. on Tuesday +morning.] + +[Footnote 11: See _Slavery Delineated_ (preface to vol. i.), where other +revolting details are given.] + +[Footnote 12: _Slavery Delineated_, i. 54, 55.] + +[Footnote 13: Sir George Stephen's _Life of J. Stephen_, p. 29.] + +[Footnote 14: Reprinted in 13 _Hansard's Debates_, App. xxv.-cxxii.] + +[Footnote 15: _Hansard's Debates_, June 20, 1814; and _Abbot's Diary_, +ii. 503.] + +[Footnote 16: It is now occupied by my friend Dr. Robert Liveing.] + +[Footnote 17: For the life of my grandfather, I have relied upon his +autobiography and upon the following among other works: _Life of the +late James Stephen_ by his son, Sir George Stephen, Victoria, 1875 (this +little book, written when the author's memory was failing, is full of +singular mistakes, a fact which I mention that I may not be supposed to +have overlooked the statements in question but which it is needless to +prove in detail); _Jottings from Memory_ (two interesting little +pamphlets privately printed by Sir Alfred Stephen in 1889 and 1891); and +Wilberforce's _Life and Letters_ (containing letters and incidental +references). In Colquhoun's _Wilberforce, his Friends and his Times_ +(1886), pp. 180-198, is an account of Stephen's relations to +Wilberforce, chiefly founded upon this. See also Roberts' _Hannah More_ +(several letters); Brougham's _Speeches_ (1838), i. pp. 402-414 (an +interesting account partly quoted in Sir J. Stephen's _Clapham Sect_, in +_Essays in Ecclesiastical Biography_); Henry Adam's _History of the +United States_ (1891), iii. pp. 50-52 and elsewhere; Walpole's _Life of +Perceval_.] + +[Footnote 18: He served also in 1842 upon a Commission of Inquiry into +the forgery of Exchequer bills.] + +[Footnote 19: Serjeant Stephen's wife and a daughter died before him. He +left two surviving children: Sarah, a lady of remarkable ability, author +of a popular religious story called _Anna; or, the Daughter at Home_, +and a chief founder of the 'Metropolitan Association for Befriending +Young Servants,' who died unmarried, aged 79, on January 5, 1895; and +James, who edited some of his father's books, was judge of the County +Court at Lincoln, and died in November 1894. A short notice of the +serjeant is in the _Law Times_ of December 24, 1894.] + +[Footnote 20: _Life of James Stephen_, p. 36.] + +[Footnote 21: By his wife, a Miss Ravenscroft, he had seven children, +who all emigrated with him. The eldest, James Wilberforce Stephen, was +fourth wrangler in 1844 and Fellow of St. John's College, and afterwards +a judge in the colony of Victoria.] + +[Footnote 22: His _Constitution of a Christian Church_ (1846) was +republished, in 1874, as _Churches the Many and the One_, with +additional notes by his son, the Rev. Samuel Garratt, now rector of St. +Margaret's, Ipswich, and canon of Norwich.] + +[Footnote 23: _Lectures_, vol. i. preface.] + +[Footnote 24: Preface to _Slavery Delineated_, i. pp. lix.-lxx. My +grandfather takes some trouble to show--and, as I think, shows +conclusively--that the appointment mentioned in the text was not a job, +and that it involved a considerable saving of public money. But this +matter will interest no one at present.] + +[Footnote 25: I have to thank Mr. Bryce, now President of the Board of +Trade, for kindly procuring me the dates of my father's official +appointments.] + +[Footnote 26: Communicated by my friend Mr. J. Dykes Campbell.] + +[Footnote 27: My cousin, Dr. John Venn, informs me that the first +traceable Venn was a farmer in Broad Hembury, Devonshire, whose son, +William Venn, was vicar of Otterton from 1599 to 1621.] + +[Footnote 28: _Henry Venn's Life_, published by his grandson, Henry +Venn, in 1834, has gone through several editions.] + +[Footnote 29: A short life of John Venn is prefixed to his _Sermons_. He +married Catherine King on October 22, 1789, and left seven children:-- + + 1. Catherine Eling, born Dec. 2, 1791, died unmarried, + April 22, 1827. + 2. Jane Catherine, Lady Stephen, b. May 16, 1793, + d. February 27, 1875. + 3. Emelia, b. April 20, 1795, d. Feb. 1881. + 4. Henry, b. February 10, 1796, d. January 13, 1873. + 5. Caroline, Mrs. Ellis Batten, b. 1799, d. Jan. 26, 1870. + 6. Maria, who died in infancy. + 7. John, b. April 17, 1801, d. May 12, 1890.] + +[Footnote 30: _Missionary Secretariat of Henry Venn, B.D._, by the Rev. +William Knight, with introductory chapter by his sons the Rev. John Venn +and the Rev. Henry Venn, 1880.] + +[Footnote 31: Sir H. Taylor's _Autobiography_ (1885), ii. 303. Taylor +was b. October 18, 1800, and d. October 31, 1886.] + +[Footnote 32: _Autobiography_, i. 136.] + +[Footnote 33: P. 233.] + +[Footnote 34: Autobiographical fragment.] + +[Footnote 35: _Taylor_, ii. 301.] + +[Footnote 36: Stephen's _History of the Criminal Law_, iii. 256. My +brother was generally accurate in such statements, though I cannot quite +resist the impression that he may at this time have been under some +confusion as to the time employed upon this occasion and the time +devoted to the Bill of 1833 to be mentioned directly.] + +[Footnote 37: _Taylor_, i. 121-127. Sir Henry Taylor says that Stanley +prepared a measure with Sir James Graham which was introduced into the +House of Commons and 'forthwith was blown into the air.' I can find no +trace of this in Hansard or elsewhere, and as Stanley only became +Colonial Secretary (March 28) six weeks before introducing the measure +which passed, and no parliamentary discussion intervened, I fancy that +there must be some error. The facts as stated above seem to be at any +rate sufficiently proved by Taylor's contemporary letter. According to +Taylor, Stanley's great speech (May 14, 1833) upon introducing the +Government measure was founded upon my father's judicious cramming, and +the success of the measure was due to Stephen's putting his own design +into enactments and Mr. Stanley's into a preamble. Taylor at the time +thought that my father had been ill treated, but I have not the +knowledge necessary to form any opinion. My brother's _Life_ is the +authority for the circumstances under which the measure was prepared, +and rests on sufficient evidence.] + +[Footnote 38: _Taylor_, i. 233.] + +[Footnote 39: _Ibid._ ii. 303.] + +[Footnote 40: I think it right to notice that in the first edition of T. +Mozley's _Reminiscences_ (1882), i. 111, there appeared an anecdote of +my father in his official capacity which was preposterous on the face of +it. It was completely demolished in a letter written by my brother which +appeared in the _Times_ of July 6, 1882, and withdrawn in a later +edition.] + +[Footnote 41: _Reminiscences_, ii. 224.] + +[Footnote 42: _Taylor_, i. 235.] + +[Footnote 43: _Taylor_, ii. 304.] + +[Footnote 44: _Reminiscences_, ii. 223.] + +[Footnote 45: _Taylor_, ii. 302.] + +[Footnote 46: Some of my father's letters are given in Macvey Napier's +correspondence. I think that they are the best in a collection which +includes letters from many of the most eminent men of the time. A few +others are in the collection of Sir H. Taylor's correspondence, edited +by Professor Dowden in 1888.] + +[Footnote 47: The title, of course, was given by Sydney Smith.] + +[Footnote 48: My father's children were:-- + + 1. Herbert Venn, b. September 30, 1822, d. October 22, 1846. + + 2. Frances Wilberforce, b. September 8, 1824, d. July 22, 1825. + + 3. James Fitzjames, b. March 3, 1829, d. March 11, 1894. + + 4. Leslie, born November 28, 1832. + + 5. Caroline Emelia, born December 8, 1834.] + + + + +CHAPTER II + +_EARLY LIFE_ + +I. CHILDHOOD + + +In the beginning of 1829 my father settled in a house at Kensington +Gore--now 42 Hyde Park Gate. There his second son, James Fitzjames, was +born on March 3, 1829. James was the name upon which my grandfather +insisted because it was his own. My father, because the name was his +own, objected as long as he could, but at last compounded, and averted +the evil omen, by adding Fitzjames. Two other children, Leslie and +Caroline Emelia, were born in 1832 and 1834 at the same house. The +Kensington of those days was still distinctly separate from London. A +high wall divided Kensington Gardens from the Hounslow Road; there were +still deer in the Gardens; cavalry barracks close to Queen's Gate, and a +turnpike at the top of the Gloucester Road. The land upon which South +Kensington has since arisen was a region of market gardens, where in our +childhood we strolled with our nurse along genuine country lanes. + +It would be in my power, if it were desirable, to give an unusually +minute account of my brother's early childhood. My mother kept a diary, +and, I believe, never missed a day for over sixty years. She was also in +the habit of compiling from this certain family 'annals' in which she +inserted everything that struck her as illustrative of the character of +her children. About 1884 my brother himself began a fragment of +autobiography, which he continued at intervals during the next two or +three years. For various reasons I cannot transfer it as a whole to +these pages, but it supplies me with some very important +indications.[49] A comparison with my mother's contemporary account of +the incidents common to both proves my brother's narrative to be +remarkably accurate. Indeed, though he disclaimed the possession of +unusual powers of memory in general, he had a singularly retentive +memory for facts and dates, and amused himself occasionally by +exercising his faculty. He had, for example, a certain walking-stick +upon which he made a notch after a day's march; it served instead of a +diary, and years afterwards he would explain what was the particular +expedition indicated by any one of the very numerous notches. + +Although I do not wish to record trifles important only in the eyes of a +mother, or interesting only from private associations, I will give +enough from these sources to illustrate his early development; or rather +to show how much of the later man was already to be found in the infant. +It requires perhaps some faith in maternal insight to believe that +before he was three months old he showed an uncommon power of 'amusing +himself with his own thoughts,' and had 'a calm, composed dignity in his +countenance which was quite amusing in so young a creature.' It will be +more easily believed that he was healthy and strong, and by the age of +six months 'most determined to have his own way.' On August 15, 1830, +Wilberforce was looking at the baby, when he woke up, burst into a +laugh, and exclaimed 'Funny!' a declaration which Wilberforce no doubt +took in good part, though it seems to have been interpreted as a +reflection upon the philanthropist's peculiar figure. My brother himself +gives a detailed description of his grandfather from an interview which +occurred when the old gentleman was seventy-six and the infant very +little more than three years old. He remembers even the room and the +precise position of the persons present. He remembers too (and his +mother's diary confirms the fact) how in the same year he announced that +the Reform Bill had 'passed.' It was 'a very fine thing,' he said, being +in fact a bill stuck upon a newsboy's hat, inscribed, as his nurse +informed him, with the words 'Reform Bill.' + +Although his memory implies early powers of observation, he did not show +the precocity of many clever children. He was still learning to read +about his fifth birthday, and making, as his mother complains, rather +slow progress. But if not specially quick at his lessons, he gave very +early and, as it seems to me, very noticeable proofs of thoughtfulness +and independence of character. He was, as he remained through life, +remarkable for that kind of sturdy strength which goes with a certain +awkwardness and even sluggishness. To use a modern phrase, he had a +great store of 'potential energy,' which was not easily convertible to +purposes of immediate application. His mind swarmed with ideas, which +would not run spontaneously into the regulation moulds. His mother's +influence is perceptible in an early taste for poetry. In his third year +he learnt by heart 'Sir John Moore's Burial,' 'Nelson and the North,' +Wordsworth's 'Address to the Winds,' and Lord F. L. Gower's translation +of Schiller ('When Jove had encircled this planet with light') from +hearing his brother's repetition. He especially delighted in this bit of +Schiller and in 'Chevy Chase,' though he resisted Watts' hymns. In the +next two or three years he learns a good deal of poetry, and on +September 5, 1834, repeats fifty lines of Henry the Fifth's speech +before Agincourt without a fault. 'Pilgrim's Progress' and 'Robinson +Crusoe' are read in due course as his reading improves, and he soon +delights in getting into a room by himself and surrounding himself with +books. His religious instruction of course began at the earliest +possible period, and he soon learnt by heart many simple passages of the +Bible. He made his first appearance at family prayers in November 1830, +when the ceremony struck him as 'funny,' but he soon became interested +and was taught to pray for himself. In 1832 his elder brother has +nicknamed him the 'little preacher,' from his love of virtuous +admonitions. In 1834 he confides to his mother that he has invented a +prayer for himself which is 'not, you know, a childish sort of +invention'; and in 1835 he explains that he has followed the advice +given in a sermon (he very carefully points out that it was only +_advice_, not an order) to pray regularly. Avowals of this kind, +however, have to be elicited from him by delicate maternal questioning. +He is markedly averse to any display of feeling. 'You should keep your +love locked up as I do' is a characteristic remark at the age of four to +his eldest brother. The effect of the religious training is apparently +perceptible in a great tendency to self-analysis. His thoughts sometimes +turn to other problems;--in October, 1835, for example, he asks the +question which has occurred to so many thoughtful children,'How do we +know that the world is not a dream?'--but he is chiefly interested in +his own motives. He complains in January 1834 that he has naughty +thoughts. His father tells him to send them away without even thinking +about them. He takes the advice, but afterwards explains that he is so +proud of sending them away that he 'wants to get them that he may send +them away.' He objects to a reward for being good, because it will make +him do right from a wrong motive. He shrinks from compliments. In +October 1835 he leaves a room where some carpenters were at work because +they had said something which he was sorry to have heard. They had said, +as it appeared upon anxious inquiry, that he would make a good +carpenter, and he felt that he was being cajoled. He remarks that even +pleasures become painful when they are ordered, and explains why his +sixth birthday was disappointing; he had expected too much. + +His thoughtfulness took shapes which made him at times anything but easy +to manage. He could be intensely obstinate. The first conflict with +authority took place on June 28, 1831, when he resolutely declared that +he would not say the 'Busy Bee.' This event became famous in the +nursery, for in September 1834 he has to express contrition for having +in play used the words 'By the busy bee' as an infantile equivalent to +an oath. One difficulty was that he declined to repeat what was put into +his mouth, or to take first principles in ethics for granted. When his +mother reads a text to him (May 1832), he retorts, 'Then I will not be +like a little child; I do not want to go to heaven; I would rather stay +on earth.' He declines (in 1834) to join in a hymn which expresses a +desire to die and be with God. Even good people, he says, may prefer to +stay in this world. 'I don't want to be as good and wise as Tom +Macaulay' is a phrase of 1832, showing that even appeals to concrete +ideals of the most undeniable excellence fail to overpower him. He +gradually developed a theory which became characteristic, and which he +obstinately upheld when driven into a logical corner. A stubborn +conflict arose in 1833, when his mother was forced to put him in +solitary confinement during the family teatime. She overhears a long +soliloquy in which he admits his error, contrasts his position with that +of the happy who are perhaps even now having toast and sugar, and +compares his position to the 'last night of Pharaoh.' 'What a barbarian +I am to myself!' he exclaims, and resolves that this shall be his last +outbreak. On being set at liberty, he says that he was naughty on +purpose, and not only submits but requests to be punished. For a short +time he applies spontaneously for punishments, though he does not always +submit when the request is granted. But this is a concession under +difficulties. His general position is that by punishing him his mother +only 'procures him to be much more naughty,' and he declines as +resolutely as Jeremy Bentham to admit that naughtiness in itself +involves unhappiness, or that the happiness of naughtiness should not be +taken into account. He frequently urges that it is pleasanter while it +lasts to give way to temper, and that the discomfort only comes +afterwards. It follows logically, as he argues in 1835, that if a man +could be naughty all his life he would be quite happy. Some time later +(1838) he is still arguing the point, having now reached the conclusion +to which the Emperor Constantine gave a practical application. The +desirable thing would be to be naughty all your life, and to repent just +at the end. + +These declarations are of course only interpolations in the midst of +many more edifying though less original remarks. He was exceedingly +conscientious, strongly attached to his parents, and very kind to his +younger brother and sister. I note that when he was four years old he +already thought it, as he did ever afterwards, one of the greatest of +treats to have a solitary talk with his father. He was, however, rather +unsociable and earned the nickname of 'Gruffian' for his occasionally +surly manner. This, with a stubborn disposition and occasional fits of +the sulks, must have made it difficult to manage a child who persisted +in justifying 'naughtiness' upon general principles. He was rather +inclined to be indolent, and his mother regrets that he is not so +persevering as Frederick (Gibbs). His great temptation, he says himself, +in his childhood was to be 'effeminate and lazy,' and 'to justify these +vices by intellectual and religious excuses.' A great deal of this, he +adds, has been 'knocked out of him'; he cannot call himself a sluggard +or a hypocrite, nor has he acted like a coward. 'Indeed,' he says, 'from +my very infancy I had an instinctive dislike of the maudlin way of +looking at things,' and he remembers how in his fifth year he had +declared that guns were not 'dreadful things.' They were good if put to +the proper uses. I do not think that there was ever much real +'effeminacy' to be knocked out of him. It is too harsh a word for the +slowness with which a massive and not very flexible character rouses +itself to action. His health was good, except for a trifling ailment +which made him for some time pass for a delicate child. But the delicacy +soon passed off and for the next fifty years he enjoyed almost unbroken +health. + +In 1836 he explains some bluntness of behaviour by an argument learnt +from 'Sandford and Merton' that politeness is objectionable. In August +occurs a fit of obstinacy. He does not want to be forgiven but to be +'happy and comfortable.' 'I do not feel sorry, for I always make the +best of my condition in every possible way, and being sorry would make +me uncomfortable. That is not to make the best of my condition.' His +mother foresees a contest and remarks 'a daring and hardened spirit +which is not natural to him.' Soon after, I should perhaps say in +consequence of, these outbreaks he was sent to school. My mother's first +cousin, Henry Venn Elliott, was incumbent of St. Mary's Chapel at +Brighton and a leading evangelical preacher. At Brighton, too, lived his +sister, Miss Charlotte Elliott, author of some very popular hymns and +of some lively verses of a secular kind. Fitzjames would be under their +wing at Brighton, where Elliott recommended a school kept by the Rev. B. +Guest, at 7 Sussex Square. My mother took him down by the Brighton +coach, and he entered the school on November 10, 1836.[50] The school, +says Fitzjames, was in many ways very good; the boys were well taught +and well fed. But it was too decorous; there was no fighting and no +bullying and rather an excess of evangelical theology. The boys used to +be questioned at prayers. 'Gurney, what's the difference between +justification and sanctification?' 'Stephen, prove the Omnipotence of +God.' Many of the hymns sung by the boys remained permanently in my +brother's memory, and he says that he could give the names of all the +masters and most of the boys and a history of all incidents in +chronological order. Guest's eloquence about justification by faith +seems to have stimulated his pupil's childish speculations. He read a +tract in which four young men discuss the means of attaining holiness. +One says, 'Meditate on the goodness of God'; a second, 'on the happiness +of heaven'; a third, 'on the tortures of hell'; and a fourth, 'on the +love of Christ.' The last plan was approved in the tract; but Fitzjames +thought meditation on hell more to the purpose, and set about it +deliberately. He imagined the world transformed into a globe of iron, +white hot, with a place in the middle made to fit him so closely that he +could not even wink. The globe was split like an orange; he was thrust +by an angel into his place, immortal, unconsumable, and capable of +infinite suffering; and then the two halves were closed, and he left in +hideous isolation to suffer eternal torments. I guess from my own +experience that other children have had similar fancies. He adds, +however, a characteristic remark. 'It seemed to me then, as it seems +now, that no stronger motive, no motive anything like so strong, can be +applied to actuate any human creature toward any line of conduct. To +compare the love of God or anything else is to my mind simply childish.' +He refers to Mill's famous passage about going to hell rather than +worship a bad God, and asks what Mill would say after an experience of a +quarter of an hour. Fitzjames, however, did not dwell upon such fancies. +They were merely the childish mode of speculation by concrete imagery. +He became more sociable, played cricket, improved in health, and came +home with the highest of characters as being the best and most promising +boy in the school. He rose steadily, and seems to have been thoroughly +happy for the next five years and a half. + +In 1840 my mother observed certain peculiarities in me which she took at +first to be indications of precocious genius. After a time, however, she +consulted an eminent physician, who informed her that they were really +symptoms of a disordered circulation. He added that I was in a fair way +to become feeble in mind and deformed in body, and strongly advised that +I should be sent to school, where my brain would be in less danger of +injudicious stimulation. He declared that even my life was at stake. My +father, much alarmed, took one of his prompt decisions. He feared to +trust so delicate a child away from home, and therefore resolved to take +a house in Brighton for a year or two, from which I might attend my +brother's school. The Kensington house was let, and my mother and sister +settled in Sussex Square, a few doors from Mr. Guest. My father, unable +to leave his work, took a lodging in town and came to Brighton for +Sundays, or occasionally twice a week. In those days the journey was +still by coach. When the railway began running in the course of 1841, I +find my father complaining that it could not be trusted, and had yet +made all other modes of travelling impossible. 'How many men turned of +fifty,' asks my brother, 'would have put themselves to such +inconvenience, discomfort, and separation from their wives for the sake +of screening a delicate lad from some of the troubles of a carefully +managed boarding school?' My brother was not aware of the apparent +gravity of the case when he wrote this. Such a measure would have pushed +parental tenderness to weakness had there been only a question of +comfort; but my father was seriously alarmed, and I can only think of +his conduct with the deepest gratitude. + +To Fitzjames the plan brought the advantage that he became his father's +companion in Sunday strolls over the Downs. His father now found, as my +mother's diary remarks, that he could already talk to him as to a man, +and Fitzjames became dimly aware that there were difficulties about Mr. +Guest's theology. He went with my father, too, to hear Mr. Sortaine, a +popular preacher whose favourite topic was the denunciation of popery. +My father explained to the boy that some able men really defended the +doctrine of transubstantiation, and my brother, as he remarks, could not +then suspect that under certain conditions very able men like nonsense, +and are even not averse to 'impudent lying,' in defence of their own +authority. Incidentally, too, my father said that there were such people +as atheists, but that such views should be treated as we should treat +one who insulted the character of our dearest friend. This remark, +attributed to a man who was incapable of insulting anyone, and was a +friend of such freethinkers as Austin and J. S. Mill, must be regarded +as representing the impression made upon an inquisitive child by an +answer adapted to his capacity. The impression was, however, very +strong, and my brother notes that he heard it on a wettish evening on +the cliff near the south end of the old Steine. + +Fitzjames had discussed the merits of Mr. Guest's school with great +intelligence and had expressed a wish to be sent to Rugby. He had heard +bad accounts of the state of Eton, and some rumours of Arnold's +influence had reached him. Arnold, someone had told him, could read a +boy's character at a glance. At Easter 1841, my father visited the +Diceys at Claybrook, and thence took his boy to see the great +schoolmaster at Rugby. Fitzjames draws a little diagram to show how +distinctly he remembers the scene. He looked at the dark, grave man and +wondered, 'Is he now reading my character at a glance?' It does not +appear that he was actually entered at Rugby, however, and my father had +presently devised another scheme. The inconveniences of the Brighton +plan had made themselves felt, and it now occurred to my father that he +might take a house in Windsor and send both Fitzjames and me to Eton. We +should thus, he hoped, get the advantages of a public school without +being exposed to some of its hardships and temptations. He would himself +be able to live with his family, although, as things then were, he had +to drive daily to and from the Slough station, besides having the double +journey from Paddington to Downing Street. We accordingly moved to +Windsor in Easter 1842. Fitzjames's last months at school had not been +quite so triumphant as the first, partly, it seems, from a slight +illness, and chiefly for the characteristic reason, according to his +master, that he would occupy himself with 'things too high for him.' He +read solid works (I find mention of Carlyle's 'French Revolution') out +of school hours and walked with an usher to whom he took a fancy, +discoursing upon absorbing topics when he should have been playing +cricket. Fitzjames left Brighton on the day, as he notes, upon which one +Mister was hanged for attempting murder--being almost the last man in +England hanged for anything short of actual murder. He entered Eton on +April 15, 1842, and was placed in the 'Remove,' the highest class +attainable at his age. + + +II. ETON + +The Eton period[51] had marked effects. Fitzjames owed, as he said, a +debt of gratitude to the school, but it was for favours which would have +won gratitude from few recipients. The boys at a public school form, I +fancy, the most rigidly conservative body in existence. They hate every +deviation from the accepted type with the hatred of an ancient orthodox +divine for a heretic. The Eton boys of that day regarded an 'up-town +boy' with settled contempt. His motives or the motives of his parents +for adopting so abnormal a scheme were suspect. He might be the son of a +royal footman or a prosperous tradesman in Windsor, audaciously aspiring +to join the ranks of his superiors, and if so, clearly should be made to +know his place. In any case he was exceptional, and therefore a Pariah, +to associate with whom might be dangerous to one's caste. Mr. Coleridge +tells me that even the school authorities were not free from certain +suspicions. They wisely imagined, it appears, that my father had come +among them as a spy, instigated, no doubt, by some diabolical design of +'reforming' the school and desecrating the shrine of Henry's holy shade. +The poor man, already overpowered by struggling with refractory +colonists from Heligoland to New Zealand, was of malice prepense +stirring up this additional swarm of hornets. I can hardly suppose, +however, that this ingenious theory had much influence. Mr. Coleridge +also says that the masters connived at the systematic bullying of the +town boys. I can believe that they did not systematically repress it. I +must add, however, in justice to my school-fellows, that my personal +recollections do not reveal any particular tyranny. Such bullying as I +had to endure was very occasional, and has left no impression on my +memory. Yet I was far less capable than Fitzjames of defending myself, +and can hardly have forgotten any serious tormenting. The truth is that +the difference between me and my brother was the difference between the +willow and the oak, and that I evaded such assaults as he met with open +defiance. + +My brother, as has been indicated, was far more developed in character, +if not in scholarship, than is at all common at his age. His talks with +my father and his own reading had familiarised him with thoughts lying +altogether beyond the horizon of the average boyish mind. He was +thoughtful beyond his years, although not conspicuously forward in the +school studies. He was already inclined to consider games as childish. +He looked down upon his companions and the school life generally as +silly and frivolous. The boys resented his contempt of their ways; and +his want of sociability and rather heavy exterior at the time made him a +natural butt for schoolboy wit. He was, he says, bullied and tormented +till, towards the end of his time, he plucked up spirit to resist. Of +the bullying there can be no doubt; nor (sooner or later) of the +resistance. Mr. Coleridge observes that he was anything but a passive +victim, and turned fiercely upon the ringleaders of his enemies. +'Often,' he adds, 'have I applauded his backhanders as the foremost in +the fray. He was only vanquished by numbers. His bill for hats at +Sanders' must have amounted to a stiff figure, for my visions of +Fitzjames are of a discrowned warrior, returning to Windsor bareheaded, +his hair moist with the steam of recent conflict.' My own childish +recollections of his school life refer mainly to pugilism. In October +1842, as I learn from my mother's diary, he found a big boy bullying me, +and gave the boy such a thrashing as was certain to prevent a repetition +of the crime. I more vividly recollect another occasion, when a strong +lad was approaching me with hostile intent. I can still perceive my +brother in the background; when an application of the toe of his boot +between the tails of my tyrant's coat disperses him instantaneously into +total oblivion. Other scenes dimly rise up, as of a tumult in the +school-yard, where Fitzjames was encountering one of the strongest boys +in the school amidst a delighted crowd, when the appearance of the +masters stopped the proceedings. Fitzjames says that in his sixteenth +year (i.e. 1844-5) he grew nearly five inches, and instead of outgrowing +his strength became a 'big, powerful young man, six feet high,'--and +certainly a very formidable opponent. + +Other boys have had similar experiences without receiving the same +impression. 'I was on the whole,' he says, 'very unhappy at Eton, and I +deserved it; for I was shy, timid, and I must own cowardly. I was like a +sensible grown-up woman among a crowd of rough boys.' After speaking of +his early submission to tyranny, he adds: 'I still think with shame and +self-contempt of my boyish weakness, which, however, did not continue +in later years. The process taught me for life the lesson that to be +weak is to be wretched, that the state of nature is a state of war, and +_Væ Victis_ the great law of Nature. Many years afterwards I met R. Lowe +(Lord Sherbrooke) at dinner. He was speaking of Winchester, and said +with much animation that he had learnt one great lesson there, namely, +that a man can count on nothing in this world except what lies between +his hat and his boots. I learnt the same lesson at Eton, but alas! by +conjugating not _pulso_ but _vapulo_.' As I have intimated, I think that +his conscience must have rather exaggerated his sins of submission; +though I also cannot doubt that there was some ground for his +self-humiliation. In any case, he atoned for it fully. I must add that +he learnt another lesson, which, after his fashion, he refrains from +avowing. The 'kicks, cuffs, and hat smashing had no other result,' says +Mr. Coleridge, 'than to steel his mind for ever against oppression, +tyranny, and unfairness of every kind.' How often that lesson is +effectually taught by simple bullying I will not inquire. Undoubtedly +Fitzjames learnt it, though he expressed himself more frequently in +terms of indignation against the oppressor than of sympathy for the +oppressed; but the sentiment was equally strong, and I have no doubt +that it was stimulated by these acts of tyranny. + +The teaching at Eton was 'wretched'; the hours irregular and very +unpunctual; the classes were excessively large, and the tutorial +instruction supposed to be given out of school frequently neglected. 'I +do not believe,' says my brother, 'that I was ever once called upon to +construe at my tutor's after I got into the fifth form.' An absurd +importance, too, was already attached to the athletic amusements. +Balston, our tutor, was a good scholar after the fashion of the day and +famous for Latin verse; but he was essentially a commonplace don. +'Stephen major,' he once said to my brother, 'if you do not take more +pains, how can you ever expect to write good longs and shorts? If you do +not write good longs and shorts, how can you ever be a man of taste? If +you are not a man of taste, how can you ever hope to be of use in the +world?'--a _sorites_, says my brother, which must, he thinks, be +somewhere defective. + +The school, however, says Fitzjames, had two good points. The boys, in +the first place, were gentlemen by birth and breeding, and did not +forget their home training. The simple explanation of the defects of the +school was, as he remarks, that parents in this class did not care about +learning; they wished their children to be gentlemen, and to be 'bold +and active, and to make friends and to enjoy themselves, and most of +them had their wish.' + +The second good point in the school is more remarkable. 'There was,' +says Fitzjames, 'a complete absence of moral and religious enthusiasm. +The tone of Rugby was absolutely absent.' Chapel was simply a kind of +drill. He vividly remembers a sermon delivered by one of the Fellows, a +pompous old gentleman, who solemnly gave out the bidding prayer, and +then began in these words, 'which ring in my ears after the lapse of +more than forty years.' 'The subject of my discourse this morning, my +brethren, will be the duties of the married state.' When Balston was +examined before a Public Schools Commission, he gave what Fitzjames +considers 'a perfectly admirable answer to one question.' He had said +that the Provost and Fellows did all the preaching, and was asked +whether he did not regret that he could not, as headmaster, use this +powerful mode of influencing the boys? 'No,' he said; 'I was always of +opinion that nothing was so important for boys as the preservation of +Christian simplicity.' 'This put into beautiful language,' says my +brother, 'the truth that at Eton there was absolutely no nonsense.' The +masters knew that they had 'nothing particular to teach in the way of +morals or religion, and they did not try to do so.' + +The merits thus ascribed to Eton were chiefly due, it seems, to the +neglect of discipline and of teaching. My brother infers that good +teaching at school is of less importance than is generally supposed. I +shall not enter upon that question; but it is necessary to point out +that whatever the merits of an entire absence of moral and religious +instruction, my brother can hardly be taken as an instance. At this time +the intimacy with his father, already close, was rapidly developing. On +Sunday afternoons, in particular, my father used to walk to the little +chapel near Cumberland Lodge, in Windsor Park, and on the way would +delight in the conversations which so profoundly interested his son. The +boy's mind was ripening, and he was beginning to take an interest in +some of the questions of the day. It was the time of the Oxford +movement, and discussions upon that topic were frequent at home. +Frederick Gibbs held for a time a private tutorship at Eton while +reading for a fellowship at Trinity, and brought news of what was +exciting young men at the Universities. A quaint discussion recalled by +my brother indicates one topic which even reached the schoolboy mind. He +was arguing as to confirmation with Herbert Coleridge (1830-1861) whose +promising career as a philologist was cut short by an early death. 'If +you are right,' said Fitzjames, 'a bishop could not confirm with his +gloves on.' 'No more he could,' retorted Coleridge, boldly accepting the +position. Political questions turned up occasionally. O'Connell was +being denounced as 'the most impudent of created liars,' and a belief in +Free Trade was the mark of a dangerous radical. To the Eton time my +brother also refers a passionate contempt for the 'sentimental and +comic' writers then popular. He was disgusted not only by their +sentimentalism but by their vulgarity and their ridicule of all that he +respected. + +One influence, at this time, mixed oddly with that exerted by my father. +My eldest brother, Herbert, had suffered from ill health, due, I +believe, to a severe illness in his infancy, which had made it +impossible to give him a regular education. He had grown up to be a +tall, large-limbed man, six feet two-and-a-half inches in height, but +loosely built, and with a deformity of one foot which made him rather +awkward. The delicacy of his constitution had caused much anxiety and +trouble, and he diverged from our family traditions by insisting upon +entering the army. There, as I divine, he was the object of a good deal +of practical joking, and found himself rather out of his element. He +used to tell a story which may have received a little embroidery in +tradition. He was at a ball at Gibraltar, which was attended by a naval +officer. When the ladies had retired this gentleman proposed pistol +shooting. After a candelabrum had been smashed, the sailor insisted upon +taking a shot at a man who was lying on a sofa, and lodged a bullet in +the wall just above his head. Herbert left the army about 1844 and +entered at Gray's Inn. He would probably have taken to literature, and +he wrote a few articles not without promise, but his life was a short +one. He was much at Windsor, and the anxiety which he had caused, as +well as a great sweetness and openness of temper, made him, I guess, the +most tenderly loved of his parents' children. He had, however, wandered +pretty widely outside the limits of the Clapham Sect. He became very +intimate with Fitzjames, and they had long and frank discussions. This +daring youth doubted the story of Noah's flood, and one phrase which +stuck in his brother's mind is significant. 'You,' he said, 'are a good +boy, and I suppose you will go to heaven. If you can enjoy yourself +there when you think of me and my like grilling in hell fire, upon my +soul I don't envy you.' One other little glance from a point of view +other than that of Clapham impressed the lad. He found among his +father's books a copy of 'State Trials,' and there read the trial of +Williams for publishing Paine's 'Age of Reason.' The extracts from Paine +impressed him; though, for a time, he had an impression from his father +that Coleridge and other wise men had made a satisfactory apology for +the Bible; and 'in his inexperience' he thought that Paine's coarseness +implied a weak case. 'There is a great deal of truth,' he says, 'in a +remark made by Paine. I have gone through the Bible as a man might go +through a wood, cutting down the trees. The priests can stick them in +again, but they will not make them grow.' For the present such thoughts +remained without result. Fitzjames was affected, he says, by the +combined influence of his father and brother. He thought that something +was to be said on both sides of the argument. Meanwhile the anxiety +caused to his father by Herbert's unfortunately broken, though in no +sense discreditable, career impressed him with a strong sense of the +evils of all irregularities of conduct. He often remembered Herbert in +connection with one of his odd anniversaries. 'This day eighteen years +ago,' he says (September 16, 1857), 'my brother Herbert and I killed a +snake in Windsor Forest. Poor dear fellow! we should have been great +friends, and please God! we shall be yet.' + +Meanwhile Fitzjames had done well, though not brilliantly, at school. He +was eighth in his division, of which he gives the first twelve names +from memory. The first boy was Chenery, afterwards editor of the +'Times,' and the twelfth was Herbert Coleridge. With the exception of +Coleridge, his cousin Arthur, and W. J. Beamont (1828-1868), who at his +death was a Fellow at Trinity College, Cambridge, he had hardly any +intimates. Chitty, afterwards his colleague on the Bench, was then +famous as an athlete; but with athletics my brother had nothing to do. +His only amusement of that kind was the solitary sport of fishing. He +caught a few roach and dace, and vainly endeavoured to inveigle pike. +His failure was caused, perhaps, by scruples as to the use of live bait, +which led him to look up some elaborate recipes in Walton's 'Compleat +Angler.' Pike, though not very intelligent, have long seen through those +ancient secrets. + +One of these friendships led to a characteristic little incident. In the +Christmas holidays of 1844 Fitzjames was invited to stay with the father +of his friend Beamont, who was a solicitor at Warrington. There could +not, as I had afterwards reason to know, have been a quieter or simpler +household. But they had certain gaieties. Indeed, if my memory does not +deceive me, Fitzjames there made his first and only appearance upon the +stage in the character of Tony Lumpkin. My father was alarmed by the +reports of these excesses, and, as he was going to the Diceys, at +Claybrook, wrote to my brother of his intentions. He hinted that +Fitzjames, if he were at liberty, might like a visit to his cousins. +Upon arriving at Rugby station he found Fitzjames upon the platform. The +lad had at once left Warrington, though a party had been specially +invited for his benefit, having interpreted the paternal hint in the +most decisive sense. My father, I must add, was shocked by the results +of his letter, and was not happy till he had put himself right with the +innocent Beamonts. + +Under Balston's advice Fitzjames was beginning to read for the +Newcastle. Before much progress had been made in this, however, my +father discovered his son's unhappiness at school. Although the deep +designs of reform with which the masters seem to have credited him were +purely imaginary, my father had no high opinion of Eton, and devised +another scheme. Fitzjames went to the school for the last time about +September 23, 1845, and then tore off his white necktie and stamped upon +it. He went into the ante-chapel and scowled, he says, at the boys +inside, not with a benediction. It was the close of three years to which +he occasionally refers in his letters, and always much in the same +terms. They were, in the main, unhappy, and, as he emphatically +declared, the only unhappy years of his life, but they had taught him a +lesson. + + +III. KING'S COLLEGE + +On October 1, 1845, he entered King's College, London. Lodgings were +taken for him at Highgate Hill, within a few doors of his uncle, Henry +Venn. He walked the four miles to the college, dined at the Colonial +Office at two, and returned by the omnibus. He was now his own master, +the only restriction imposed upon him being that he should every evening +attend family prayers at his uncle's house. The two years he spent at +King's College were, he says, 'most happy.' He felt himself changed from +a boy to a man. The King's College lads, who, indeed called themselves +'men,' were of a lower social rank than the Etonians, and, as Fitzjames +adds, unmistakably inferior in physique. Boys who had the Strand as the +only substitute for the playing-fields were hardly likely to show much +physical prowess. But they had qualities more important to him. They +were industrious, as became the sons of professional and business men. +Their moral tone was remarkably good; he never knew, he says, a more +thoroughly well-behaved set of lads, although he is careful to add that +he does not think that in this respect Eton was bad. His whole education +had been among youths 'singularly little disposed to vice or a riot in +any form.' But the great change for him was that he could now find +intellectual comradeship. There was a debating society, in which he +first learnt to hear his own voice, and indeed became a prominent +orator. He is reported to have won the surname 'Giant Grim.' His most +intimate friend was the present Dr. Kitchin, Dean of Durham. The lads +discussed politics and theology and literature, instead of putting down +to affectation any interest outside of the river and the playing-fields. +Fitzjames not only found himself in a more congenial atmosphere, but +could hold his own better among youths whose standard of scholarship was +less exalted than that of the crack Latin versemakers at Eton, although +the average level was perhaps higher. In 1846 he won a scholarship, and +at the summer examination was second in classics. In 1847 he was only +just defeated for a scholarship by an elder boy, and was first, both in +classics and English literature, in the examinations, besides winning a +prize essay. + +Here, as elsewhere, he was much interested by the theological tone of +his little circle, which was oddly heterogeneous. There was, in the +first place, his uncle, Henry Venn, to whom he naturally looked up as +the exponent of the family orthodoxy. Long afterwards, upon Venn's +death, he wrote, 'Henry Venn was the most triumphant man I ever knew.' +'I never,' he adds, 'knew a sturdier man.' Such qualities naturally +commanded his respect, though he probably was not an unhesitating +disciple. At King's College, meanwhile, which prided itself upon its +Anglicanism, he came under a very different set of teachers. The +principal, Dr. Jelf, represented the high and dry variety of +Anglicanism. I can remember how, a little later, I used to listen with +wonder to his expositions of the Thirty-nine Articles. What a marvellous +piece of good fortune it was, I used dimly to consider, that the Church +of England had always hit off precisely the right solution in so many +and such tangled controversies! But King's College had a professor of a +very different order in F. D. Maurice. His personal charm was +remarkable, and if Fitzjames did not become exactly a disciple he was +fully sensible of Maurice's kindness of nature and loftiness of purpose. +He held, I imagine, in a vague kind of way, that here might perhaps be +the prophet who was to guide him across the deserts of infidelity into +the promised land where philosophy and religion will be finally +reconciled. Of this, however, I shall have more to say hereafter. + +I must now briefly mention the changes which took place at this time in +our family. In 1846 my brother Herbert made a tour to Constantinople, +and on his return home was seized by a fever and died at Dresden on +October 22. My father and mother had started upon the first news of the +illness, but arrived too late to see their son alive. Fitzjames in the +interval came to Windsor, and, as my mother records, was like a father +to the younger children. The journey to Dresden, with its terrible +suspense and melancholy end, was a severe blow to my father. From that +time, as it seems to me, he was a changed man. He had already begun to +think of retiring from his post, and given notice that he must be +considered as only holding it during the convenience of his +superiors.[52] He gave up the house at Windsor, having, indeed, kept it +on chiefly because Herbert was fond of the place. We settled for a time +at Wimbledon. There my brother joined us in the early part of 1847. A +very severe illness in the autumn of 1847 finally induced my father to +resign his post. In recognition of his services he was made a privy +councillor and K.C.B. His retirement was at first provisional, and, on +recovering, he was anxious to be still employed in some capacity. The +Government of the day considered the pension to which he was entitled an +inadequate reward for his services. There was some talk of creating the +new office of Assessor to the Judicial Committee of the Privy Council, +to which he was to be appointed. This proved to be impracticable, but +his claim was partly recognised in his appointment to succeed William +Smyth (died June 26, 1849) as Regius Professor of Modern History at +Cambridge.[53] I may as well mention here the later events of his life, +as they will not come into any precise connection with my brother's +history. The intimacy between the two strengthened as my brother +developed into manhood, and they were, as will be seen, in continual +intercourse. But after leaving King's College my brother followed his +own lines, though for a time an inmate of our household. + +The Kensington house having been let, we lived in various suburban +places, and, for a time, at Cambridge. My father's professorship +occupied most of his energies in later years. He delivered his first +course in the May term of 1850. Another very serious illness, +threatening brain fever, interrupted him for a time, and he went abroad +in the autumn of 1850. He recovered, however, beyond expectation, and +was able to complete his lectures in the winter, and deliver a second +course in the summer of 1851. These lectures were published in 1852 as +'Lectures on the History of France.' They show, I think, the old +ability, but show also some failure of the old vivacity. My father did +not possess the profound antiquarian knowledge which is rightly demanded +in a professor of the present day; and, indeed, I think it is not a +little remarkable that, in the midst of his absorbing work, he had +acquired so much historical reading as they display. But, if I am not +mistaken, the lectures have this peculiar merit--that they are obviously +written by a man who had had vast practical experience of actual +administrative work. They show, therefore, an unusual appreciation of +the constitutional side of French history; and he anticipated some of +the results set forth with, of course, far greater knowledge of the +subject, in Tocqueville's 'Ancien Régime.' Tocqueville himself wrote +very cordially to my father upon the subject; and the lectures have been +valued by very good judges. Nothing, however, could be more depressing +than the position of a professor at Cambridge at that time. The first +courses delivered by my father were attended by a considerable number of +persons capable of feeling literary curiosity--a class which was then +less abundant than it would now be at Cambridge. But he very soon found +that his real duty was to speak to young gentlemen who had been driven +into his lecture-room by well-meant regulations; who were only anxious +to secure certificates for the 'poll' degree, and whose one aim was to +secure them on the cheapest possible terms. To candidates for honours, +the history school was at best a luxury for which they could rarely +spare time, and my father had to choose between speaking over the heads +of his audience and giving milk and water to babes. The society of the +Cambridge dons in those days was not much to his taste, and he soon gave +up residence there. + +About the beginning of 1853 he took a house in Westbourne Terrace, which +became his headquarters. In 1855 he accepted a professorship at +Haileybury, which was then doomed to extinction, only to hold it during +the last three years of the existence of the college. These lectures +sufficiently occupied his strength, and he performed them to the best of +his ability. The lectures upon French history were, however, the last +performance which represented anything like his full powers. + + +IV. CAMBRIDGE + +In October 1847 my brother went into residence at Trinity College, +Cambridge. 'My Cambridge career,' he says, 'was not to me so memorable +or important a period of life as it appears to some people.' He seems to +have extended the qualification to all his early years. 'Few men,' he +says, 'have worked harder than I have for the last thirty-five years, +but I was a very lazy, unsystematic lad up to the age of twenty-two.' He +would sometimes speak of himself as 'one of a slowly ripening race,' and +set little value upon the intellectual acquirements attained during the +immature period. Yet I have sufficiently shown that in some respects he +was even exceptionally developed. From his childhood he had shared the +thoughts of his elders; he had ceased to be a boy when he had left Eton +at sixteen; and he came up to Cambridge far more of a grown man than +nine in ten of his contemporaries. So far, indeed, as his character was +concerned, he had scarcely ever been a child: at Cambridge, as at Eton, +he regarded many of the ambitions of his contemporaries as puerile. +Even the most brilliant undergraduates are sometimes tempted to set an +excessive value upon academical distinction. A senior wranglership +appears to them to be the culminating point of human glory, instead of +the first term in the real battle of life. Fitzjames, far from sharing +this delusion, regarded it, perhaps, with rather too much contempt. His +thoughts were already upon his future career, and he cared for +University distinctions only as they might provide him with a good start +in the subsequent competition. But this marked maturity of character did +not imply the possession of corresponding intellectual gifts, or, as I +should rather say, of such gifts as led to success in the Senate House. +Fitzjames had done respectably at Eton, and had been among the first +lads at King's College. He probably came up to Cambridge with confidence +that he would make a mark in examinations. But his mind, however +powerful, was far from flexible. He had not the intellectual docility +which often enables a clever youth to surpass rivals of much greater +originality--as originality not unfrequently tempts a man outside the +strait and narrow path which leads to the maximum of marks. 'I have +always found myself,' says Fitzjames, in reference to his academical +career, 'one of the most unteachable of human beings. I cannot, to this +day, take in anything at second hand. I have in all cases to learn +whatever I want to learn in a way of my own. It has been so with law, +with languages, with Indian administration, with the machinery I have +had to study in patent cases, with English composition--in a word, with +everything whatever.' For other reasons, however, he was at a +disadvantage. He not only had not yet developed, but he never at any +time possessed, the intellectual qualities most valued at Cambridge. + +The Cambridge of those days had merits, now more likely to be overlooked +than overvalued. The course was fitted to encourage strenuous masculine +industry, love of fair play, and contempt for mere showy displays of +cleverness. But it must be granted that it was strangely narrow. The +University was not to be despised which could turn out for successive +senior wranglers from 1840 to 1843 such men as Leslie Ellis, Sir George +Stokes, Professor Cayley, and Adams, the discoverer of Neptune, while +the present Lord Kelvin was second wrangler and first Smith's prizeman +in 1845. During the same period the great Latin scholar, Munro (1842), +and H. S. Maine (1844), were among the lights of the Classical Tripos. +But, outside of the two Triposes, there was no career for a man of any +ability. To parody a famous phrase of Hume's, Cambridge virtually said +to its pupils, 'Is this a treatise upon geometry or algebra? No. Is it, +then, a treatise upon Greek or Latin grammar, or on the grammatical +construction of classical authors? No. Then commit it to the flames, for +it contains nothing worth your study.' Now, in both these arenas +Fitzjames was comparatively feeble. He read classical books, not only at +Cambridge but in later life, when he was pleased to find his scholarship +equal to the task of translating. But he read them for their contents, +not from any interest in the forms of language. He was without that +subtlety and accuracy of mind which makes the born scholar. He was +capable of blunders surprising in a man of his general ability; and +every blunder takes away marks. He was still less of a mathematician. 'I +disliked,' as he says himself, 'and foolishly despised the studies of +the place, and did not care about accurate classical scholarship, in +which I was utterly wrong. I was clumsy at calculation, though I think I +have, and always have had, a good head for mathematical principles; and +I utterly loathed examinations, which seem to me to make learning all +but impossible.' + +A letter from his friend, the Rev. H. W. Watson, second wrangler in +1850, who was a year his senior, has given me a very interesting account +of impressions made at this time. The two had been together at King's +College. Fitzjames's appearance at Trinity was, writes Mr. Watson, 'an +epoch in my college life. A close intimacy sprung up between us, and +made residence at Cambridge a totally different thing from what it had +been in my first year. Your brother's wide culture, his singular force +of character, his powerful but, at that time, rather unwieldy intellect, +his Johnsonian brusqueness of speech and manner, mingled with a +corresponding Johnsonian warmth of sympathy with and loyalty to friends +in trouble or anxiety, his sturdiness in the assertion of his opinions, +and the maintenance of his principles, disdaining the smallest +concession for popularity's sake ... all these traits combined in the +formation of an individuality which no one could know intimately and +fail to be convinced that only time was wanting for the achievement of +no ordinary distinction.' 'Yet,' says Mr. Watson, 'he was distanced by +men immeasurably his inferiors.' Nor can this, as Mr. Watson rightly +adds, be regarded as a condemnation of the system rather than of my +brother. 'I attempted to prepare him in mathematics, and the well-known +Dr. Scott, afterwards headmaster of Westminster, was his private tutor +in classics; and we agreed in marvelling at and deploring the +hopelessness of our tasks. For your brother's mind, acute and able as it +was in dealing with matters of concrete human interest, seemed to lose +grasp of things viewed purely in the abstract, and positively refused to +work upon questions of grammatical rules and algebraical formulæ.' When +they were afterwards fellow-students for a short time in law, Mr. Watson +remarked in Fitzjames a similar impatience of legal technicalities. He +thinks that the less formal system at Oxford might have suited my +brother better. At that time, however, Cambridge was only beginning to +stir in its slumbers. The election of the Prince Consort to the +Chancellorship in 1847 (my brother's first year of residence) had roused +certain grumblings as to the probable 'Germanising' of our ancient +system; and a beginning was made, under Whewell's influence, by the +institution of the 'Moral Sciences' and 'Natural Sciences' Triposes in +1851. The theory was, apparently, that, if you ask questions often +enough, people will learn in time to answer them. But for the present +they were regarded as mere 'fancy' examinations. No rewards were +attainable by success; and the ambitious undergraduates kept to the +ancient paths. + +I may as well dispose here of one other topic which seems appropriate to +University days. Fitzjames cared nothing for the athletic sports which +were so effectually popularised soon afterwards in the time of 'Tom +Brown's School Days.' Athletes, indeed, cast longing eyes at his +stalwart figure. One eminent oarsman persuaded my brother to take a seat +in a pair-oared boat, and found that he could hardly hold his own +against the strength of the neophyte. He tried to entice so promising a +recruit by offers of a place in the 'Third Trinity' crew and ultimate +hopes of a 'University Blue.' Fitzjames scorned the dazzling offer. I +remember how Ritson, the landlord at Wastdale Head, who had wrestled +with Christopher North, lamented in after years that Fitzjames had never +entered the ring. He spoke in the spirit of the prize-fighter who said +to Whewell, 'What a man was lost when they made you a parson!' His only +taste of the kind was his hereditary love of walking. His mother +incidentally observes in January 1846, that he has accomplished a walk +of thirty-three miles; and in later days that was a frequent allowance. +Though not a fast walker, he had immense endurance. He made several +Alpine tours, and once (in 1860) he accompanied me in an ascent of the +Jungfrau with a couple of guides. He was fresh from London; we had +passed a night in a comfortless cave; the day was hot, and his weight +made a plod through deep snow necessarily fatiguing. We reached the +summit with considerable difficulty. On the descent he slipped above a +certain famous bergschrund; the fall of so ponderous a body jerked me +out of the icy steps, and our combined weight dragged down the guides. +Happily the bergschrund was choked with snow, and we escaped with an +involuntary slide. As we plodded slowly homewards, we expected that his +exhaustion would cause a difficulty in reaching the inn. But by the time +we got there he was, I believe, the freshest of the party. I remember +another characteristic incident of the walk. He began in the most +toilsome part of the climb to expound to me a project for an article in +the 'Saturday Review.' I consigned that journal to a fate which I +believe it has hitherto escaped. But his walks were always enjoyed as +opportunities for reflection. Occasionally he took a gun or a rod, and I +am told was not a bad shot. He was, however, rather inclined to complain +of the appearance of a grouse as interrupting his thoughts. In sport of +the gambling variety he never took the slightest interest; and when he +became a judge, he shocked a Liverpool audience by asking in all +simplicity, 'What is the "Grand National"?' That, I understand, is like +asking a lawyer, What is a _Habeas Corpus_? He was never seized with the +athletic or sporting mania, much as he enjoyed a long pound through +pleasant scenery. In this as in some other things he came to think that +his early contempt for what appeared to be childish amusements had been +pushed rather to excess. + +I return to Cambridge. My brother knew slightly some of the leading men +of the place. The omniscient Whewell, who concealed a warm heart and +genuine magnanimity under rather rough and overbearing manners, had +welcomed my father very cordially to Cambridge and condescended to be +polite to his son. But the gulf which divided him from an undergraduate +was too wide to allow the transmission of real personal influence. +Thompson, Whewell's successor in the mastership, was my brother's tutor. +He is now chiefly remembered for certain shrewd epigrams; but then +enjoyed a great reputation for his lectures upon Plato. My brother +attended them; but from want of natural Platonism or for other reasons +failed to profit by them, and thought the study was sheer waste of time. +Another great Cambridge man of those days, the poetical mathematician, +Leslie Ellis, was kind to my brother, who had an introduction to him +probably from Spedding. Ellis was already suffering from the illness +which confined him to his room at Trumpington, and prevented him from +ever giving full proofs of intellectual powers, rated by all who knew +him as astonishing. I may quote what Fitzjames says of one other +contemporary, the senior classic of his own year: 'Lightfoot's +reputation for accuracy and industry was unrivalled; but it was not +generally known what a depth of humour he had or what general force of +character.' Lightfoot's promotion to the Bishopric of Durham removed +him, as my brother thought, from his proper position as a teacher; and +he suffered 'under the general decay of all that belongs to theology.' +I do not find, however, that Lightfoot had any marked influence upon +Fitzjames. + +The best thing that the ablest man learns at college, as somebody has +said, is that there are abler men than himself. My brother became +intimate with several very able men of his own age, and formed +friendships which lasted for life. He met them especially in two +societies, which influenced him as they have influenced many men +destined to achieve eminence. The first was the 'Union.' There his +oratory became famous. The 'Gruffian' and 'Giant Grim' was now known as +the 'British Lion'; and became, says Mr. Watson, 'a terror to the +shallow and wordy, and a merciless exposer of platitudes and shams.' Mr. +Watson describes a famous scene in the October term of 1849 which may +sufficiently illustrate his position. 'There was at that time at Trinity +a cleverish, excitable, worthy fellow whose mind was a marvellous +mixture of inconsistent opinions which he expounded with a kind of +oratory as grotesque as his views.' Tradition supplies me with one of +his flowers of speech. He alluded to the clergy as 'priests sitting upon +their golden middens and crunching the bones of the people.' These +oddities gave my brother irresistible opportunities for making fun of +his opponent. 'One night his victim's powers of endurance gave way. The +scene resembled the celebrated outburst of Canning when goaded by the +invectives of Brougham. The man darted across the room with the obvious +intention of making a physical onslaught, and then, under what impulse +and with what purpose I do not know, the whole meeting suddenly flashed +into a crowd of excited, wrangling boys. They leapt upon the seats, +climbed upon the benches, vociferated and gesticulated against each +other, heedless of the fines and threats of the bewildered President, +and altogether reproduced a scene of the French revolutionary +Assembly.' Mr. Llewelyn Davies was the unfortunate President on this +occasion, and mentions that my brother commemorated the scene in a +'heroic ballad' which has disappeared. + +From the minutes of the Society[54] 'I learn further details of this +historic scene. The debate (November 27, 1849) arose upon a motion in +favour of Cobden. His panegyrist made 'such violent interruptions' that +a motion was made for his expulsion, but carried by an insufficient +majority. Another orator then 'became unruly' and was expelled by a +superabundant majority, while the original mover was fined 2_l._ The +motion was then unanimously negatived, 'the opener not being present to +reply.' From the records of other debates I learn that Fitzjames was in +favour of the existing Church Establishment as against advocates of +change, whether high churchmen or liberationists. He also opposed +motions for extension of the suffrage, without regard to education or +property, moved by Sir W. Harcourt. He agrees, however, with Harcourt in +condemning the game laws. His most characteristic utterance was when the +admirer of Cobden had moved that 'to all human appearance we are +warranted in tracing for our own country through the dim perspective of +coming time an exalted and glorious destiny.' Fitzjames moved as an +amendment 'that the House, while it acknowledges the many dangers to +which the country is exposed, trusts that through the help of God we may +survive them.' This amendment was carried by 60 to 0. + +The other society was one which has included a very remarkable number of +eminent men. In my undergraduate days we used to speak with bated breath +of the 'Apostles'--the accepted nickname for what was officially called the +Cambridge Conversazione Society. It was founded about 1820, and had +included such men as Tennyson (who, as my brother reports, had to leave +the Society because he was too lazy to write an essay), the two younger +Hallams, Maurice, Sterling, Charles Buller, Arthur Helps, James +Spedding, Monckton Milnes, Tom Taylor, Charles Merivale, Canon +Blakesley, and others whom I shall have to mention. The existence of a +society intended to cultivate the freest discussion of all the great +topics excited some suspicion when, about 1834, there was a talk of +abolishing tests. It was then warmly defended by Thirlwall, the +historian, who said that many of its members had become ornaments of the +Church.[55] + +But the very existence of this body was scarcely known to the University +at large; and its members held reticence to be a point of honour. You +might be aware that your most intimate friend belonged to it: you had +dimly inferred the fact from his familiarity with certain celebrities, +and from discovering that upon Saturday evenings he was always +mysteriously engaged. But he never mentioned his dignity; any more than +at the same period a Warrington would confess that he was a contributor +to the leading journals of the day. The members were on the look-out for +any indications of intellectual originality, academical or otherwise, +and specially contemptuous of humbug, cant, and the qualities of the +'windbag' in general. To be elected, therefore, was virtually to receive +a certificate from some of your cleverest contemporaries that they +regarded you as likely to be in future an eminent man. The judgment so +passed was perhaps as significant as that implied by University honours, +and a very large proportion of the apostles have justified the +anticipations of their fellows. + +My brother owed his election at an unusually early period of his career +to one of the most important friendships of his life. In the summer +vacation of 1845 F. W. Gibbs was staying at Filey, reading for the +Trinity Fellowship, which he obtained in the following October. +Fitzjames joined him, and there met Henry Sumner Maine, who had recently +(1844) taken his degree at Cambridge, when he was not only 'senior +classic' but a senior classic of exceptional brilliancy. Both Maine and +Gibbs were apostles and, of course, friends. My brother's first +achievement was to come near blowing out his new friend's brains by the +accidental discharge of a gun. Maine happily escaped, and must have +taken a liking to the lad. In 1847 Maine was appointed to the Regius +Professorship of Civil Law in Cambridge. The study which he was to teach +had fallen into utter decay. Maine himself cannot at that time have had +any profound knowledge of the Civil Law--if, indeed, he ever acquired +such knowledge. But his genius enabled him to revive the study in +England--although no genius could galvanise the corpse of legal studies +at the Cambridge of those days into activity. Maine, as Fitzjames says, +'made in the most beautiful manner applications of history and +philosophy to Roman law, and transfigured one of the driest of subjects +into all sorts of beautiful things without knowing or caring much about +details.' He was also able to 'sniff at Bentham' for his ignorance in +this direction. 'I rebelled against Maine for many years,' says +Fitzjames, 'till at last I came to recognise, not only his wonderful +gifts, but the fact that at bottom he and I agreed fundamentally, though +it cost us both a good deal of trouble to find it out.' I quote this +because it bears upon my brother's later development of opinion. For +the present, the personal remark is more relevant. Maine, says +Fitzjames, 'was perfectly charming to me at college, as he is now. He +was most kind, friendly, and unassuming; and, though I was a freshman +and he a young don,[56] and he was twenty-six when I was twenty--one of +the greatest differences of age and rank which can exist between two +people having so much in common--we were always really and effectually +equal. We have been the closest of friends all through life.' I think, +indeed, that Maine's influence upon my brother was only second to that +of my father. + +Maine brought Fitzjames into the apostles in his first term.[57] Maine, +says my brother, 'was a specially shining apostle, and in all +discussions not only took by far the first and best part, but did it so +well and unpretentiously, and in a strain so much above what the rest of +us could reach, that it was a great piece of education to hear him.' +Other members of the little society, which generally included only five +or six--the name 'apostles' referring to the limit of possible +numbers--were E. H. Stanley (afterwards Lord Derby), who left in March +1848, Vernon Harcourt (now Sir William), H. W. Watson, Julian Fane,[58] +and the present Canon Holland. Old members--Monckton Milnes, James +Spedding, Henry Fitzmaurice Hallam, and W. H. Thompson (the +tutor)--occasionally attended meetings. The late Professor Hort and the +great physicist, Clerk Maxwell, joined about the time of my brother's +departure. He records one statement of Maxwell's which has, I suspect, +been modified in transmission. The old logicians, said Maxwell, +recognised four forms of syllogism. Hamilton had raised the number to 7, +but he had himself discovered 135. This, however, mattered little, as +the great majority could not be expressed in human language, and even if +expressed were not susceptible of any meaning. + +This specimen would give a very inaccurate notion of the general line of +discussion. By the kindness of Professor Sidgwick, I am enabled to give +some specimens of the themes supported by my brother, which may be of +interest, not merely in regard to him, but as showing what topics +occupied the minds of intelligent youths at the time. The young +gentlemen met every Saturday night in term time and read essays. They +discussed all manner of topics. Sometimes they descended to mere +commonplaces--Is a little knowledge a dangerous thing? Is it possible +_ridentem dicere verum_? (which Fitzjames is solitary in denying)--but +more frequently they expatiate upon the literary, poetical, ethical, and +philosophical problems which can be answered so conclusively in our +undergraduate days. Fitzjames self-denyingly approves of the position +assigned to mathematics at Cambridge. In literary matters I notice that +he does not think the poetry of Byron of a 'high order'; that he reads +some essays of Shelley, which are unanimously voted 'unsatisfactory'; +that he denies that Tennyson's 'Princess' shows higher powers than the +early poems (a rather ambiguous phrase); that he considers Adam, not +Satan, to be the hero of 'Paradise Lost'; and, more characteristically, +that he regards the novels of the present day as 'degenerate,' and, on +his last appearance, maintains the superiority of Miss Austen's 'Emma' +to Miss Brontë's 'Jane Eyre.' 'Jane Eyre' had then, I remember, some +especially passionate admirers at Cambridge. His philosophical theories +are not very clear. He thinks, like some other people, that Locke's +chapter on 'Substance' is 'unsatisfactory'; and agrees with some +'strictures' on the early chapters of Mill's 'Political Economy.' He +writes an essay to explode the poor old social contract. He holds that +the study of metaphysics is desirable, but adds the note, 'not including +ontological inquiries under the head of metaphysics.' He denies, +however, the proposition that 'all general truths are founded on +experience.' He thinks that a meaning can be attached to the term +'freewill'; but considers it impossible 'to frame a satisfactory +hypothesis as to the origin of evil.' Even the intellect of the apostles +had its limits. His ethical doctrines seem to have inclined to +utilitarianism. The whole society (four members present) agrees that the +system of expediency, 'so far from being a derogation from the moral +dignity of man, is the only method consistent with the conditions of his +action.' He is neutral upon the question whether 'self-love is the +immediate motive of all our actions,' and considers that question +unmeaning, 'as not believing it possible that a man should be at once +subject and object.' He writes an essay to show that there is no +foundation 'for a philosophy of history in the analogy between the +progressive improvement of mankind and that of which individuals are +capable,' and he holds (in opposition to Maine) that Carlyle is a +'philosophic historian.' The only direct reference to contemporary +politics is characteristic. Fane had argued that 'some elements of +socialism' should be 'employed in that reconstruction of society which +the spirit of the age demands.' Maine agrees, but Fitzjames denies that +any reconstruction of society is needed. + +Theological discussions abound. Fitzjames thinks that there are grounds +independent of revelation for believing in the goodness and unity of an +intelligent First Cause. He reads an essay to prove that we can form a +notion of inspiration which does not involve dictation. He thinks it +'more agreeable to right reason' to explain the Biblical account of the +creation by literal interpretation than 'on scientific principles,' but +adds the rider, 'so far as it can be reconciled with geological facts.' +He denies that the Pentateuch shows 'traces of Egyptian origin.' He +thinks that Paley's views of the 'essential doctrines of Christianity' +are insufficient. He approves the 'strict observance of the Sabbath in +England,' but notes that he does not wish to 'confound the Christian +Sunday with the Jewish Sabbath.' + +The instinct which leads a young man to provide himself with a good set +of dogmatic first principles is very natural; and the free and full +discussion of them with his fellows, however crude their opinions may +be, is among the very best means of education. I need only remark that +the apostles appear to have refrained from discussion of immediate +politics, and to have been little concerned in some questions which were +agitating the sister University. They have nothing to say about +Apostolical Succession and the like; nor are there any symptoms of +interest in German philosophy, which Hamilton and Mansel were beginning +to introduce. At Cambridge the young gentlemen are content with Locke +and Mill; and at most know something of Coleridge and Maurice. Mr. +Watson compares these meetings to those at Newman's rooms in Oxford as +described by Mark Pattison. There a luckless advocate of ill-judged +theories might be crushed for the evening by the polite sentence, _Very +likely_. At the Cambridge meetings, the trial to the nerves, as Mr. +Watson thinks, was even more severe. There was not the spell of common +reverence for a great man, in whose presence a modest reticence was +excusable. You were expected to speak out, and failure was the more +appalling. The contests between Stephen and Harcourt were especially +famous. Though, says Mr. Watson, your brother was 'not a match in +adroitness and chaff' for his great 'rival,' he showed himself at his +best in these struggles. 'The encounters were veritable battles of the +gods, and I recall them after forty years with the most vivid +recollection of the pleasure they caused.' When Sir William Harcourt +entered Parliament, my brother remarked to Mr. Llewelyn Davies, 'It does +not seem to be in the natural order of things that Harcourt should be in +the House and I not there to criticise him.' + +Fitzjames's position in regard both to theology and politics requires a +little further notice. At this time my brother was not only a stern +moralist, but a 'zealous and reverential witness on behalf of dogma, and +that in the straitest school of the Evangelicals.' Mr. Watson mentions +the death at college of a fellow-student during the last term of my +brother's residence. In his last hours the poor fellow confided to his +family his gratitude to Fitzjames for having led him to think seriously +on religious matters. I find a very minute account of this written by my +brother at the time to a common friend. He expresses very strong +feeling, and had been most deeply moved by his first experience of a +deathbed; but he makes no explicit reflections. Though decidedly of the +evangelical persuasion at this period, and delighting in controversy +upon all subjects, great and small, his intense aversion to +sentimentalism was not only as marked as it ever became, but even led to +a kind of affectation of prosaic matter of fact stoicism, a rejection +of every concession to sentiment, which he afterwards regarded as +excessive. + +The impression made upon him by contemporary politics was remarkable. +The events of 1848 stirred all young men in one way or the other; and +although the apostles were discussing the abstract problems of freewill +and utilitarianism, they were no doubt keenly interested in concrete +history. No one was more moved than Fitzjames. He speaks of the +optimistic views which were popular with the Liberals after 1832, +expounded by Cobden and Bright and supposed to be sanctioned by the +Exhibition of 1851. It was the favourite cant that Captain Pen 'had got +the best of Captain Sword, and that henceforth the kindly earth would +slumber, lapt in universal law. I cannot say how I personally loathed +this way of thinking, and how radically false, hollow and disgusting it +seemed to me then, and seems to me now.' The crash of 1848 came like a +thunderbolt, and 'history seemed to have come to life again with all its +wild elemental forces.' For the first time he was aware of actual war +within a small distance, and the settlement of great questions by sheer +force. 'How well I remember my own feelings, which were, I think, the +feelings of the great majority of my age and class, and which have ever +since remained in me as strong and as unmixed as they were in 1848. I +feel them now (1887) as keenly as ever, though the world has changed and +thinks and feels, as it seems, quite differently. They were feelings of +fierce, unqualified hatred for the revolution and revolutionists; +feelings of the most bitter contempt and indignation against those who +feared them, truckled to them, or failed to fight them whensoever they +could and as long as they could: feelings of zeal against all popular +aspirations and in favour of all established institutions whatever their +various defects or harshnesses (which, however, I wished to alter +slowly and moderately): in a word, the feelings of a scandalised +policeman towards a mob breaking windows in the cause of humanity. I +should have liked first to fire grapeshot down every street in Paris, +till the place ran with blood, and next to try Louis Philippe and those +who advised him not to fight by court martial, and to have hanged them +all as traitors and cowards. The only event in 1848 which gave me real +pleasure was the days of June, when Cavaignac did what, if he had been a +man or not got into a fright about his soul, or if he had had a real +sense of duty instead of a wretched consciousness of weakness and a +false position, Louis Philippe would have done months before.' He +cannot, he admits, write with calmness to this day of the king's +cowardice; and he never passed the Tuileries in later life without +feeling the sentiment about Louis XVI. and his 'heritage splendid' +expressed by Thackeray's drummer, 'Ah, shame on him, craven and coward, +that had not the heart to defend it!' + +'I have often wondered,' adds Fitzjames, 'at my own vehement feelings on +these subjects, and I am not altogether prepared to say that they are +not more or less foolish. I have never seen war. I have never heard a +shot fired in anger, and I have never had my courage put to any proof +worth speaking of. Have I any right to talk of streets running with +blood? Is it not more likely that, at a pinch, I might myself run in +quite a different direction? It is one of the questions which will +probably remain unanswered for ever, whether I am a coward or not. But +that has nothing really to do with the question. If I am a coward, I am +contemptible: but Louis Philippe was a coward and contemptible whether I +am a coward or not; and my feelings on the whole of this subject are, at +all events, perfectly sincere, and are the very deepest and most +genuine feelings I have.' Fitzjames's only personal experience of +revolutionary proceedings was on the famous 10th of April, when he was +in London, but saw only special constables. The events of the day +confirmed him in the doctrine that every disorganised mob is more likely +to behave in the spirit of the lowest and most contemptible units than +in the spirit of what is highest in them. + +I can only add one little anecdote of those days. A friend of my +brother's rushed into his rooms obviously to announce some very exciting +piece of news. Is the mob triumphant in Paris? 'I don't know,' was the +reply, 'but a point has been decided in the Gorham case.' Good +evangelical as Fitzjames then was, he felt that there were more +important controversies going on than squabbles over baptismal +regeneration. A curious set of letters written in his first vacation to +his friend Dr. Kitchin show, however, that he then took an eager +interest in this doctrine. He discusses it at great length in the +evangelical sense, with abundant quotations of texts. + +While interested in these matters, winning fame at the Union and +enjoying the good opinion of the apostles, Fitzjames was failing in a +purely academical sense. He tried twice for a scholarship at Trinity, +and both times unsuccessfully, though he was not very far from success. +The failure excluded him, as things then were, from the possibility of a +fellowship, and a degree became valueless for its main purpose. He +resolved, therefore, to go abroad with my father, who had to travel in +search of health. He passed the winter of 1850-1 in Paris, where he +learnt French, and attended sittings of the Legislative Assembly, and +was especially interested by proceedings in the French law-courts. He +kept the May term of 1851 at Cambridge, and went out in the 'Poll.' +Judging from the performances of his rivals, he would probably have +been in the lower half of the first class in the Classical Tripos. +Although his last months at Cambridge were not cheering, he retained a +feeling for the place very unlike his feeling towards Eton. He had now +at least found himself firmly on his own legs, measured his strength +against other competitors, and made lasting friendships with some of the +strongest. It had been, he says, 'my greatest ambition to get a +fellowship at Trinity, but I got it at last, however, for I was elected +an honorary Fellow in the autumn of 1885. I have had my share of +compliments, but I never received one which gave me half so much +pleasure.' He visited Cambridge in later years and was my guest, and +long afterwards the guest of his friend Maine, at certain Christmas +festivities in Trinity Hall. He speaks in the warmest terms of his +appreciation of the place, 'old and dignified, yet fresh and vigorous.' +Nearly his last visit was in the autumn of 1885, when he gave a dinner +to the apostles, of whom his son James was then a member. + +Fitzjames's friends were naturally surprised at his throwing up the +game. Most of them set, as I have intimated, a higher value upon +academical honours, considered by themselves, than he ever admitted to +be just. Possibly they exaggerated a little the disgust which was +implied by his absolute abandonment of the course. And yet, I find the +impression among those who saw most of him at the time, that the +disappointment was felt with great keenness. The explanation is given, I +think, in some remarks made by my father to Mr Watson. My father held +that the University system of distributing honours was very faulty. Men, +he said, wanted all the confidence they could acquire in their own +powers for the struggle of life. Whatever braced and stimulated +self-reliance was good. The honour system encouraged the few who +succeeded and inflicted upon the rest a 'demoralising sense of +failure.' I have no doubt that my father was, in fact, generalising from +the case of Fitzjames. What really stung the young man was a more or +less dim foreboding of the difficulties which were to meet him in the +world at large. He was not one of the men fitted for easy success. The +successful man is, I take it, the man with an eye for the line of least +resistance. He has an instinct, that is, for the applying his strength +in the direction in which it will tell most. And he has the faculty of +so falling in with other men's modes of thinking and feeling that they +may spontaneously, if unconsciously, form a band of supporters. +Obstacles become stepping-stones to such men. It was Fitzjames's fate +through life to take the bull by the horns; to hew a path through +jungles and up steep places along the steepest and most entangled +routes; and to shoulder his way by main strength and weight through a +crowd, instead of contriving to combine external pressures into an +agency for propulsion. At this time, the contrast between his acceptance +with the ablest of his contemporaries in private and his inability to +obtain the public stamp of merit perplexed and troubled him. Maine and +Thompson could recognise his abilities. Why could not the examiners? +Might not his ambition have to struggle with similar obstacles at the +bar or in the pulpit? + +I quote from a letter written by my father during Fitzjames's academical +career to show what was the relation at this time between the two men. +My father dictates to my mother a letter to Fitzjames, dated January 19, +1849.[59] 'You well know,' he says, 'that I have long since surmounted +that paternal ambition which might have led me to thirst for your +eminence as a scholar. + +It has not pleased God to give you that kind of bodily constitution and +mental temperament which is essential to such success.' He proceeds to +say that, although success in examinations is 'not essential to the +great ends of Fitzjames's existence, it is yet very desirable that he +should become a good scholar from higher motives--such,' he adds, 'as +are expounded in Bacon's "De Augmentis."' He solemnly recommends regular +prayer for guidance in studies for which the lower motives may be +insufficient. It then occurs to my mother that the advice may be a +little discouraging. 'I am reminded by my amanuensis that I have left +you in the dark as to my opinion of your probable success in the +literary labours to which I have exhorted you. You must be a very mole +if the darkness be real. From your childhood to this day I have ever +shown you by more than words how high an estimate I entertain both of +the depth and the breadth of your capacity. I have ever conversed with +you as with a man, not as with a child; and though parental partiality +has never concealed from me the fact of your deficiency in certain +powers of mind which are essential to early excellence in learning, yet +I have never been for a moment distrustful of your possessing an +intellect which, if well disciplined and well cultured, will continue to +expand, improve, and yield excellent fruit long after the mental +faculties of many of your more fortunate rivals will have passed from +their full maturity into premature decay. Faith in yourself (which is +but one of the many forms of faith in God) is the one thing needful to +your intellectual progress; and if your faith in yourself may but +survive the disappointment of your academical ambition, that +disappointment will be converted into a blessing.' + +The letter shows, I think, under the rather elaborate phraseology, both +the perspicuity with which the father had estimated his son's talents +and the strong sympathy which bound them together. The reference to +Fitzjames's 'want of faith in himself' is significant. If want of faith +is to be measured by want of courage in tackling the difficulties of +life, no man could be really less open to the charge than Fitzjames. But +my father, himself disposed to anticipate ill fortune, had certain +reasons for attributing to his son a tendency in the same direction. +Fitzjames's hatred of all exaggeration, his resolute refusal to be +either sentimental or optimistic, led him to insist upon the gloomy side +of things. Moreover, he was still indolent; given to be slovenly in his +work, and rather unsocial in his ways, though warmly attached to a few +friends. My father, impressed by these symptoms, came to the conclusion +that Fitzjames was probably unsuited for the more active professions for +which a sanguine temper and a power of quickly attaching others are +obvious qualifications. He therefore looked forward to his son's +adoption of the clerical career, which his own deep piety as well as his +painful experience of official vexations had long made him regard as the +happiest of all careers. Circumstances strengthened this feeling. My +father's income had been diminished by his resignation, while the +education of his two sons became more expensive, and he had to +contribute to the support of his brother George. No human being could +have made us feel more clearly that he would willingly give us his last +penny or his last drop of blood. But he was for a time more than usually +vexed and anxious; and the fact could not be quite concealed. + +Fitzjames's comparative failure at Cambridge suggests to him a +significant remark. After speaking of his 'unteachableness,' he observes +that his mind was over-full of thoughts about religion, about politics, +about morals, about metaphysics, about all sorts of subjects, except +art, literature, or physical science. For art of any kind I have never +cared, and do not care in the very least. For literature, as such, I +care hardly at all. I like to be amused and instructed on the particular +things I want to know; but works of genius, as such, give me very little +pleasure, and as to the physical sciences, they interest me only so far +as they illustrate the true method of inquiry. They, or rather some of +them, have the advantage of being particularly true, and so a guide in +the pursuit of moral and distinctively human truth. For their own sake, +I care very little about them.' + + +V. READING FOR THE BAR + +My brother had definitely to make the choice of a profession upon which +he had been reflecting during his college career. He set about the task +in an eminently characteristic way. When he had failed in the last +scholarship examination, he sat down deliberately and wrote out a +careful discussion of the whole question. The result is before me in a +little manuscript book, which Fitzjames himself re-read and annotated in +1865, 1872, and 1880. He read it once more in 1893. Both text and +commentary are significant. He is anxious above all things to give +plain, tangible reasons for his conduct. He would have considered it +disgraceful to choose from mere impulse or from any such considerations +as would fall under the damnatory epithet 'sentimental.' He therefore +begins in the most prosaic fashion by an attempt to estimate the +pecuniary and social advantages of the different courses open to him. +These are in reality the Church and the Bar; although, by way of +exhibiting the openness of his mind, he adds a more perfunctory +discussion of the merits of the medical profession. Upon this his +uncle, Henry Venn, had made a sufficient comment. 'There is a +providential obstacle,' he said, 'to your becoming a doctor--you have +not humbug enough.' The argument from these practical considerations +leads to no conclusion. The main substance of the discussion is +therefore a consideration of the qualities requisite for the efficient +discharge of clerical or legal duties. A statement of these qualities, +he says, will form the major of his syllogism. The minor will then be, +'I possess or do not possess them'; and the conclusion will follow, 'I +ought to be a clergyman or a lawyer.' Although it is easy to see that +the 'major' is really constructed with a view to its applicability to +his own character, he does not explicitly give any opinions about +himself. He digested the results of the general discussions into +thirteen questions which are not stated, though it is clear that they +must have amounted to asking, Have I the desirable aptitudes? He has, +however, elaborately recorded his answers, 'Yes' or 'No,' and noted the +precise time and place of answering and the length of time devoted to +considering each. He began the inquiry on June 16, 1850. On September 23 +he proceeds to answer the questions which he, acting (as he notes) as +judge, had left to himself as jury. Questions 1 and 2 can be answered +'immediately'; but No. 3 takes two hours. The 8th, 9th, and 10th were +considered together, and are estimated to have taken an hour and a half, +between 7 and 11.30 P.M.; though, as he was in an omnibus for part of +the time and there fell asleep, this must be conjectural. The 13th +question could not be answered at all; but was luckily not important. He +had answered the 11th and 12th during a railway journey to Paris on +October 2, and had thereupon made up his mind. + +One peculiarity of this performance is the cramped and tortuous mode of +expressing himself. His thoughts are entangled, and are oddly crossed +by phrases clearly showing the influence of Maurice and Coleridge, and, +above all, of his father. 'Maurice's books,' he notes in 1865, 'did +their utmost to make me squint intellectually about this time, but I +never learnt the trick.' A very different writer of whom he read a good +deal at college was Baxter, introduced to him, I guess, by one of his +father's essays. 'What a little prig I was when I made all these +antitheses!' he says in 1865. 'I learnt it of my daddy' is the comment +of 1880. 'Was any other human being,' he asks in 1880, 'ever constructed +with such a clumsy, elaborate set of principles, setting his feelings +going as if they were clockwork?' This is the comment upon a passage +where he has twisted his thoughts into a cumbrous and perfectly needless +syllogism. He makes a similar comment on another passage in 1865, but 'I +think,' he says in 1880, 'that I was a heavy old man thirty years ago. +Fifteen years ago I was at the height of my strength. I am beginning to +feel now a little more tolerant towards the boy who wrote this than the +man who criticised it in 1865; but he was quite right.' The critic of +1865, I may note, is specially hard upon the lad of 1850 for his +ignorance of sound utilitarian authorities. He writes against an +allusion to Hobbes, 'Ignorant blasphemy of the greatest of English +philosophers!' The lad has misstated an argument from ignorance of +Bentham and Austin. 'I had looked at Bentham at the period (says 1865), +but felt a holy horror of him.' Harcourt, it is added, 'used to chaff me +about him.' 1880 admits that '1865, though a fine fellow, was rather too +hot in his Benthamism; 1880 takes it easier, and considers that 1850 was +fairly right, and that his language if not pharisaically accurate, was +plain enough for common-sense purposes.' In fact, both critics admit, +and I fully agree with them, that under all the crabbed phraseology +there was a very large substratum of good sense and sound judgment of +men, to which I add of high principle. Among the special qualifications +of a lawyer, the desire for justice takes a prominent place in his +argument. + +Looking at the whole document from the vantage-ground of later +knowledge, the real, though unconscious, purpose seems to be pretty +evident. Fitzjames had felt a repugnance to the clerical career, and is +trying to convince himself that he has reasonable grounds for a feeling +which his father would be slow to approve. There is not the least trace +of any objection upon grounds of dissent from the Articles; though he +speaks of responsibility imposed by the solemn profession required upon +ordination. His real reason is explained in a long comparison between +the 'simple-minded' or 'sympathetic' and the 'casuistical' man. They may +both be good men; but one of them possesses what the other does not, a +power of at once placing himself in close relations to others, and +uttering his own thoughts eloquently and effectively without being +troubled by reserves and perplexed considerations of the precise meaning +of words. He thinks that every clergyman ought to be ready to undertake +the 'cure of souls,' and to be a capable spiritual guide. He has no +right to take up the profession merely with a view to intellectual +researches. In fact, he felt that he was without the qualifications +which make a man a popular preacher, if the word may be used without an +offensive connotation. He could argue vigorously, but was not good at +appealing to the feelings, or offering spiritual comfort, or attracting +the sympathies of the poor and ignorant. Substantially I think that he +was perfectly right not only in the conclusion but in the grounds upon +which it was based. He was a lawyer by nature, and would have been a +most awkward and cross-grained piece of timber to convert into a +priest. He points himself to such cases as Swift, Warburton, and Sydney +Smith to show the disadvantage of a secular man in a priest's vestments. + +When his mind was made up, Fitzjames communicated his decision to his +father. The dangerous illness of 1850 had thrown his father into a +nervous condition which made him unable to read the quaint treatise I +have described. He appears, however, to have argued that a man might +fairly take orders with a view to literary work in the line of his +profession. Fitzjames yielded this ground but still held to the main +point. His father, though troubled, made no serious objection, and only +asked him to reconsider his decision and to consult Henry Venn. Henry +Venn wrote a letter, some extracts from which are appended to the volume +with characteristic comments. Venn was too sensible a man not to see +that Fitzjames had practically made up his mind. I need only observe +that Fitzjames, in reply to some hints in his uncle's letter, observes +very emphatically that a man may be serving God at the bar as in the +pulpit. His career was now fixed. 'I never did a wiser thing in my +life,' says 1865, 'than when I determined not to be a clergyman.' +'Amen!' says 1880, and I am sure that no other year in the calendar +would have given a different answer. 'If anyone should ever care to know +what sort of man I was then,' says Fitzjames in 1887, 'and, _mutatis +mutandis_, am still, that paper ought to be embodied by reference in +their recollections.' + +Fitzjames took a lodging in London, for a year or so, and then joined my +father at Westbourne Terrace. He entered at the Inner Temple, and was +duly called to the bar on January 26, 1854. His legal education, he +says, was very bad. He was for a time in the chambers of Mr. (now Lord) +Field, then the leading junior on the Midland Circuit, but it was on the +distinct understanding that he was to receive no direct instruction +from his tutor. He was also in the chambers of a conveyancer. I learnt, +he says, 'a certain amount of conveyancing, but in a most mechanical, +laborious, wooden kind of way, which had no advantage at all, except +that it gave me some familiarity with deeds and abstracts. My tutor was +a pure conveyancer; so I saw nothing of equity drafting. I worked very +hard with him, however, but I was incapable of being taught and he of +teaching.' The year 1852 was memorable for the Act which altered the old +system of special pleading. 'The new system was by no means a bad +one.... I never learnt it, at least not properly, and while I ought to +have been learning, I was still under the spell of an unpractical frame +of mind which inclined me to generalities and vagueness, and had in it a +vast deal of laziness. When I look back on these times, I feel as if I +had been only half awake or had not come to my full growth, though I was +just under twenty-five when I was called. How I ever came to be a +moderately successful advocate, still more to be a rather distinguished +judge, is to me a mystery. I managed, however, to get used to legal ways +of looking at things and to the form and method of legal arguments.' He +was at the same time going through an apprenticeship to journalism, of +which it will be more convenient to speak in the next chapter. It is +enough to say for the present that his first efforts were awkward and +unsuccessful. After he was called to the bar, he read for the LL.B. +examination of the University of London; and not only obtained the +degree but enjoyed his only University success by winning a scholarship. +One of his competitors was the present Sir Mountstuart Grant Duff. This +performance is connected with some very important passages in his +development. + +He had made some intimate friendships beyond the apostolic circle, of +whom Grant Duff was one of the first. They had already met at the rooms +of Charles Henry Pearson, one of my brother's King's College +friends.[60] Grant Duff was for a long time in very close intimacy, and +the friendship lasted for their lives, uninterrupted by political +differences. They were fellow-pupils in Field's chambers, were on +circuit together for a short time till Grant Duff gave up the +profession; and their marriages only brought new members into the +alliance. I must confine myself to saying that my brother's frequent +allusions prove that he fully appreciated the value of this friendship. +Another equally intimate friendship of the same date was with Henry John +Stephen Smith.[61] Smith was a godson of my uncle, Henry John Stephen. +He and his sister had been from very early years on terms of especial +intimacy with our cousins the Diceys. Where and when his friendship with +my brother began I do not precisely know, but it was already very close. +As in some later cases, of which I shall have to speak, the friendship +seemed to indicate that Fitzjames was attracted by complementary rather +than similar qualities in the men to whom he was most attached. No two +men of ability could be much less like each other. Smith's talents were +apparently equally adapted for fine classical scholarship and for the +most abstract mathematical investigations. If it was not exactly by the +toss of a shilling it was by an almost fortuitous combination of +circumstances that he was decided to take to mathematics, and in that +field won a European reputation. He soared, however, so far beyond +ordinary ken that even Europe must be taken to mean a small set of +competent judges who might almost be reckoned upon one's fingers. But +devoted as he was to these abstruse studies, Smith might also be +regarded as a typical example of the finest qualities of Oxford society. +His mathematical powers were recognised by his election to the Savilian +professorship in 1860, and the recognition of his other abilities was +sufficiently shown by the attempt to elect him member for the University +in 1878. He would indeed have been elected had the choice been confined +to the residents at Oxford. Smith could discourse upon nothing without +showing his powers, and he would have been a singular instance in the +House of Commons of a man respected at once for scholarship and for +profound scientific knowledge, and yet a chosen mouthpiece of the +political sentiments of the most cultivated constituency in the country. +The recognition of his genius was no doubt due in great part to the +singular urbanity which made him the pride and delight of all Oxford +common rooms. With the gentlest of manners and a refined and delicate +sense of humour, he had powers of launching epigrams the subtle flavour +of which necessarily disappears when detached from their context. But it +was his peculiar charm that he never used his powers to inflict pain. +His hearers felt that he could have pierced the thickest hide or laid +bare the ignorance of the most pretentious learning. But they could not +regret a self-restraint which so evidently proceeded from abounding +kindness of heart. Smith's good nature led him to lend too easy an ear +to applications for the employment of his abilities upon tasks to which +his inferiors would have been competent. I do not know whether it was to +diffidence and reserve or to the gentleness which shrinks from +dispelling illusions that another peculiarity is to be attributed. On +religious matters, says his biographer, he was 'absolutely reticent'; +he would discuss such topics indeed, but without ever mentioning his own +faith. + +I mention this because it is relevant to his relations with my brother. +Fitzjames was always in the habit of expressing his own convictions in +the most downright and uncompromising fashion. He loved nothing better +than an argument upon first principles. His intimacy with Smith was +confirmed by many long rambles together; and for many years he made a +practice of spending a night at Smith's house at Oxford on his way to +and from the Midland Circuit. There, as he says, 'we used to sit up +talking ethics and religion till 2 or 3 A.M.' I could not however, if I +wished, throw any light upon Smith's views; Smith, he says in 1862, is a +most delightful companion when he has got over his 'reserve'; and a year +later he says that Smith is 'nearly the only man who cordially and fully +sympathises with my pet views.' What were the pet views is more than I +can precisely say. I infer, however, from a phrase or two that Smith's +conversation was probably sceptical in the proper sense; that is, that +he discussed first principles as open questions, and suggested logical +puzzles. But my brother also admits that he never came to know what was +Smith's personal position. He always talked 'in the abstract' or 'in the +historical vein,' and 'seemed to have fewer personal plans, wishes and +objects of any kind than almost any man I have ever known.' + +These talks at any rate, with distinguished Oxford men, must have helped +to widen my brother's intellectual horizon. They had looked at the +problems of the day from a point of view to which the apostles seem to +have been comparatively blind. Another influence had a more obvious +result. Fitzjames had to read Stephen's commentaries and Bentham[62] +for the London scholarship. Bentham now ceased to be an object of holy +horror. My brother, in fact, became before long what he always remained, +a thorough Benthamite with certain modifications. It was less a case of +influence, however, than of 'elective affinity' of intellect. The +account of Fitzjames's experience at Cambridge recalls memories of the +earlier group who discussed utilitarianism under the leadership of +Charles Austin and looked up to James Mill as their leader. The hatred +for 'sentimentalism' and 'vague generalities' and the indifference to +mere poetical and literary interests were common to both. The strong +points of Benthamism may, I think, be summed up in two words. It meant +reverence for facts. Knowledge was to be sought not by logical jugglery +but by scrupulous observation and systematic appeals to experience. +Whether in grasping at solid elements of knowledge Benthamists let drop +elements of equal value, though of less easy apprehension, is not to my +purpose. But to a man whose predominant faculty was strong common sense, +who was absolutely resolved that whatever paths he took should lead to +realities, and traverse solid ground instead of following some +will-o'-the-wisp through metaphysical quagmires amidst the delusive +mists of a lawless imagination, there was an obvious fascination in the +Bentham mode of thought. It must be added, too, that at this time J. S. +Mill, the inheritor of Bentham's influences, was at the height of his +great reputation. The young men who graduated in 1850 and the following +ten years found their philosophical teaching in Mill's 'Logic,' and only +a few daring heretics were beginning to pick holes in his system. +Fitzjames certainly became a disciple and before long an advocate of +these principles. + +I find one or two other indications of disturbing studies. He says in a +letter that Greg's 'Creed of Christendom' (published in 1851) was the +first book of the kind which he read without the sense that he was +trespassing on forbidden ground. He told me that he had once studied +Lardner's famous 'Credibility of the Gospel History,' to which Greg may +not improbably have sent him. The impression made upon him was (though +the phrase was used long afterwards) that Lardner's case 'had not a leg +to stand upon.' From the Benthamite point of view, the argument for +Christianity must be simply the historical evidence. Paley, for whom +Fitzjames had always a great respect, put the argument most skilfully in +this shape. But if the facts are insufficient to a lawyer's eye, what is +to happen? For reasons which will partly appear, Fitzjames did not at +present draw the conclusions which to many seem obvious. It took him, in +fact, years to develope distinctly new conclusions. But from this time +his philosophical position was substantially that of Bentham, Mill, and +the empiricists, while the superstructure of belief was a modified +evangelicism. + +My father's liberality of sentiment and the sceptical tendencies which +lay, in spite of himself, in his intellectual tendencies, had indeed +removed a good deal of the true evangelical dogmatism. Fitzjames for a +time, as I have intimated, seems to have sought for a guide in Maurice. +He had been attracted when at King's College by Maurice's personal +qualities, and when, in 1853, Maurice had to leave King's College on +account of his views about eternal punishment, Fitzjames took a leading +part in getting up a testimonial from the old pupils of his teacher. +When he became a law student he naturally frequented Maurice's sermons +at Lincoln's Inn. Nothing could be more impressive than the manner of +the preacher. His voice often trembled with emotion, and he spoke as +one who had a solemn message of vast importance to mankind. But what was +the message which could reach a hard-headed young 'lawyer by nature' +with a turn for Benthamism? Fitzjames gives a kind of general form of +Maurice's sermons. First would come an account of some dogma as +understood by the vulgar. Tom Paine could not put it more pithily or +expressively. Then his hearers were invited to look at the plain words +of Scripture. Do they not mean this or that, he would ask, which is +quite different to what they had been made to mean? My answer would have +been, says Fitzjames, that his questions were 'mere confused hints,' +which required all kinds of answers, but mostly the answer 'No, not at +all.' Then, however, came Maurice's own answers to them. About this time +his hearer used to become drowsy, with 'an indistinct consciousness of a +pathetic quavering set of entreaties to believe what, when it was +intelligible, was quite unsatisfactory.' Long afterwards he says +somewhere that it was 'like watching the struggles of a drowning creed.' +Fitzjames, however, fancied for a time that he was more or less of a +Mauricean. + +From one of his friends, the Rev. J. Llewelyn Davies, I have some +characteristic recollections of the time. Mr. Davies was a college +friend, and remembers his combativeness and his real underlying warmth +of feeling. He remembers how, in 1848, Fitzjames was confident that the +'haves' could beat the 'have nots,' 'set his teeth' and exclaimed, 'Let +them come on.' Mr. Davies was now engaged in clerical work at the +East-end of London. My brother took pleasure in visiting his friend +there, learnt something of the ways of the district, and gave a lecture +to a Limehouse audience. He attended a coffee-house discussion upon the +existence of God, and exposed the inconclusiveness of the atheistic +conclusions. On another occasion he went with 'Tom,' now Judge Hughes, +to support Mr. Davies, who addressed a crowd in Leman Street one Sunday +night. Hughes endeavoured to suppress a boy who was disposed for +mischief. The boy threw himself on the ground, with Hughes holding him +down. Fitzjames, raising a huge stick, plunged into the thick of the +crowd. No one, however, stood forth as a champion of disorder; and Mr. +Davies, guarded by his stalwart supporters, was able to speak to a quiet +audience. Fitzjames, says Mr. Davies, was always ready for an argument +in those days. He did not seek for a mere dialectical triumph; but he +was resolved to let no assumption pass unchallenged, and, above all, to +disperse sentiment and to insist upon what was actual and practical. He +wrote to Mr. Davies in reference to some newspaper controversies: 'As to +playing single-stick without being ever hit myself, I have no sort of +taste for it; the harder you hit the better. I always hit my hardest.' +'Some people profess,' he once said to the same friend, 'that the sermon +on the Mount is the only part of Christianity which they can accept. It +is to me the hardest part to accept.' In fact, he did not often turn the +second cheek. He said in the same vein that he should prefer the whole +of the Church service to be made 'colder and less personal, and to +revive the days of Paley and Sydney Smith.' (The Church of the +eighteenth century, only without the disturbing influence of Wesley, +was, as he once remarked long afterwards, his ideal.) 'After quoting +these words,' says Mr. Davies in conclusion, 'I may be permitted to add +those with which he closed the note written to me before he went to +India (November 4, 1869), "God bless you. It's not a mere phrase, nor +yet an unmeaning or insincere one in my mouth--affectionately yours."' + +I shall venture to quote in this connection a letter from my father, +which needs a word of preface. Among his experiments in journalism, +Fitzjames had taken to writing for the 'Christian Observer,' an ancient, +and, I imagine, at the time, an almost moribund representative of the +evangelical party. Henry Venn had suggested, it seems, that Fitzjames +might become editor. Fitzjames appears to have urged that his theology +was not of the desired type. He consulted my father, however, who +admitted the difficulty to be insuperable, but thought for a moment that +they might act together as editor and sub-editor. My father says in his +letters (August 4 and 8, 1854): 'I adhere with no qualifications of +which I am conscious to the theological views of my old Clapham friends. +You, I suppose, are an adherent of Mr. Maurice. To myself it appears +that he is nothing more than a great theological rhetorician, and that +his only definite and appreciable meaning is that of wedding the gospel +to some form of philosophy, if so to conceal its baldness. But Paul of +Tarsus many ages ago forbade the banns.' In a second letter he says that +there does not seem to be much real difference between Fitzjames's creed +and his own. 'It seems to me quite easy to have a theological theory +quite complete and systematic enough for use; and scarcely possible to +reach such a theory with any view to speculation--easy, I mean, and +scarcely possible for the unlearned class to which I belong. The learned +are, I trust and hope, far more fixed and comprehensive in their views +than they seem to me to be, but if I dared trust to my own observation I +should say that they are determined to erect into a science a series of +propositions which God has communicated to us as so many detached and, +to us, irreconcilable verities; the common link or connecting principle +of which He has not seen fit to communicate. I am profoundly convinced +of the consistency of all the declarations of Scripture; but I am as +profoundly convinced of my own incapacity to perceive that they are +consistent. I can receive them each in turn, and to some extent I can, +however feebly, draw nutriment from each of them. To blend them one with +another into an harmonious or congruous whole surpasses my skill, or +perhaps my diligence. But what then? I am here not to speculate but to +repent, to believe and to obey; and I find no difficulty whatever in +believing, each in turn, doctrines which yet seem to me incompatible +with each other. It is in this sense and to this extent that I adopt the +whole of the creed called evangelical. I adopt it as a regulator of the +affections, as a rule of life and as a quietus, not as a stimulant to +inquiry. So, I gather, do you, and if so, I at least have no right to +quarrel with you on that account. Only, if you and I are unscientific +Christians, let us be patient and reverent towards those whose deeper +minds or more profound inquiries, or more abundant spiritual experience, +may carry them through difficulties which surpass our strength.' + +My brother's reverence for his father probably prevented him from +criticising this letter as he would have criticised a similar utterance +from another teacher. He has, however, endorsed it--I cannot say whether +at the time--with a tolerably significant remark. 'This,' he says, 'is +in the nature of a surrebutter; only the parties, instead of being at +issue, are agreed. My opinion as to his opinions is that they are a sort +of humility which comes so very near to irony that I do not know how to +separate them. Fancy old Venn and Simeon having had more capacious minds +than Sir James (_credat Christianus_).' + +The 'Christian Observer' was at this time edited by J. W. Cunningham, +vicar of Harrow, who was trying to save it from extinction. He had been +educated at Mr. Jowett's, at Little Dunham and at Cambridge, and had +been a curate of John Venn, of Clapham. He belonged, therefore, by +right, to the evangelical party, and had been more or less known to my +father for many years. His children were specially intimate with my +aunt, Mrs. Batten, whose husband was a master at Harrow. Emelia Batten, +now Mrs. Russell Gurney, was a friend of Cunningham's children, and at +this time was living in London, and on very affectionate terms with +Fitzjames. He used to pour out to her his difficulties in the matter of +profession choosing. There were thus various links between the +Cunninghams and ourselves. Mr. Cunningham happened to call upon my +father at Norwich, in the summer of 1850. With him came his eldest +daughter by his second wife, Mary Richenda Cunningham, and there my +brother saw her for the first time. He met her again in company with +Miss Batten, on March 2, 1851, as he records, and thereupon fell in +love, 'though in a quiet way at first. This feeling has never been +disturbed in the slightest degree. It has widened, deepened, and +strengthened itself without intermission from that day to this' (January +3, 1887). + +The connection with the 'Christian Observer' was of value, not for the +few guineas earned, but as leading to occasional visits to Harrow. +Fitzjames says that he took great pains with his articles, and probably +improved his style, though 'kind old Mr. Cunningham' had to add a few +sentences to give them the proper tone. They got him some credit from +the small circle which they reached, but that was hardly his main +object. 'This period of my life closed by my being engaged on November +11, 1854, at Brighton, just eighteen years to the day after I went to +school there, and by my being married on April 19, 1855, at Harrow +church, where my father and mother were married forty years before.' The +marriage, he says, 'was a blessed revelation to me. It turned me from a +rather heavy, torpid youth into the happiest of men, and, for many +years, one of the most ardent and energetic. It was like the lines in +Tennyson-- + + A touch, a kiss, the charm was snapped + . . . . . . . + And all the long-pent stream of life + Dashed downward in a cataract. + +I am surprised to find that, when I look back to that happiest and most +blessed of days through the haze of upwards of thirty-two years, I do +not feel in the least degree disposed to be pathetic over the lapse of +life or the near approach of old age. I have found life sweet, bright, +glorious. I should dearly like to live again; but I am not afraid, and I +hope, when the time comes, I shall not be averse to die.' + +At this point the autobiographical fragment ceases. I am glad that it +has enabled me to use his own words in speaking of his marriage. No one, +I think, can doubt their sincerity, nor can anyone who was a witness of +his subsequent life think that they over-estimate the results to his +happiness. I need only add that the marriage had the incidental +advantage of providing him with a new brother and sister; for Henry (now +Sir Henry) Stewart Cunningham, and Emily Cunningham (now Lady Egerton), +were from this time as dear to him as if they had been connected by the +closest tie of blood relationship. + +FOOTNOTES: + +[Footnote 49: I have quoted a few phrases from it in the previous +chapter.] + +[Footnote 50: He says the 11th, and mentions more than once a date which +afterwards became interesting for another reason. The date given by my +mother at the time must be accepted; but this is the only error I have +found in my brother's statements--and it is not of profound importance.] + +[Footnote 51: I have to thank Mr. Arthur D. Coleridge, my brother's +schoolfellow and lifelong friend for a letter containing his +recollections of this period.] + +[Footnote 52: Macvey Napier correspondence.] + +[Footnote 53: My father was sworn of H. M. Privy Council October 30, +1847, and on April 15, 1848, appointed by her Majesty in Council Member +of the Committee of Privy Council for the consideration of all matters +relating to trade and foreign plantations (Sir James Stephen and Sir +Edward Ryan were the last two appointed under that form and title); made +K.C.B. April 27, 1848, and finally retired on pension May 3, 1848, +having been on sick leave since October 1847.] + +[Footnote 54: Kindly sent to me by Mr. Montague Butler, of Pembroke +College, Cambridge.] + +[Footnote 55: See an article by W. D. Christie in _Macmillan's Magazine_ +for November 1864.] + +[Footnote 56: Maine was born August 22, 1822, and therefore six years +and a half older than Fitzjames.] + +[Footnote 57: He was proposed by Maine on October 30, and elected +November 13, 1847.] + +[Footnote 58: _The Life of Julian Fane_, by his intimate friend Lord +Lytton, was published in 1871. It includes some account of the +'apostles.'] + +[Footnote 59: It refers, I suppose, to the son's failure to get into the +first class in the college examination at Christmas 1848.] + +[Footnote 60: Pearson died in 1894, after a career in England and +Australia much troubled by ill health. His book upon _National +Character_, published in 1803, first made his remarkable abilities +generally known, though he had written very ably upon history.] + +[Footnote 61: Born November 2, 1826, d. February 9, 1883. See the memoir +by C. H. Pearson prefixed to the collection of Smith's _Mathematical +Papers_ (1894).] + +[Footnote 62: I guess Dumont's 'Principles.'] + + + + +CHAPTER III + +_THE BAR AND JOURNALISM_ + +I. INTRODUCTORY + + +I have traced at some length the early development of my brother's mind +and character. Henceforward I shall have to describe rather the +manifestation than the modification of his qualities. He had reached +full maturity, although he had still much to learn in the art of turning +his abilities to account. His 'indolence' and 'self-indulgence,' if they +had ever existed, had disappeared completely and for ever. His life +henceforward was of the most strenuous. He had become a strong +man--strong with that peculiar combination of mental and moral force +which reveals itself in masculine common sense. His friends not +unfrequently compared him to Dr. Johnson, and, much as the two men +differed in some ways, there was a real ground for the comparison. +Fitzjames might be called pre-eminently a 'moralist,' in the +old-fashioned sense in which that term is applied to Johnson. He was +profoundly interested, that is, in the great problems of life and +conduct. His views were, in this sense at least, original--that they +were the fruit of his own experience, and of independent reflection. +Most of us are so much the product of our surroundings that we accept +without a question the ordinary formulæ which we yet hold so lightly +that the principles which nominally govern serve only to excuse our +spontaneous instincts. The stronger nature comes into collision with +the world, disputes even the most current commonplaces, and so becomes +conscious of its own idiosyncrasies, and accepts only what is actually +forced upon it by stress of facts and hard logic. The process gives to +the doctrines which, with others, represent nothing but phrases, +something of the freshness and vividness of personal discoveries. +Probably ninety-nine men in a hundred assume without conscious +inconsistency the validity both of the moral code propounded in the +Sermon on the Mount, and of the code which regulates the actual struggle +for life. They profess to be at once gentlemen and Christians, and when +the two codes come into conflict, take the one which happens to sanction +their wishes. They do not even observe that there is any conflict. +Fitzjames could not take things so lightly. Even in his infancy he had +argued the first principles of ethics, and worked out his conclusions by +conflicts with schoolboy bullies. It is intelligible, therefore, that, +as Mr. Davies reports, the Sermon on the Mount should be his great +difficulty in accepting Christianity. Its spirit might be, in a sense, +beautiful; but it would not fit the facts of life. So, he observes, in +his autobiographical fragment, that one of his difficulties was his want +of sympathy for the kind of personal enthusiasm with which his father +would speak of Jesus Christ. He tried hard to cultivate the same +feelings, but could not do so with perfect sincerity. + +A man with such distinct and vivid convictions in the place of mere +conventional formulæ was naturally minded to utter them. He was +constantly provoked by the popular acceptance of what appeared to him +shallow and insincere theories, and desired to expose the prevailing +errors. But the 'little preacher' of three years old had discovered at +one and twenty that the pulpit of the ordinary kind was not congenial +to him. His force of mind did not facilitate a quick and instinctive +appreciation of other people's sentiments. When he came into contact +with a man whose impressions of the world were opposed to his own, he +was inclined to abandon even the attempt to account for the phenomenon. +A man incapable of seeing things in the proper light was hardly worth +considering at all. Fitzjames was therefore not sympathetic in the sense +of having an imagination ready to place him at other men's point of +view. In another sense his sympathies were exceedingly powerful. No man +had stronger or more lasting affections. Once attached to a man, he +believed in him with extraordinary tenacity and would defend him +uncompromisingly through thick and thin. If, like Johnson, he was a +little too contemptuous of the sufferings of the over-sensitive, and put +them down to mere affectation or feeblemindedness, he could sympathise +most strongly with any of the serious sorrows and anxieties of those +whom he loved, and was easily roused to stern indignation where he saw +sorrow caused by injustice. I shall mention here one instance, to which, +for obvious reasons, I can only refer obscurely; though it occupied him +at intervals during many years. Shortly after being called to the bar he +had agreed to take the place of a friend as trustee for a lady, to whom +he was then personally unknown. A year or two later he discovered that +she and her husband were the objects of a strange persecution from a man +in a respectable position who conceived himself to have a certain hold +over them. Fitzjames's first action was to write a letter to the +persecutor expressing in the most forcible English the opinion that the +gentleman's proper position was not among the respectable but at one of +her Majesty's penal settlements. His opinion was carefully justified by +a legal statement of the facts upon which it rested, and the effect was +like the discharge of the broadside of an old ship of the line upon a +hostile frigate. The persecutor was silenced at once and for life. +Fitzjames, meanwhile, found that the money affairs of the pair whose +champion he had become were deeply embarrassed. He took measures, which +were ultimately successful, for extricating them from their +difficulties; and until the lady's death, which took place only a year +or two before his own, was her unwearied counsellor and protector in +many subsequent difficulties. Though I can give no details, I may add +that he was repaid by the warm gratitude of the persons concerned, and +certainly never grudged the thought and labour which he had bestowed +upon the case. + +Fitzjames having made up his mind that he was a 'lawyer by nature,' had +become a lawyer by profession. Yet the circumstances of his career, as +well as his own disposition, prevented him from being absorbed in +professional duties. For the fifteen years which succeeded his call to +the bar he was in fact following two professions; he was at once a +barrister and a very active journalist. This causes some difficulty to +his biographer. My account of his literary career will have to occupy +the foreground, partly because the literary story bears most directly +and clearly the impress of his character, and partly because, as will be +seen, it was more continuous. I must, however, warn my readers against a +possible illusion of perspective. To Fitzjames himself the legal career +always represented the substantive, and the literary career the +adjective. Circumstances made journalism highly convenient, but his +literary ambition was always to be auxiliary to his legal ambition. It +would, of course, have been injurious to his prospects at the bar had it +been supposed that the case was inverted; and as a matter of fact his +eyes were always turned to the summit of that long hill of difficulty +which has to be painfully climbed by every barrister not helped by +special interest or good fortune. This much must be clearly understood, +but I must also notice two qualifications. In the first place, though he +became a journalist for convenience, he was in some sense too a +journalist by nature. He found, that is, in the press a channel for a +great many of the reflections which were constantly filling his mind and +demanding some outlet. He wrote for money, and without the least +affectation of indifference to money; but the occupation enabled him +also to gratify a spontaneous and powerful impulse. And, in the next +place, professional success at the bar was in his mind always itself +connected with certain literary projects. Almost from the first he was +revolving schemes for a great book, or rather for a variety of books. +The precise scheme changed from time to time; but the subject of these +books is always to be somewhere in the province which is more or less +common to law and ethics. Sometimes he is inclined to the more purely +technical side, but always with some reference to the moral basis of +law; and sometimes he leans more to philosophical and theological +problems, but always with some reference to his professional experience +and to legal applications. So, for example, he expresses a desire (in a +letter written, alas! after the power of executing such schemes had +disappeared) to write upon the theory of evidence; but he points out +that the same principles which underlie the English laws of evidence are +also applicable to innumerable questions belonging to religious, +philosophical, and scientific inquiries. Now the position of a judge or +an eminent lawyer appeared to him from the first to be desirable for +other reasons indeed, but also for the reason that it would enable him +to gain experience and to speak with authority. At moments he had +thoughts of abandoning law for literature; although the thoughts +disappeared as soon as his professional prospects became brighter. His +ideal was always such a position as would enable him to make an +impression upon the opinions of his countrymen in that region where +legal and ethical speculation are both at home. + + +II. FIRST YEARS AT THE BAR + +I will begin by some general remarks upon his legal career, which will +thus be understood as underlying his literary career. Fitzjames was +called to the bar of the Inner Temple on January 26, 1854. He had his +first brief soon afterwards at the Central Criminal Court, where +twenty-five years later he also made his first appearance as a judge. In +the same year he joined the Midland Circuit. He had no legal connections +upon that or any other circuit. His choice was determined by the advice +of Kenneth Macaulay, then leader of the Midland Circuit. He afterwards +referred to this as one of the few cases in which good advice had really +been of some use. In a letter written in July 1855 he observes that the +Midland is the nearest approach to the old circuits as they were before +the days of railways. It was so far from London that the barristers had +to go their rounds regularly between the different towns instead of +coming down for the day. He describes the party who were thus brought +together twice a year, gossiping and arguing all day, with plenty of +squabbling and of 'rough joking and noisy high spirits' among the idler, +that is, much the larger part. He admits that the routine is rather +wearisome: the same judgments and speeches seem to repeat themselves +'like dreams in a fever,' and 'droves of wretched over-driven heavy +people come up from the prison into a kind of churchwardens' pew,' when +the same story is repeated over and over again. And yet he is +profoundly interested. Matters turn up which 'seem to me infinitely more +interesting than the most interesting play or novel,' and you get +strange glimpses of the ways of thinking and living among classes +otherwise unknown to you. These criminal courts, he says in another +letter, are a 'never-ending source of interest and picturesqueness for +me. The little kind of meat-safe door through which the prisoners are +called up, and the attendant demon of a gaoler who summons them up from +the vasty deep and sends them back again to the vasty deep for terms of +from one week to six years, have a sort of mysterious attraction.' + +Mr. Franklin Lushington, who was my brother's contemporary on the +circuit and ever afterwards an intimate friend, has kindly given me his +impressions of this period. It would have been difficult, he says, to +find a circuit 'on which the first steps of the path that opens on +general eminence in the profession were slower to climb than on the +Midland.' It was a small circuit, 'attended by some seventy or eighty +barristers and divided into two or three independent and incompatible +sets of Quarter Sessions, among which after a year or so of tentative +experience it was necessary to choose one set and stand by it. Fitzjames +and I both chose the round of the Lincolnshire, Nottinghamshire, and +Derbyshire sessions; which involved a good deal of travelling and +knocking about in some out-of-the-way country districts, where the +sessions bar is necessarily thrown into circumstances of great intimacy. +Even when a sessions or assize reputation was gained, it was and +remained intensely local. The intricate points relative to settlements +and poor-law administration, which had provided numerous appeals to the +higher courts in a previous generation, had dwindled gradually to +nothing. Even the most remarkable success, slowly and painfully won in +one county, might easily fail to produce an effect in the next, or to +give any occasion for passing through the thickset hedge which parts +provincial from metropolitan notoriety. The most popular and admired +advocate in the Lincolnshire courts for many years was our dear friend +F. Flowers, afterwards a police magistrate, one of the wittiest, most +ingenious, and most eloquent of the bar. Though year after year he held +every Lincolnshire jury in the hollow of his hand, and frequently rose +to a strain of powerful and passionate oratory which carried away +himself and his hearers--not Lincolnshire folk only--in irresistible +sympathy with his cause, Flowers remained to his last day on circuit +utterly unknown and untried in the adjacent shires of Derby and +Nottingham.' + +A circuit bar, adds Mr. Lushington, 'may be roughly divided into three +classes: those who are determined to make themselves heard; those who +wish to be heard if God calls; and those who without objecting to be +heard wish to have their pastime whether they are heard or not. +Fitzjames was in the first category, and from the first did his utmost +to succeed, always in the most legitimate way.' No attorney, looking at +the rows of wigs in the back benches, could fail to recognise in him a +man who would give his whole mind to the task before him. 'It was +natural to him to look the industrious apprentice that he really was; +always craving for work of all kinds and ready at a moment's notice to +turn from one task to another. I used to notice him at one moment busy +writing an article in complete abstraction and at the next devouring at +full speed the contents of a brief just put into his hand, and ready +directly to argue the case as if it had been in his hand all day.' + +Fitzjames not long afterwards expressed his own judgment of the society +of which he had become a member. The English bar, he says,[63] 'is +exactly like a great public school, the boys of which have grown older +and have exchanged boyish for manly objects. There is just the same +rough familiarity, the same general ardour of character, the same kind +of unwritten code of morals and manners, the same kind of public opinion +expressed in exactly the same blunt, unmistakable manner.' It would +astonish outsiders if they could hear the remarks sometimes addressed by +the British barrister to his learned brother--especially on circuit. The +bar, he concludes, 'are a robust, hard-headed, and rather hard-handed +set of men, with an imperious, audacious, combative turn of mind,' +sometimes, though rarely, capable of becoming eloquent. Their learning +is 'multifarious, ill-digested and ill-arranged, but collected with +wonderful patience and labour, with a close exactness and severity of +logic, unequalled anywhere else, and with a most sagacious adaptation to +the practical business of life.' + +Fitzjames's position in this bigger public school had at any rate one +advantage over his old Etonian days. There was no general prejudice +against him to be encountered; and in the intellectual 'rough and +tumble' which replaced the old school contests his force of mind was +respected by everyone and very warmly appreciated by a chosen few. Among +his closest intimates were Mr. Lushington and his old schoolfellow Mr. +Arthur Coleridge, who became Clerk of Assize upon the circuit. At +starting he had also the society of his friend Grant Duff. They walked +together in the summer of 1855, and visited the Trappist Monastery in +Charnwood Forest. There they talked to a shaven monk in his 'dreary +white flannel dress,' bound with a black strap. They moralised as they +returned, and Fitzjames thought on the whole that his own life was +wholesomer than the monastic. He hopes, however, that the monk and his +companions may 'come right,' as 'no doubt they will if they are honest +and true.' 'I suppose one may say that God is in convents and churches +as well as in law courts or chambers--though not to my eyes so +palpably.' + +Sir M. Grant Duff left the circuit after a year or two; but Fitzjames +found a few other congenial companions with whom he could occasionally +walk and often argue to his heart's content. Among his best friends was +Kenneth Macaulay, who became a leader on the circuit, and who did his +best to introduce Fitzjames to practice. Mr. Arthur Coleridge, too, was +able to suggest to the judges that Fitzjames should be appointed to +defend prisoners not provided with counsel. This led by degrees to his +becoming well known in the Crown Court, although civil business was slow +in presenting itself. Several of the judges took early notice of him. In +1856 he has some intercourse with Lord Campbell, then Chief Justice, and +with Chief Baron Pollock, both of them friends of his father. He was +'overpowered with admiration' at Campbell's appearance. Campbell was +'thickset as a navvy, as hard as nails,' still full of vigour at the age +of seventy-six, about the best judge on the bench now, and looking fit +for ten or twelve years' more of work.[64] Pollock was a fine lively old +man, thin as a threadpaper, straight as a ramrod, and full of +indomitable vivacity. The judges, however, who formed the highest +opinion of him and gave him the most encouragement were Lord Bramwell +and Willes. + +In 1856 he observes that he was about to take a walk with Alfred Wills +of the 'High Alps.' This was the present Mr. Justice Wills; who has +also been kind enough to give me some recollections which are to the +purpose in this place. Wills was called to the bar in 1851 and joined +the Midland Circuit, but attended a different set of quarter sessions. +He saw a good deal of Fitzjames, however, at the assizes; and though not +especially intimate, they always maintained very friendly relations. The +impression made upon Wills in these early years was that Fitzjames was a +solitary and rather unsocial person. He was divided from his fellows, as +he had been divided from his companions at school and college, by his +absorption in the speculations which interested him so profoundly. 'He +was much more learned, much better read, and had a much more massive +mind than most of us, and our ways and talks must have seemed petty and +trivial to him.' Though there were 'some well-read men and good scholars +among us, even they had little taste for the ponderous reading in which +Fitzjames delighted.' Wills remembers his bringing Hobbes' 'Leviathan' +with him, and recreating himself with studying it after his day's work. +To such studies I shall have to refer presently, and I will only say, +parenthetically, that if Mr. Justice Wills would read Hobbes, he would +find, though he tells me that he dislikes metaphysics, that the old +philosopher is not half so repulsive as he looks. Still, a constant +absorption in these solid works no doubt gave to his associates the +impression that Fitzjames lived in a different world from theirs. He +generally took his walks by himself, Coleridge being the most frequent +interrupter of his solitude. He would be met pounding along steadily, +carrying, often twirling, a 'very big stick,' which now and then came +down with a blow--upon the knuckles, I take it, of some imaginary +blockhead on the other side--muttering to himself, 'immersed in thought +and with a fierce expression of concentrated study.' He did not often +come to mess, and when he did found some things of which he did not +approve. Barristers, it appears, are still capable of indulging in such +tastes as were once gratified by the game of 'High Jinks,' celebrated in +'Guy Mannering.' The Circuit Court was the scene of a good deal of +buffoonery. It was customary to appoint a 'crier'; and Fitzjames, 'to +his infinite disgust, was elected on account of his powerful voice. He +stood it once or twice, but at last broke out in a real fury, and +declared he would never come to the Circuit Court again, calling it by +very strong names. If he had been a less powerful man I am sure that +there would have been a fight; but no one cared to tackle that stalwart +frame, and I am not sure that the assailant would have come out of the +fray alive if he had.' The crisis of this warfare appears to have +happened in 1864, when Yorkshire was added to the Midland Circuit, and +an infusion of barristers from the Northern Circuit consequently took +place. It seems that the manners and customs of the northerners were +decidedly less civilised than those of their brethren. A hard fight had +to be fought before they could be raised to the desired level. In 1867 I +find that Fitzjames proposed the abolition of the Circuit Court. He was +defeated by twenty votes to fifteen; and marvels at the queer bit of +conservatism cropping up in an unexpected place. In spite of these +encounters, Fitzjames not only formed some very warm friendships on +circuit, but enjoyed many of the social meetings, and often recurred to +them in later years. He only despised tomfoolery more emphatically than +his neighbours. Nobody, indeed, could be a more inconvenient presence +where breaches of decency or good manners were to be apprehended. I +vividly remember an occasion upon which he was one of a little party of +young men on a walking tour. A letter read out by one of them had the +phrase, 'What a pity about Mrs. A.!' Someone suggested a conjectural +explanation not favourable to Mrs. A.'s character. He immediately came +in for a stern denunciation from Fitzjames which reduced us all to +awestruck silence, and, I hope, gave the speaker an unforgetable lesson +as to the duty of not speaking lightly in matters affecting female +reputation. He collapsed; and I do not recollect that he ventured any +comment upon a letter of the next morning which proved his conjecture to +be correct. The principle was the same. + +These characteristics, as I gather both from Mr. Justice Wills and from +Mr. Lushington, caused Fitzjames to be the object rather of respect than +of general popularity. His friends could not fail to recognise the depth +of his real kindness of heart. Mr. Justice Wills refers to one little +incident of which my brother often spoke. Fitzjames visited him at the +'Eagle's Nest,' in 1862, and there found him engaged in nursing Auguste +Balmat, the famous guide, who was dying of typhoid fever. The natives +were alarmed, and the whole labour of nursing fell upon Mr. and Mrs. +Wills. Fitzjames, on his arrival, relieved them so far as he could, and +enabled them to get some nights' sleep. I remember his description of +himself, sitting up by the dying man, with a volume of 'Pickwick' and a +vessel of holy water, and primed with some pious sentences to be +repeated if the last agony should come on. It was a piece of grim +tragedy with a touch of the grotesque which impressed him greatly. 'I +never knew anyone,' says Mr. Justice Wills, 'to whom I should have gone, +if I wanted help, with more certainty of getting it.' When Fitzjames was +on the bench, he adds, and he had been himself disappointed of reaching +the same position under annoying circumstances, he had to appear in a +patent case before his friend. Fitzjames came down to look at a model, +and Wills said, 'Your Lordship will see,' &c. 'He got hold of the hand +next his own, gave me a squeeze which I did not forget in a hurry, and +whispered, "If you ever call me 'my lordship' again, I shall say +something!"' That hand-grip, indeed, as Wills remarks, was eminently +characteristic. It was like the squeeze of a vice, and often conveyed +the intimation of a feeling which shrank from verbal expression. + +It is plain enough that a man of such character would not find some +difficulties smoothed for him. He could not easily learn the lesson of +'suffering fools gladly.' He formed pretty strong views about a man and +could express them frankly. The kind of person whom Carlyle called a +windbag, and to whom he applied equally vigorous epithets, was +especially obnoxious to him, however dexterous might be such a man's +manipulation of difficult arguments. His talent, too, scarcely lent +itself to the art of indirect intimations of his opinions. He remarks +himself, in one of his letters, that he is about as clever at giving +hints as the elder Osborne in 'Vanity Fair'; of whom Thackeray says that +he would give what he called a 'hint' to a footman to leave his service +by kicking the man downstairs. And, therefore, I suspect that when +Fitzjames considered someone--even a possible client--to be a fool or a +humbug, his views might be less concealed than prudence would have +dictated. 'When once he had an opportunity of showing his capacities,' +says Mr. Lushington, 'the most critical solicitor could not fail to be +satisfied of his vigour and perseverance; his quick comprehension of, +and his close attention to detail; and his gift in speaking of clear +common-sense and forcible expression, free from wearisome redundancy or +the suggestion of an irony that might strike above the heads of the +jury. He gained the confidence of clients of all sorts--some of curious, +impulsive, and not over-strict character, who might, perhaps, have +landed a weaker or less rigidly high-principled advocate in serious +blunders; and I do not think that he ever lost a client whom he had once +gained.' But the first step was not easy. His solitary ways, his +indifference to the lighter pursuits of his companions, and his frequent +absorption in other studies, made him slow to form connections and +prevented him from acquiring early, if he ever fully acquired, the +practical instinct which qualifies a man for the ordinary walk of law +courts. When, says Mr. Justice Wills, 'he got you by yourself in a +corner--with no opportunity of dancing round him--in a single combat of +stroke for stroke, real business, conditions defined and mastered, he +was a most formidable antagonist, mercilessly logical, severely +powerful, with the hand of a giant.' But he was, says the same critic, +rather too logical for the common tricks of the trade, which are learnt +by a long and persistent handling of ordinary business. He did not +understand what would 'go down,' and what was of 'such a character that +people would drive a coach and six through precedents and everything +else in order to get rid of it.' He was irritated by an appeal to +practical consequences from what he considered to be established +principles. Then, too, his massive intellect made him wanting in +pliability. 'He could not change front in presence of the enemy'; and +rather despised the adaptations by which clever lawyers succeed in +introducing new law under a pretence of applying old precedents. As I +have already said, he was disgusted with the mere technicalities of the +law, and the conversion of what ought to be a logical apparatus for the +discovery of truth into an artificial system of elaborate and +superfluous formalities. His great ambition was (in his favourite +expression) to 'boil down' the law into a few broad common-sense +principles. He was, therefore, not well qualified for some branches of +legal practice, and inclined to regard skill of the technical kind with +suspicion, if not with actual dislike. Upon this, however, I shall have +to dwell hereafter. + +Meanwhile, he was deeply interested in the criminal cases, which were +constantly presenting ethical problems, and affording strange glimpses +into the dark side of human nature. Such crimes showed the crude, brutal +passions, which lie beneath the decent surface of modern society, and +are fascinating to the student of human nature. He often speaks of the +strangely romantic interest of the incidents brought to light in the +'State Trials'; and in these early days he studied some of the famous +cases, such as those of Palmer and Dove, with a professional as well as +a literary interest. In later life he avoided such stories; but at this +period he occasionally made a text of them for newspaper articles, and +was, perhaps, tempted to adopt theories of the case too rapidly. This +was thought to be the case in regard to one Bacon, who was tried in +Lincoln in the summer of 1857. The case was one to which Fitzjames +certainly attached great importance, and I will briefly mention it +before passing to his literary career. + +Bacon and his wife were tried at London in the spring of 1857 for the +murder of their two young children. It was sufficiently proved upon that +occasion that Mrs. Bacon (who had already been in a madhouse) committed +the crime in a fit of insanity. Bacon, however, had endeavoured to +manufacture some evidence in order to give countenance to a theory that +the murder had been committed by housebreakers during his absence. He +thus incurred suspicion, and was placed upon trial with his wife. It +also came out that he had been tried (and acquitted) a year before for +setting fire to his own house, and reasons appeared for suspecting him +of an attempt to poison his mother at Stamford three years previously. +Upon these facts Fitzjames wrote an article in the 'Saturday +Review.'[65] He declared that the crime was as interesting, except for +the want of dignity of the actors, as the events which gave the plot of +some of the tragedies of Æschylus. It reminded him, too, of the terrible +story of 'Jane Eyre.' For we had to suppose either that Bacon suffered +by his marriage to a mad woman who had poisoned his mother, burnt his +house, and cut his children's throats; or else that the wife's last +outbreak had been the incidental cause of the discovery of his own +previous crimes. In the last case we had an instance of that +'retributive vengeance' which, though it cannot be 'reduced to a very +logical form, speaks in tones of thunder to the imaginations of +mankind.' + +The case came, as it happened, to the Midland Circuit. Bacon was tried +in Lincoln on July 25 for poisoning his mother. Fitzjames writes from +the court, where he is waiting in the hope that he may be asked by the +judge to defend the prisoner. While he writes, the request comes +accordingly, and he feels that if he is successful he may make the first +step to fortune. He was never cooler or calmer, he says, in his life, +and has always, 'in a way of his own,' 'truly and earnestly trusted in +God to help him in all the affairs of life.' He made his speech, and +suggested the theory already noticed, that the poisoning might have been +the act of the mad wife. The judge paid him a high compliment, but +summed up for a conviction, which accordingly followed. Fitzjames +himself thought, though he was not 'quite sure,' that the man was +guilty. He commented upon the case in another article in the 'Saturday +Review,' not, of course, to dispute the verdict, but to draw a +characteristic inference. Is it not, he asks, very hard upon a poor +prisoner that he should have no better means of obtaining counsel than +the request of the judge at the last moment to some junior barrister? +They manage these things, he thinks, better in France; though 'we have +no reason to speak with disrespect of the gentleman who conducted the +case.' + +Whatever may have been thought of Fitzjames's judgment in this case, he +gradually, as I have said, came to be regularly employed upon similar +occasions. By slow degrees, too, more profitable briefs came to him; but +he was in the trying position of appearing on a good many occasions +which excited much interest, while more regular work still declined to +present itself in corresponding proportions. Now and then a puff of wind +filled his sails for the moment, but wearying calms followed, and the +steady gale which propels to fortune and to the highest professional +advancement would not set in with the desired regularity. + + +III. THE 'SATURDAY REVIEW.' + +Here therefore I leave the story of his main profession to take up his +work in other capacities. When he left Cambridge, the 'Morning +Chronicle' was passing through a short phase of unprofitable brilliancy. +It had been bought by the 'Peelites,' who are reported to have sunk as +much as 200,000_l._ upon it. John Douglas Cook was editor, and among his +contributors were Maine and others of Fitzjames's college friends. +Naturally he was anxious to try his hand. He wrote several articles in +the winter of 1851-2. 'The pay,' says Fitzjames, 'was very high--3_l._ +10_s._ an article, and I thought that I was going to make a fortune. I +was particularly pleased, I remember, with my smartness and wit, but, +alas and alas! Cook found me out and gradually ceased to put in my +articles. I have seldom felt much keener disappointment, for I was +ardently desirous of standing on my own legs and having in my pocket a +little money of my own earning. I took heart, however, and decided to +try elsewhere. I wrote one or two poor little articles in obscure +places, and at last took (as already stated) to the "Christian +Observer." 'I took great pains,' he says, 'with my articles, framing my +style upon conveyancing and special pleading, so that it might be solid, +well-connected, and logical, and enable me to get back to the Paradise +of 3_l._ 10_s._ an article, from which, as I strongly suspected, my +flippancy had excluded me.' 'Flippancy' was clearly not in his line. +Besides the 'Christian Observer,' I find that the 'Law Magazine' took a +few articles from him, but there is no trace of other writings until +1855. In that year was published the first number of 'Cambridge Essays,' +which, in alliance with a series of 'Oxford Essays,' lived for a couple +of years and contained some very good work. Maine became first known to +the public by an article upon Roman Law contributed in 1856, and a study +of Coleridge's philosophy by Professor Hort, another apostle, is one of +the best extant discussions of a difficult subject. Fitzjames, in 1855, +wrote a characteristic article upon 'The Relation of Novels to Life,' +and in 1857 one upon 'Characteristics of English Criminal Law.' The +articles roused some interest and helped to encourage him. + +Meanwhile the 'Morning Chronicle' had changed hands, and its previous +supporters set up the 'Saturday Review,' of which the first number +appeared on November 3, 1855. John Douglas Cook, who took command of +the new adventure and brought some followers from the 'Morning +Chronicle,' was a remarkable man in his way. He was one of the +innumerable young Scots who go out to seek their fortune abroad. He had +received some appointment in India, quarrelled with his employers, and +came home on foot, or partly on foot, for his narratives of this period +were generally, it was thought, marked rather by imaginative fervour +than by a servile adherence to historic accuracy. He found work on the +'Times,' supported Mr. Walter in an election, was taken up by the Duke +of Newcastle, and was sent by him to inquire into the revenues of the +Duchy of Cornwall. He then appeared as an editor, and, if he failed in +the 'Morning Chronicle,' made ample amends by his guidance of the +'Saturday Review.' He was a man of no particular education, and +apparently never read a book. His language and manners were such as +recalled memories of the old days of Maginn and other Bohemians whose +portraits are drawn in 'Pendennis.' But besides other qualities which +justified the friendship and confidence of his supporters, Cook had the +faculty of recognising good writing when he saw it. Newspapers have +occasionally succeeded by lowering instead of raising the standard of +journalism, but the 'Saturday Review' marked at the time as distinct an +advance above the previous level as the old 'Edinburgh Review.' In his +fifteen years' editorship of the 'Saturday Review,' Cook collected as +distinguished a set of contributors as has ever been attracted to an +English newspaper. Many of them became eminent in other ways. Maine and +Sir W. Harcourt were, I believe, among the earliest recruits, following +Cook from the 'Morning Chronicle.' Others, such as Professor Freeman, +Mark Pattison, Mr. Goldwin Smith, Mr. John Morley, the late Lord Justice +Bowen, and many other well-known writers, joined at different periods +and with more or less regularity, but from the first the new journal was +wanting neither in ability nor audacity.[66] Two of the chief +contributors who became close friends of Fitzjames's enjoyed a +reputation among their friends altogether out of proportion to their +public recognition. The first was George Stovin Venables. He was a +fellow of Jesus College, Cambridge. He had been a first-classman in the +Classical Tripos of 1832, when he was placed next to W. H. Thompson, +afterwards Master of Trinity. He too was an apostle and an intimate both +of Tennyson and Thackeray. Indeed, the legend ran that it was his fist +which, at Charterhouse School, had disfigured Thackeray's nose for life. +He was tall, strikingly handsome, and of singularly dignified +appearance. Though recognised as an intellectual equal by many of the +ablest men of his time, he chose paths in which little general +reputation could be won. He made a large income at the parliamentary +bar, and amused himself by contributing regularly to the 'Saturday +Review.'[67] Stories used to be current of the extraordinary facility +with which he could turn out his work, and I imagine that the style of +the new periodical was determined more by his writing than by that of +any of his colleagues. The political utterances were supposed to be +supercilious, and were certainly not marked by any fiery enthusiasm. +Venables had an objection to the usual editorial 'we,' and one result +was that the theories of the paper were laid down with a certain +impersonal pomp, as gnomic utterances of an anonymous philosopher. I +need not, however, discuss their merit. Venables wrote, if I am not +mistaken, some admirable literary criticisms, and claimed to have been +one of the first to recognise the poetical merits of his friend +Tennyson, and, after a long interval, those of Mr. Swinburne, whom he +regarded as the next legitimate heir to the throne. Venables was warmly +beloved by his intimates, and Fitzjames through life frequently declared +that he felt for him a kind of filial affection. + +The other Saturday reviewer with whom he became specially intimate was +Thomas Collett Sandars. He was a Balliol scholar and a Fellow of Oriel, +and is known as an editor (1853) of Justinian's 'Institutes.' It is, I +am told, a useful textbook, but the editor makes no special pretensions +to original research. Sandars was at one time a professor of +Constitutional Law in the Inns of Court, but he was much occupied in +various financial undertakings and did little to make himself known to +the outside world. He was a man, however, of great literary taste, and +overflowing with humorous and delightful conversation. He survived my +brother by a few months only, and in the interval spoke to me with great +interest of his memories of the old 'Saturday Review' days. He was in +early days on most intimate terms with Fitzjames; they discussed all +manner of topics together and were for some time the two principal +manufacturers of what were called 'middles'--the articles which +intervened between the political leaders and the reviews of books. These +became gradually one of the most characteristic facts of the paper, and, +as I shall presently explain, gave an opportunity of which Fitzjames was +particularly glad to avail himself. + +The first contribution from Fitzjames appeared in the second number of +the paper. For a short time its successors are comparatively rare, but +in the course of the following spring he begins to contribute regularly +two articles a week, and before long there are sufficient indications +that the editor looks upon him with favour. Articles running to a length +of four columns, for example, show that he was not only pouring himself +out pretty freely, but that his claims upon space were not grudgingly +treated. In March 1856 he says that he is 'very nervous' about his +articles and doubtful of Cook's approval, but in the same month he is +greatly cheered by a conversation upon the subject with Maine, and +begins to perceive that he has really got a permanent footing. He used +to tell a story which I cannot perfectly recollect, but which was to the +following effect. He had felt very doubtful of his own performances; +Cook did not seem at first to be cordial, and possibly his attempts to +'form a style' upon the precedents of conveyancing were not altogether +successful. Feeling that he did not quite understand what was the style +which would win approval, he resolved that, for once, he would at least +write according to his own taste and give vent to his spontaneous +impulses, even though it might be for the last time of asking. To his +surprise, Cook was delighted with his article, and henceforward he was +able to write freely, without hampering himself by the attempt to +satisfy uncongenial canons of journalism.[68] + +However this may be, he was certainly writing both abundantly and +vigorously during the following years. The 'Saturday Review,' like the +old 'Edinburgh,' was proud beyond all things of its independence. It +professed a special antipathy to popular humbugs of every kind, and was +by no means backward in falling foul of all its contemporaries for their +various concessions to popular foibles. + +The writers were for the most part energetic young men, with the proper +confidence in their own infallibility, and represented faithfully enough +the main current of the cultivated thought of their day. The paper had +occasionally to reflect the High Church proclivities of its proprietor, +but the articles showing that tendency were in odd contrast to the +general line of argument, which more naturally expressed the contempt of +the enlightened for every popular nostrum. Fitzjames, in particular, +found occasions for energetically setting forth his own views. He had, +of course, a good many chances of dealing with legal matters. He writes +periodical articles upon 'the assizes' or discusses some specially +interesting case. He now and then gets a chance of advocating a +codification of the laws, though he admits the necessity of various +preliminary measures, and especially of a more philosophical system of +legal education. He denounces the cumbrous and perplexed state of the +law in general so energetically, that the arguments have to be stated as +those of certain reformers with whom the paper does not openly identify +itself. + +As became a good Saturday reviewer, he fell foul of many popular idols. +One regular chopping-block for irreverent reviewers was Dr. Cumming, who +was then proving from the Apocalypse that the world would come to an end +in 1865. His ignorance of Greek and of geography, his audacious +plagiarisms from E. B. Elliott (a more learned though not a much wiser +interpreter), and his insincerity, are denounced so unsparingly as to +suggest some danger from the law of libel. Dr. Cumming, however, was +wise in his generation, and wrote a letter of such courteous and +dignified remonstrance that the 'Saturday Review' was forced to reply in +corresponding terms, though declining to withdraw its charges. The whole +world of contemporary journalism is arraigned for its subserviency to +popular prejudices. The 'Record' is lashed for its religious rancour, +and the 'Reasoner' for its vapid version of popular infidelity, though +it is contemptuously preferred, in point of spirit, to the 'Record.' +Fitzjames flies occasionally at higher game. The 'Times,' if he is to be +believed, is conspicuous for the trick of spinning empty verbiage out of +vapid popular commonplaces, and, indeed, good sense and right reason +appear to have withdrawn themselves almost exclusively to the congenial +refuge of the 'Saturday Review.' + +There is, however, no shrine sacred to the vulgar in which the writer +delights in playing the part of iconoclast so heartily as in that +represented by the comic literature of the day. This sentiment, as I +have said, had grown up even in Eton schooldays. There was something +inexpressibly repugnant to Fitzjames in the tone adopted by a school of +which he took Dickens and Douglas Jerrold to be representatives. His +view of the general literary question comes out oddly in the article +upon 'The Relation of Novels to Life,' contributed to the 'Cambridge +Essays.' He has no fear of modern æsthetes before his eyes. His opinion +is that life is too serious a business for tomfoolery and far too tragic +for needless ostentation of sentiment. A novel should be a serious +attempt by a grave observer to draw a faithful portrait of the actual +facts of life. A novelist, therefore, who uses the imaginary facts, like +Sterne and Dickens, as mere pegs on which to hang specimens of his own +sensibility and facetiousness, becomes disgusting. When, he remarks, you +have said of a friend 'he is dead,' all other observations become +superfluous and impertinent. He, therefore, considers 'Robinson Crusoe' +to represent the ideal novel. It is the life of a brave man meeting +danger and sorrow with unflinching courage, and never bringing his tears +to market. Dickens somewhere says, characteristically, that 'Robinson +Crusoe' is the only very popular work which can be read without a tear +from the first page to the last. That is precisely the quality which +commends it to this stern reader, who thought that in fiction as in life +a man should keep his feelings under lock and key. In spite of his +rather peculiar canons of taste, Fitzjames was profoundly interested, +even in spite of himself, in some novels constructed on very different +principles. In these early articles he falls foul of 'Mdme. de +Bovary,'[69] from the point of view of the simple-minded moralist, but +he heartily admires Balzac, whom he defends against a similar charge, +and in whose records of imaginary criminals--records not so famous in +England at that time as they now are--he found an interest almost equal +to that of the 'State Trials' and Palmer's case. He could also, I must +add, enjoy Dickens's humour as heartily as any one. He was well up in +'Pickwick,' though I don't know whether he would have been equal to +Calverley's famous examination-paper, and he had a special liking for +the 'Uncommercial Traveller.' But when Dickens deserted his proper +function Fitzjames was roused to indignation. The 'little Nell' +sentimentalism and the long gallery of melodramatic deathbeds disgusted +him, while the assaults upon the governing classes generally stirred his +wrath. The satire upon individuals may be all very well in its place, +but a man, he said, has no business to set up as the 'regenerator of +society' because he is its most 'distinguished buffoon.' He was not +picking his words, and 'buffoon' is certainly an injudicious phrase; but +the sentiment which it expressed was so characteristic and deeply rooted +that I must dwell a little upon its manifestation at this time. + +The war between the Saturday reviewers and their antagonists was carried +on with a frequent use of the nicknames 'prig' and 'cynic' upon one +side, and 'buffoon' and 'sentimentalist' upon the other. Phrases so +employed soon lose all definite meaning, but it is, I think, easy to see +what they meant as applied either by or to Fitzjames. The 'comic +writers' for him were exponents of the petty and vulgar ideals of the +lower middle classes of the day. The world of Dickens's novels was a +portrait of the class for which Dickens wrote. It was a world of smug +little tradesmen of shallow and half-educated minds, with paltry +ambitions, utter ignorance of history and philosophy, shrinking +instinctively from all strenuous thought and resenting every attack upon +the placid optimism in which it delighted to wrap itself. It had no +perception of the doubts and difficulties which beset loftier minds, or +any consciousness of the great drama of history in which our generation +is only playing its part for the passing hour. Whatever lay beyond its +narrow horizon was ignored, or, if accidentally mentioned, treated with +ignorant contempt. This was the spirit which revealed itself in the +pæans raised over the Exhibition of 1851, accepted by the popular voice +of the day as the inauguration of a millennium of peace and free trade. +But all its manifestations were marked by the same narrowness. The class +had once found a voice for its religious sentiments in Puritanism, with +stern conceptions of duty and of a divine order of the universe. But in +its present mood it could see the Puritan leaders represented by a +wretched Stiggins--a pothouse Tartufe just capable of imposing upon the +friends of Mrs. Gamp. Its own religion was that kind of vapid +philanthropic sentiment which calls itself undenominational; a creed of +maudlin benevolence from which all the deeper and sterner elements of +religious belief have been carefully purged away, and which really +corresponds to the moods which Mr Pickwick stimulated by indulgence in +milk-punch. When it came face to face with death, and sin, and +suffering, it made them mere occasions for displays of sentimentalism, +disgusting because such trifling with the most awful subjects shows a +hopeless shallowness of nature. Dickens's indulgence in deathbeds meant +an effeminate delight in the 'luxury of grief,' revolting in proportion +to the solemnity of the topic. This was only another side of the levity +with which he treated serious political and social problems. The +attitude of mind represented is that of the ordinary newspaper +correspondent, who imagines that a letter to the 'Times' is the ultimate +remedy for all the evils to which flesh is heir. Dickens's early novels, +said Fitzjames, represented an avatar of 'chaff'; and gave with +unsurpassable vivacity the genuine fun of a thoroughbred cockney +typified by Sam Weller. Sam Weller is delightful in his place; but he is +simply impertinent when he fancies that his shrewd mother wit entitles +him to speak with authority upon great questions of constitutional +reform and national policy. Dickens's later assaults upon the +'Circumlocution Office,' the Court of Chancery, were signal instances of +this impatient, irritable, and effeminate levity. Fitzjames elaborated +this view in an article upon 'the license of novelists' which appeared +in the 'Edinburgh Review' for July 1857. He fell foul of 'Little +Dorrit'; but the chief part of the article referred to Charles Reade's +'Never Too Late to Mend.' That novel was briefly a travesty of a recent +case in which a prisoner had committed suicide in consequence, as was +suggested, of ill-treatment by the authorities of the gaol. The governor +had been tried and punished in consequence. Fitzjames gives the actual +facts to show how Reade had allowed himself, as a writer of fiction, to +exaggerate and distort them, and had at the same time taken the airs of +an historian of facts and bragged of his resolution to brand all judges +who should dare to follow the precedent which he denounced. This +article, I may notice, included an injudicious reference to the case of +the Post Office and Rowland Hill, which was not, I believe, due to +Fitzjames himself, and which enabled Dickens to reply with some effect +in 'Household Words.' Dickens's attacks upon the 'Circumlocution Office' +and its like were not altogether inconsistent with some opinions upon +the English system of government to which, as I shall have to show, +Fitzjames himself gave forcible expression in after years. They started, +however, from a very different point of view, and for the present he +criticised both Dickens and some of the similar denunciations contained +in Carlyle's 'Past and Present,' and 'Latter-day Pamphlets.' The assault +upon the 'Circumlocution Office' was, I doubt not, especially offensive +because 'Barnacle Tite,' and the effete aristocrats who are satirised in +'Little Dorrit,' stood for representatives of Sir James Stephen and his +best friends. In fact, I think, Dickens took the view natural to the +popular mind, which always embodies a grievance in a concrete image of a +wicked and contemptible oppressor intending all the evils which result +from his office. A more interesting and appropriate topic for art of a +serious kind would be the problem presented by a body of men of the +highest ability and integrity who are yet doomed to work a cumbrous and +inadequate system. But the popular reformer, to whom everything seems +easy and obvious, explains all abuses by attributing them to the +deliberate intention of particular fools and knaves. This indicates +Fitzjames's position at the time. He was fully conscious of the +administrative abuses assailed, and was as ardent on law reform as +became a disciple of Bentham. But he could not accept the support of men +who thought that judicious reform could be suggested by rough +caricatures, and that all difficulties could be appreciated by the +first petty tradesmen who encountered an incidental grievance or by such +summary remedies as were to be suggested off-hand by anonymous +correspondents. The levity, the ignorance, the hasty and superficial +irritability of these reformers, their enormous conceit and +imperturbable self-complacency revolted him. English life he declared in +the 'Edinburgh Review' is 'too active, English spheres of action too +wide, English freedom too deeply rooted, to be endangered by a set of +bacchanals drunk with green tea and not protected by petticoats. +Boundless luxury,' he thought, 'and thirst for excitement, have raised a +set of writers who show a strong sympathy for all that is most opposite +to the very foundations of English life.' The 'Saturday Review' articles +enlarge upon the same theme. He will not accept legislators whose +favourite costume is the cap and bells, or admit that men who 'can make +silly women cry can, therefore, dictate principles of law and +government.' The defects of our system are due to profound historical +causes. 'Freedom and law and established rules have their difficulties,' +not perceptible to 'feminine, irritable, noisy minds, always clamouring +and shrieking for protection and guidance.' The end to which Dickens +would really drive us would be 'pure despotism. No debates to worry +effeminate understandings, no laws to prevent judges from deciding +according to their own inclination, no forms to prevent officials from +dealing with their neighbours as so many parcels of ticketed goods.'[70] + +These utterances show the combination of the old Puritanic leaven, to +which all trifling and levity is hateful, and the strong patriotic +sentiment, to which Dickens in one direction and the politics of Cobden +and Bright in the other, appeared as different manifestations of a +paltry and narrow indifference to all the great historic aims of the +national life. Now, and to some degree always, he strongly sympathised +with the patriotism represented by Macaulay. + +I need only notice at present certain theological implications. The +positivists were beginning to make themselves known, and, for various +reasons, were anything but attractive to him. He denounces a manifesto +from Mr. Congreve in January 1857, and again from the patriotic side. +Mr. Congreve had suggested, among other things, the cession of Gibraltar +to Spain, in accordance with his view of international duties. The +English nation, exclaims Fitzjames, 'cannot be weighed and measured, and +ticketed, and classified, by a narrow understanding and a cold heart.' +The 'honest and noble passions of a single nation would blow all Mr. +Congreve's schemes to atoms like so many cobwebs. England will never be +argued out of Gibraltar except by the _ultima ratio_.' These doctrines, +he thinks, are the fruits of abandoning a belief in theology. 'We, too, +have a positive philosophy, and its fundamental maxim is that it is wise +for men and nations to mind their own business, and do their own duty, +and leave the results to God.' The argument seems to be rather +questionable; and perhaps one which follows is not altogether +satisfactory, though both are characteristic. The Indian Mutiny had +moved him deeply, and, in an article called 'Deus Ultionum'[71] he +applies one of his doctrines to this case. He holds that a desire for +revenge upon the perpetrators of the atrocities (of which, I may +observe, exaggerated accounts were then accepted) was perfectly +legitimate. Revenge, he urges, is an essential part of the true theory +of punishment--a position which he defends by the authority of Bishop +Butler. The only alternative is the theory of simple 'deterrence,' +which, as he holds, excludes every moral element of punishment, and +supposes man to be a mere 'bag of appetites.' + +I have dwelt upon these utterances, not, of course, to consider their +value, or as representing his permanent conviction, but simply as +illustrating a very deeply rooted sentiment. + +His work in the 'Saturday Review' did not exhaust all his literary +activity. Between 1856 and 1861 he contributed a few articles to the +'Edinburgh Review,' of which I have already mentioned one. He very +naturally turned to the organ in which his father's best-known writings +had appeared, and which still enjoyed a high reputation. I believe that +the 'Edinburgh Review' still acted upon the precedent set by Jeffrey, +according to which a contributor, especially, of course, a young +contributor, was regarded as supplying raw material which might be +rather arbitrarily altered by the editor. I express no opinion as to the +wisdom of that course; but I think that, as a matter of fact, it +alienated this contributor in particular. Meanwhile, the father in whose +steps he was treading was constantly giving him advice or taking counsel +with him during these years. He praised warmly, but with discrimination. +The first article in the 'Edinburgh Review' was upon Cavallier, the +leader of the Protestant revolt in the Cevennes. The subject, suggested, +I fancy, by a trip to the country taken in 1852, was selected less with +a view to his own knowledge or aptitudes than by the natural impulse of +a young writer to follow the models accepted in his organ. He had +selected a picturesque bit of history, capable of treatment after the +manner of Macaulay. 'I have read it,' says my father, in words meant to +be read to Fitzjames, 'with the pleasure which it always gives me to +read his vigorous sense, clear and manly style, right-minded and +substantially kind-hearted writings. My respect for his understanding +has been for a long time steadily increasing, and is very unlikely to be +ever diminished.... But I shall best prove that respect by saying +plainly that I do not like this paper as well as those in which he +writes argumentatively, speculatively, and from the resources of his own +mind. His power consists in reasoning, in the exposition of truth and +fallacies. I will not say, for I do not know, that he wants the art of +story-telling, but, taking this as a specimen, it seems to me deficient +in the great art of linking together a series of facts in such a manner +that the connection between them shall be at once perceptible to the +most ignorant and inattentive reader, and shall take easy and +irresistible possession of the mind. That is Macaulay's pre-eminent +gift.' He goes on to apply this in detail. It may be useful to point out +faults now; though his criticisms upon anything which Fitzjames may +publish in 1890 shall be 'all saccharine.' + +In a letter of April 27, 1856, he shows an alarm which was certainly not +unnatural. Fitzjames has been writing in the 'Saturday Review,' in +'Fraser,' the 'National Review,' and elsewhere, besides having on hand a +projected law-book. Is he not undertaking too much? 'No variety of +intemperance is more evidently doomed to work out its own ill-reward +than that which is practised by a bookseller's drudge of the higher +order.' He appeals to various precedents, such as Southey, whose brain +gave way under the pressure. Editors and publishers soon find out the +man who is dependent upon them for support, and 'since the abolition of +West India slavery the world has known no more severe servitude than +his.' 'Can a man of your age,' he asks, 'have the accumulated capital +of knowledge necessary to stand such a periodical expenditure?' 'What I +have read of your writing seems to me to be singularly unequal. At times +it is excellent in style and in conception, and evidently flowing from +springs pure, copious, and active, and giving promise of great future +eminence. At other times the marks of haste, of exhaustion, and being +run out of breath, are perceptible to an eye so sensitive as mine is on +this subject. I see no reason why you should not become a great writer +and one of the teachers of your country-folk, if you will resolve never +to write except from a full mind--which is just as essential to literary +success as it is to success in singing never to sing but out of well +inflated lungs.' He ends by the practical application of an entreaty to +make use of the family purse. + +The reference to a law-book is explained by a correspondence which is +going on at the same period in regard to various literary proposals. My +father sketches several plans; he disapproves of a technical treatise, +in which he thinks that Fitzjames would be at a disadvantage from the +inevitable comparison with his uncle, the serjeant; but he advises some +kind of legal history, resembling Hallam's history inverted. In the +proposed book the legal aspect should be in the foreground and the +political in the background. He expounds at length a scheme which has +not been executed, and which would, I think, be exceedingly valuable. It +was suggested by his own lectures on French history, though it must be +'six times longer and sixty times more exact and complete.' It is to be +a history of the English administrative system from feudal times +downwards, giving an account of the development of the machinery for +justice, revenue, ecclesiastical affairs, war, trade, colonies, police, +and so forth. Each chapter should expound the actual state of things, +and trace the historical development of one department, and would +involve a variety of parenthetical inquiries, which should be carefully +subordinated to the main purpose. Various hints are given as to the +course of investigation that will be necessary. Fitzjames began to work +upon this scheme; and his opening chapters fill two or three large +manuscript books. The plan was abandoned for one more suitable to his +powers. Meanwhile, the literary activity which had alarmed his father +was not abated, and, indeed, before very long, was increased. + + +IV. EDUCATION COMMISSION AND RECORDERSHIP + +Another employment for a time gave him work, outside both of his +professional and his literary career, though it remained something of a +parenthesis. On June 30, 1858, a royal commission was appointed to +investigate the state of popular education. The Duke of Newcastle was +chairman and the other members were Sir J. T. Coleridge, W. C. Lake +(afterwards Dean of Durham), Professor Goldwin Smith, Nassau Senior, +Edward Miall, and the Rev. William Rogers, now rector of St. Botolph, +Bishopsgate.[72] The Duke of Newcastle was, as I have said, the patron +of the editor of the 'Saturday Review,' and perhaps had some interest in +that adventure as in the 'Morning Chronicle.' He probably knew of my +brother through this connection, and he now proposed him, says Mr. +Rogers,[73] as secretary to the commission. The commission began by +sending out assistant-commissioners to the selected districts: it +afterwards examined a number of experts in educational matters; it sent +Mark Pattison and Matthew Arnold to report upon the systems in Germany, +France, and Switzerland; it examined all the previous reports presented +to the Committee of the Privy Council; it collected a quantity of +information from the various societies, from the managers of government, +naval and military schools, from schools for paupers and vagrants, and +from reformatories; it made an investigation into the state of the +charitable endowments, and it compiled a number of statistical tables +setting forth the results obtained. 'The man to whom more than to anyone +else the country owed a debt of gratitude,' says Mr. Rogers, 'was +Fitzjames Stephen.... Though under thirty, he brought to the task a +combination of talents rarely found in any one individual. To his keen +insight, wide grasp, accurately balanced judgment, and marvellous +aptitude for details, was due much of the success with which we were +able to lay down the future lines of popular education. I have often +thought it strange that this recognition has not in time past been more +publicly made.' + +The Commission lasted till June 30, 1861. It published six fat volumes +of reports, which are of great value to the historian of education. The +progress made in subsequent years gives an appearance of backwardness to +what was really a great advance upon previous opinion. The plan of +compulsory or free education was summarily dismissed; and a minority of +the Commission were of opinion that all State aid should be gradually +withdrawn. The majority, however, decided that the system rather +required development, although the aim was rather to stimulate voluntary +effort than to substitute a State system. They thought that the actual +number of children at school was not unsatisfactory, and that the desire +for education was very widely spread. Many of the schools, however, were +all but worthless, and the great aim should be to improve their quality +and secure a satisfactory teaching of elementary subjects. They +proposed that provision should be made for allowing the formation of +boards supported by rates in towns and counties; and that the national +grant should be distributed on better principles, so as to secure more +efficient results. As Mr. Rogers points out, the 'revised code' soon +afterwards issued by Mr. Lowe, and the principles adopted in Mr. +Forster's Act a few years later, carried out, though they greatly +extended, the proposals of the Commission. + +It is impossible to say precisely what share my brother had in these +results. I find, however, from a correspondence with his old friend +Nassau Senior, that he was an advocate of the view finally adopted by +the Commission. He also prepared the report, of course under the +direction of his superiors, and the labour thrown upon him during the +three years of this occupation must have been considerable. He was, +however, writing with his old regularity for the 'Saturday Review,' and +was attending sessions and circuits with slowly improving prospects. In +a letter written at this time I find him remarking that he is at work +all the day and half the night. This is in reference to a case with +which he was much occupied during 1858-9, and which is characteristic +enough to deserve a few words. His articles in the 'Saturday Review' +show the keen interest to which he was aroused by any touch of heroism. +He is enthusiastic about arctic adventure, and a warm review of Kane's +narrative of the American expedition in search of Franklin brought him +the friendship of the author, who died during a visit to England soon +afterwards. Another arctic explorer was Captain Parker Snow, who sailed +in the search expedition sent out by Lady Franklin in 1850. The place in +which the remains were afterwards discovered had been revealed to him in +a dream; and but for the refusal of his superior officer to proceed he +would have reached the spot. In the year 1854 Captain Snow was sent out +by the Patagonian Missionary Society to the place where the unfortunate +Allen Gardiner had been starved to death. His crew consisted entirely of +'godly' sailors, who, he says, showed their principles by finding +religious reasons for disobeying his orders. Finally Captain Snow was +dismissed by an agent of the Society, and, as he maintained, illegally. +He published an account of his explorations in Tierra del Fuego, which +Fitzjames reviewed enthusiastically. It was long, he said, since he had +seen a 'heartier, more genuine, nobler book'; he was tempted to think +that Captain Marryat and Kingsley had 'put their heads together to +produce a sort of missionary "Peter Simple."' This led to a long +correspondence with Captain Snow, who was trying to enforce his claims +against the Missionary Society. Fitzjames strongly advised him against +legal proceedings, which would, he thought, be fruitless, although +Captain Snow had a strong moral claim upon the Society. Captain Snow, +however, was not easy to advise, and Fitzjames, thinking him +ill-treated, obtained help from several friends and subscribed himself +to the Captain's support. After long negotiations the case finally came +into court in December 1859, when Fitzjames consented to appear as the +Captain's counsel, although he had foreseen the unsuccessful result. He +continued to do what he could for the sufferer, to whose honourable, +though injudicious conduct he bears a strong testimony, and long +afterwards (1879) obtained for him a pension of 40_l._ from the Civil +List, which is, I fear, Captain Snow's only support in his old age.[74] + +In August 1859 Fitzjames was made recorder of Newark. The place, which +he held till he went to India in 1869, was worth only 40_l._ a year; but +was, as he said, a 'feather in his cap,' and a proof of his having +gained a certain footing upon his circuit. It gave him his first +experience as a judge, and I may mention a little incident of one of his +earliest appearances in that character. He had to sentence a criminal to +penal servitude, when the man's wife began to scream; he was touched by +her grief, and left a small sum with the mayor to be given to her +without mention of his name. The place was, it seems, practically the +gift of the Duke of Newcastle; and Bethell, then Attorney-General, wrote +to him in favour of Fitzjames's appointment. I am not aware how Bethell +came to have any knowledge of him; but Fitzjames had formed a very high +opinion of the great lawyer's merits. He showed it when Bethell, then +Lord Westbury, was accused of misconduct as Lord Chancellor. He thought +that the accusations, if not entirely unfounded, were grossly +exaggerated for party purposes. He could not persuade the 'Pall Mall +Gazette,' for which he was then writing, to take this view; but upon +Westbury's resignation he obtained the insertion of a very cordial +eulogy upon the ex-chancellor's merits as a law reformer. + +The appointment to the recordership was one of the last pieces of +intelligence to give pleasure to my father. Fitzjames had seen much of +him during the last year. He had spent some weeks with him at Dorking in +the summer of 1858, and had taken a little expedition with him in the +spring of 1859. My father injured himself by a walk on his seventieth +birthday (January 3, 1859), and his health afterwards showed symptoms of +decline. In the autumn he was advised to go to Homburg; and thence, on +August 30, he wrote his last letter, criticising a draft of a report +which Fitzjames was preparing for the Education Commission, and +suggesting a few sentences which would, he thinks, give greater +clearness and emphasis to the main points. Immediately afterwards +serious symptoms appeared, due, I believe, to the old break-down of +1847. My father was anxious to return, and started homewards with my +mother and sister, who had accompanied him. They got as far as Coblenz, +where they were joined by Fitzjames, who had set out upon hearing the +news. He was just in time to see his father alive. Sir James Stephen +died September 14, 1859, an hour or two after his son's arrival. He was +buried at Kensal Green, where his tombstone bears the inscription: 'Be +strong and of a good courage; be not afraid, neither be thou dismayed: +for the Lord thy God is with thee whithersoever thou goest.' The words +(from Joshua i. 9) were chosen because a friend remembered the emphasis +with which my father had once dwelt upon them at his family prayers. +With the opening words of the same passage my brother concluded the book +which expressed his strongest convictions,[75] and summed up his +practical doctrine of life. What he felt at the time may be inferred +from a striking essay upon the 'Wealth of Nature,' which he contributed +to the 'Saturday Review' of September 24, 1859.[76] It may be considered +as a sermon upon the text of Gray's reflections in the 'Elegy' upon the +'hearts once pregnant with celestial fire' which lie forgotten in the +country churchyard. What a vast work has been done by the unknown! what +must have been the aggregate ability of those who, in less than thirty +generations, have changed the England of King Alfred into the England of +Queen Victoria! and yet how few are remembered! How many actions even, +which would be gladly remembered, are constantly forgotten? 'The Indian +Empire,' he says characteristically, 'is the most marvellous proof of +this that the world can supply. A man died not long ago who, at +twenty-five years of age, with no previous training, was set to govern a +kingdom with absolute power, and who did govern it so wisely and firmly +that he literally changed a wilderness into a fruitful land. Probably no +one who reads these lines will guess to whom they allude.' I can, +however, say that they allude to James Grant Duff (1789-1858), author of +the 'History of the Mahrattas,' and father of his friend Sir +Mountstuart. Fitzjames had visited the father in Scotland, and greatly +admired him. His early career as resident of Sattara sufficiently +corresponds to this statement. It is well, as Fitzjames maintained, that +things should be as they are. Fame generally injures a man's simplicity; +and this 'great reserve fund of ability' acts beneficially upon society +at large, and upon the few conspicuous men who are conscious of their +debt to their unknown colleagues. It would be a misfortune, therefore, +if society affected to class people according to their merits; for, as +it is, no one need be ashamed of an obscurity which proves nothing +against him. We have the satisfaction of perceiving everywhere traces of +skill and power, proving irrefragably that there are among us men 'who +ennoble nearly every walk of life, and would have ennobled any.' A +similar tone appears in the short life of his father, written in the +following year. True success in life, he says, is not measured by +general reputation. Sir James Stephen's family will be satisfied by +establishing the fact that he did his duty. It was an instance of +'prosperity' that his obscurity 'protected him, and will no doubt +effectually protect his memory against unjust censure and ignorant +praise.' + +The deaths of two old friends of his father's and his own marked the +end of the year. On December 20, 1859, he hears of the death of John +Austin, and proposes to attend the funeral, 'as there were few men for +whom I had more respect or who deserved it more.' His admiration for +Austin was at this time at its warmest.[77] Macaulay died on December +28, 1859; and on January 5, 1860, Fitzjames writes from Derby, where he +has been all night composing a 'laudation' of the historian for the +'Saturday Review.'[78] It is 7.45 A.M., and he has just washed and +dressed, as it is too late to go to bed before court. 'Tom Macaulay,' as +has been seen, had been a model held up to him from infancy, and to the +last retained a strong hold upon his affectionate remembrance. + +Fitzjames was now completing his thirty-first year, and was emerging +into a more independent position. He was in the full flow of energetic +and various work, which was to continue with hardly an intermission +until strength began to fail. At this period he was employed in the +Education Commission, which for some time was meeting every day; he was +writing for the 'Saturday Review' and elsewhere; he was also beginning +to write an independent book; and he was attending his circuit and +sessions regularly and gradually improving his position.[79] The story +thus becomes rather complicated. I will first say a little of his +professional work during the next few years, and I will then mention +three books, which appeared from 1861 to 1863, and were his first +independent publications; they will suggest what has to be said of his +main lines of thought and work. + + +V. PROGRESS AT THE BAR + +His practice at the bar was improving, though not very steadily or +rapidly. 'Those cases, like Snow's or Bacon's,' he observes (Dec. 17, +1859), 'do me hardly any good.... I am making a reputation which would +be very useful for an older man who already had business, but is to me +glory, not gain. I am like a man who has good expectations and little or +no income.' Still his position is better: he has made 100_l._ this year +against 50_l._ the year before; he is beginning to 'take root,' +especially at sessions; and he 'thoroughly delights in his profession.' +In March 1860 he reports some high compliments from Mr. Justice Willes +in consequence of a good speech; and has had inquiries made about him by +attornies. But the attornies, he thinks, will have forgotten him before +next circuit. There never was a longer hill than that which barristers +have to climb; but 'it is neither a steep nor an unpleasant hill.' In +July 1861 he was appointed to a revising barristership in North +Derbyshire by Chief Baron Pollock, and was presented with a red bag by +his friend Kenneth Macaulay, now leader of the circuit. He makes 100_l._ +on circuit, and remarks that this is considered to mark a kind of +turning-point. In 1862 things improve again. In July he is employed in +three cases of which two were 'glorious triumphs,' and the third, the +'Great Grimsby riot,' which is 'at present a desperate battle,' is the +biggest case he has yet had on circuit. The circuit turns out to be his +most profitable, so far. On October 20 he reports that he has got pretty +well 'to the top of the little hill' of sessions, and is beginning, +though cautiously, to think of giving them up and to look forward to a +silk gown. In 1863 he has 'a wonderful circuit' (March 20) above +200_l._, owing partly, it would seem, to Macaulay's absence, and too +good to be repeated. In the summer, however, he has the first circuit in +which there has been no improvement. On October 25 he is for once out of +spirits. He has had 'miserable luck,' though he thinks in his conscience +that it has been due not to his own fault, but to the 'stupidity of +juries.' 'There is only one thing,' he says, 'which supports me in this, +the belief that God orders all things, and that therefore we can be +content and ought to take events as they come, be they small or great. +Whenever I turn my thoughts that way it certainly does not seem to me +very important whether in this little bit of a life I can accomplish all +that I wish--so long as I try to do my best. I have often thought that +perhaps one's life may be but a sort of school, in which one learns +lessons for a better and larger world, and if so, I can quite understand +that the best boys do not get the highest prizes, and that no boy, good +or bad, ought to be unhappy about his prizes. There are things I long to +do; books I long to write; thoughts and schemes that float before me, +looking so near and clear, and yet being, as I feel, so indistinct or +distant that I shall never make anything of them. Small ties and little +rushings of the mind, briefs and magazine articles, and their like, will +clog my wheels day after day and year after year. Yet I cannot +altogether blame myself. Looking back on my life, I cannot seriously +regret any of the principal steps I have taken in it. Still I do feel +more or less disquieted or perturbed--I cannot help it.' Some +uncomfortable thoughts could hardly fail to intrude at times when the +compliments which he received from the highest authorities failed to be +backed by a corresponding recognition from attornies; and at times, I +suspect, his spirits were depressed by over-work, of which he was slow +to acknowledge the possibility. To work, indeed, he turned for one +chief consolation. He refers incidentally to various significant +performances. 'Last night,' he writes from Derby, April 10, 1862, 'I +finished a middle at two; and to-day I finished "Superstition"' (an +article in the 'Cornhill') 'in a six hours' sitting, during which I had +written thirty-two MS. pages straight off. I don't feel at all the worse +for it.' On Nov. 14 following he observes that he is 'in first-rate +health.' He wrote all night from six till three, got up at 7.30, and +walked thirty-one miles; after which he felt 'perfectly fresh and well.' +On Jan. 13, 1863, he has a long drive in steady rain, sits up 'laughing +and talking' till one; writes a review till 4.45, and next day writes +another article in court. On July 17, 1864, he finishes an article upon +Newman at 3 A.M., having written as much as would fill sixteen pages of +the 'Edinburgh Review'--the longest day's work he had ever done, and +feels perfectly well. On March 13, 1865, he gets up at six, writes an +article before breakfast, is in court all day, and has a consultation at +nine. Early rising was, I think, his commonest plan for encountering a +pressure of work; but he had an extraordinary facility for setting to +work at a moment's notice. He had a power of eating and sleeping at any +time, which he found, as he says, highly convenient. He was equally +ready to write before breakfast, or while other people were talking and +speechifying all round him in court, or when sitting up all night. And, +like a strong man, he rejoiced in his strength, perhaps a little too +unreservedly. If he now and then confesses to weariness, it never seemed +to be more than a temporary feeling. + +Of the cases in which he was engaged at this period I need only mention +two--the case of Dr. Rowland Williams, of which I shall speak directly +in connection with his published 'defence'; and the case of a man who +was convicted of murder at Warwick in December 1863. The fellow had cut +the throat of a girl who had jilted him. The facts were indisputable, +and the only possible defence was insanity. Kenneth Macaulay and +Fitzjames were counsel for the defence, but failed, and, as Fitzjames +thought, rightly failed, to make good their case. He was, however, +deeply moved by the whole affair--the most dramatic, he says, in which +he had been engaged. The convict's family were respectable people, and +behaved admirably. 'The poor mother sat by me in court and said, "I feel +as if I could cling to anyone who could help him," and she put her hand +on my arm and held it so that I could feel every beat of her pulse. Her +fingers clutched me every time her heart beat. The daughters, too, were +dreadfully moved, but behaved with the greatest natural dignity and +calmness.' After the conviction Fitzjames felt that the man deserved to +be hanged; but felt also bound to help the father in his attempts to get +the sentence commuted. He could not himself petition, but he did his +best to advise the unfortunate parents. He used to relate that the +murderer had written an account of the crime, which it was proposed to +produce as a proof of insanity. To Fitzjames it seemed to be a proof +only of cold-blooded malignity which would insure the execution of the +sentence. He was tormented by the conflict between his compassion and +his sense of justice. Ultimately the murderer was reprieved on the +ground that he had gone mad after the sentence. Fitzjames had then, he +says, an uncomfortable feeling as if he were partly responsible for the +blood of the murdered girl. The criminal soon afterwards committed +suicide, and so finished the affair. + + +VI. 'ESSAYS BY A BARRISTER' + +I turn now to the literary work which filled every available interstice +of time. In the summer of 1862 Fitzjames published 'Essays by a +Barrister' (reprinted from the 'Saturday Review'). The essays had +appeared in that paper between the end of 1858 and the beginning of +1861. From February 9, 1861, to February 28, 1863, he did not write in +the 'Saturday Review.' A secession had taken place, the causes of which +I do not precisely know. I believe that the editor wished to put +restrictions, which some of his contributors, including Fitzjames, +resented, upon the services to be rendered by them to other periodicals. +The breach was eventually closed without leaving any ill-feeling behind +it. Fitzjames at first felt the relief of not having to write, and +resolved to devote himself more exclusively to his profession. But +before long he was as hard at work as ever. During 1862 he wrote a good +many articles for the 'London Review,' which was started as a rival of +the 'Saturday Review.' He found a more permanent outlet for his literary +energies in the 'Cornhill Magazine.' It was started by Messrs. Smith & +Elder at the beginning of 1860 with Thackeray for editor; and, together +with 'Macmillan's Magazine'--its senior by a month--marked a new +development of periodical literature. Fitzjames contributed a couple of +articles at the end of 1860; and during 1861, 1862, and 1863, wrote +eight or nine in a year. These articles (which were never reprinted) +continue the vein opened in the 'Essays by a Barrister.' His connection +with the 'Magazine' led to very friendly relations with Thackeray, to +whose daughters he afterwards came to hold the relation of an +affectionate brother. It also led to a connection with Mr. George +Smith, of Smith, Elder & Co., which was to be soon of much importance. + +The articles represented the development of the 'middles,' which he +considered to be the speciality of himself and his friend Sandars. The +middle, originally an article upon some not strictly political topic, +had grown in their hands into a kind of lay sermon. For such literature +the British public has shown a considerable avidity ever since the days +of Addison. In spite of occasional disavowals, it really loves a sermon, +and is glad to hear preachers who are not bound by the proprieties of +the religious pulpit. Some essayists, like Johnson, have been as solemn +as the true clerical performer, and some have diverged into the humorous +with Charles Lamb, or the cynical with Hazlitt. At this period the most +popular of the lay preachers was probably Sir Arthur Helps, who provided +the kind of material--genuine thought set forth with real literary skill +and combined with much popular sentiment--which served to convince his +readers that they were intelligent and amiable people. The 'Saturday +reviewers,' in their quality of 'cynics,' could not go so far in the +direction of the popular taste; and their bent was rather to expose than +to endorse some of the commonplaces which are dear to the intelligent +reader. Probably it was a sense of this peculiarity which made Fitzjames +remark when his book appeared that he would bet that it would never +reach a second edition. He would, I am sorry to say, have won his bet; +and yet I know that the 'Essays by a Barrister,' though never widely +circulated, have been highly valued by a small circle of readers. The +explanation of their fate is not, I think, hard to give. They have, I +think, really great merits. They contain more real thought than most +books of the kind; they are often very forcibly expressed; and they +unmistakably reflect very genuine and very strong convictions. +Unluckily, they maintain just the kind of views which the congregation +most easily gathered round such a pulpit is very much inclined to regard +with suspicion or with actual dislike. + +An essay, for example, upon 'doing good' is in fact a recast of the +paper which decided his choice of a profession. It is intended to show +that philanthropists of the Exeter Hall variety are apt to claim a +monopoly of 'doing good' which does not belong to them, and are inclined +to be conceited in consequence. The ordinary pursuits are equally +necessary and useful. The stockbroker and the publican are doing good in +the sense of being 'useful' as much as the most zealous 'clergyman or +sister of mercy.' Medicine does good, but the butcher and the baker are +still more necessary than the doctor. We could get on without schools or +hospitals, but not without the loom and the plough. The philanthropist, +therefore, must not despise the man who does a duty even more essential +than those generally called benevolent, though making less demand on the +'kindly and gentle parts of our nature.' A man should choose his post +according to his character. It is not a duty to have warm feelings, +though it may be a misfortune not to have them; and a 'cold, stern man' +who should try to warm up his feelings would either be cruelly mortified +or become an intolerable hypocrite. It is a gross injustice to such a +man, who does his duty in the station fittest to his powers, when he is +called by implication selfish and indifferent to the public good. 'The +injustice, however, is one which does little harm to those who suffer +under it, for they are a thick-skinned and long-enduring generation, +whose comfort is not much affected one way or the other by the opinion +of others.' + +This, like Fitzjames's other bits of self-portraiture, is not to be +accepted too literally. So taken, it confounds, I think, coldness and +harshness with a very different quality, a want of quick and versatile +sympathy, and 'thickness of skin' with the pride which would not admit, +even to itself, any tendency to over-sensibility. But it represents more +or less the tone which came naturally to him, and explains the want of +corresponding acceptability to his readers. He denounces the quality for +which 'geniality' had become the accepted nickname. The geniality, +whether of Dickens or Kingsley, was often, he thought, disgusting and +offensive. It gives a false view of life. 'Enjoyment forms a small and +unimportant element in the life of most men.' Life, he thinks, is +'satisfactory' but 'enjoyment casual and transitory.' 'Geniality,' +therefore, should be only an occasional element; habitually indulged and +artificially introduced, it becomes as nauseous as sweetmeats mixed with +bread and cheese. To the more serious person, much of the popular +literature of the day suggests Solomon's words: 'I said of laughter, it +is mad; and of mirth what doeth it?' So the talk of progress seems to +him to express the ideal of a moral 'lubberland.' Six thousand years of +trial and suffering, according to these prophets, are to result in a +'perpetual succession of comfortable shopkeepers.' The supposition is +'so revolting to the moral sense that it would be difficult to reconcile +it with any belief at all in a Divine Providence.' You are beginning, he +declares after Carlyle's account of Robespierre, 'to be a bore with your +nineteenth century.' Our life, he says elsewhere ('Christian Optimism'), +is like 'standing on a narrow strip of shore, waiting till the tide +which has washed away hundreds of millions of our fellows shall wash us +away also into a country of which there are no charts and from which +there is no return. What little we have reason to believe about that +unseen world is that it exists, that it contains extremes of good and +evil, awful and mysterious beyond human conception, and that these +tremendous possibilities are connected with our conduct here. It is +surely wiser and more manly to walk silently by the shore of that silent +sea, than to boast with puerile exultation over the little sand castles +which we have employed our short leisure in building up. Life can never +be matter of exultation, nor can the progress of arts and sciences ever +fill the heart of a man who has a heart to be filled.' The value of all +human labours is that of schoolboys' lessons, 'worth nothing at all +except as a task and a discipline.' Life and death are greater and older +than steam engines and cotton mills. 'Why mankind was created at all, +why we continue to exist, what has become of all that vast multitude +which has passed, with more or less sin and misery, through this +mysterious earth, and what will become of those vaster multitudes which +are treading and will tread the same wonderful path?--these are the +great insoluble problems which ought to be seldom mentioned but never +forgotten. Strange as it may appear to popular lecturers, they do make +it seem rather unimportant whether, on an average, there is a little +more or less good nature, a little more or less comfort, and a little +more or less knowledge in the world.' Such thoughts were indeed often +with him, though seldom uttered. The death of a commonplace barrister +about this time makes him remark in a letter that the sudden contact +with the end of one's journey is not unwelcome. The thought that the man +went straight from the George IV. Hotel to 'a world of ineffable +mysteries is one of the strangest that can be conceived.' + +I have quoted enough from the essays to indicate the most characteristic +vein of thought. They might have been more popular had he either +sympathised more fully with popular sentiment or given fuller and more +frequent expression to his antipathy. But, it is only at times that he +cares to lay bare his strongest convictions; and the ordinary reader +finds himself in company with a stern, proud man who obviously thinks +him foolish but scarcely worth denouncing for his folly. Sturdy common +sense combined with a proud reserve which only yields at rare intervals, +and then, as it were, under protest, to the expression of deeper +feeling, does not give the popular tone. Some of the 'Cornhill' articles +were well received, especially the first, upon 'Luxury' (September +1860), which is not, as such a title would now suggest, concerned with +socialism, but is another variation upon the theme of the pettiness of +modern ideals and the effeminate idolatry of the comfortable. + +These articles deal with many other topics: with the legal questions in +which he is always interested, such as 'the morality of advocacy' and +with the theory of evidence, with various popular commonplaces about +moral and social problems, with the 'spirit-rapping' then popular, with +various speculations about history, and with some of the books in which +he was always interested. One is the 'laudation' of Macaulay which I +have noticed, and he criticises Carlyle and speaks with warm respect of +Hallam. Here and there, too, are certain philosophical speculations, of +which I need only say that they show his thorough adherence to the +principles of Mill's 'Logic' He is always on the look-out for the +'intuitionist' or the believer in 'innate ideas,' the bugbears of the +Mill school. In an article upon Mansel's 'Metaphysics' he endeavours to +show that even the 'necessary truths' of mathematics are mere statements +of uniform experience, which may differ in another world. This argument +was adopted by Mill in his 'examination of Sir W. Hamilton's +philosophy.'[80] I cannot say that I think it a fortunate suggestion; +and I only notice it as an indication of Fitzjames's intellectual +position. + +The 'Cornhill' articles had to be written under the moral code proper to +a popular magazine, the first commandment of which is 'Thou shalt not +shock a young lady.' Fitzjames felt this rather uncomfortably, and he +was not altogether displeased, as he clearly had no right to be +surprised, when Mr. George Smith, the proprietor of the magazine, +suggested to him in December 1862 the superior merits of 'light and +amusing' articles, which, says Fitzjames, are 'just those which give me +most trouble and teach me least.' They are 'wretched' things to occupy a +man of 'any sort of mind.' Mr. Smith, as he says a year afterwards, is +the 'kindest and most liberal of masters,' but he feels the drudgery of +such work. Reading Bossuet (February 28, 1864), he observes that the +works are so 'powerful and magnificent in their way' that they make me +feel a sort of hatred for 'the trumpery that I pass my time in +manufacturing.' It makes him 'sad to read great books, and it is almost +equally sad not to read them.' He feels 'tied by the leg' and longs to +write something worth writing; he believes that he might do more by a +better economy of his time; but 'it is hopeless to try to write eight +hours a day.' He feels, too (July 21, 1864), that the great bulk of a +barrister's work is 'poor stuff.' It is a 'good vigorous trade' which +braces 'the moral and intellectual muscles' but he wishes for more. No +doubt he was tired, for he records for once enjoying a day of thorough +idleness a month later, lying on the grass at a cricket match, and +talking of prize-fighting. He is much impressed soon afterwards by a +sermon on the text, 'I will give you rest'; but his spirits are rapidly +reviving. + +In March 1865 be says, 'I cannot tell you how happy and prosperous I +feel on the whole.... I have never felt so well occupied and so +thoroughly fearless and happy on circuit before.' This was partly due to +improvement in other respects. Circuits were improving. He had given up +the 'Cornhill,' and was finding an outlet in 'Fraser' for much that had +been filling his mind. Other prospects were opening of which I shall +soon have to speak. + + +VII. DEFENCE OF DR. WILLIAMS + +I go back to another book which was closely connected with his +professional prospects and his intellectual interests. His 'Defence of +Dr. Rowland Williams' appeared in the spring of 1862, and represented +some very energetic and to him intensely interesting work. Certain +clergymen of the Church of England had discovered--what had been known +to other people for several generations--that there were mistakes in the +Bible. They inferred that it was desirable to open their minds to free +criticism, and that the Bible, as Jowett said, should be read 'like any +other book.' The result was the publication in 1860 of 'Essays and +Reviews,' which after a time created a turmoil which seems a little +astonishing to the present generation. Orthodox divines have, indeed, +adopted many of the conclusions which startled their predecessors, +though it remains to be seen what will be the results of the new wine in +the old bottles. The orthodoxy of 1860, at any rate, was scandalised, +and tried, as usual, to expel the obnoxious element from the Church. The +trial of Dr. Rowland Williams in the Arches Court of Canterbury in +December 1861 was one result of the agitation, and Fitzjames appeared as +his counsel. He had long been familiar with the writings of the school +which was being assailed. In 1855 he is reading Jowett's 'Commentary on +the Epistle to the Romans,' and calls it a 'kind, gentle Christian +book'--far more orthodox than he can himself pretend to be. +Characteristically he is puzzled and made 'unhappy' by finding that a +good and honest man claims and 'actually seems to possess a knowledge of +the relations between God and man,' on the strength of certain +sensibilities which place a gulf between him and his neighbours. He +probably met Jowett in some of his visits to Henry Smith at Oxford. At +the end of 1861 and afterwards he speaks of meetings with Jowett and +Stanley, for both of whom he expresses a very warm regard. + +During the latter part of 1861 he was hard at work upon the preparation +of his speech on behalf of Dr. Williams, which was published soon after +the trial. Without dwelling at any length upon the particular points +involved, I may say that the main issue was very simple. The principal +charge against Dr. Williams was that he had denied the inspiration of +the Bible in the sense in which 'inspiration' was understood by his +prosecutors. He had in particular denied that Jonah and Daniel were the +authors of the books which pass under their names, and he had disputed +the canonicity of the Epistle to the Hebrews. Fitzjames lays down as his +first principle that the question is purely legal; that is, that it is a +question, not whether Dr. Williams's doctrines were true, but whether +they were such as were forbidden by law to be uttered by a clergyman. +Secondly, the law was to be found in the Thirty-nine Articles, the +rubrics, and formularies, not, as the prosecutors alleged, in passages +from Scripture read in the services--a proposition which would introduce +the whole problem of truth or error. Thirdly, he urged, the Articles +had designedly left it open to clergymen to hold that the Bible +'contains' but does not 'constitute' the revelation which must no doubt +be regarded as divine. In this respect the Articles are contrasted with +the Westminster Confession, which affirms explicitly the absolute and +ultimate authority of the Bible. No one on that assumption may go behind +the sacred record; and no question can be raised as to the validity of +anything once admitted to form part of the sacred volume. The Anglican +clergy, on the contrary, are at liberty to apply criticism freely in +order to discriminate between that part of the Bible which is and that +which is not part of divine revelation. Finally, a long series of +authorities from Hooker to Bishop Hampden is adduced to prove that, in +point of fact, our most learned divines had constantly taken advantage +of this liberty; and established, so to speak, a right of way to all the +results of criticism. Of course, as Fitzjames points out, the enormous +increase of knowledge, critical and scientific, had led to very +different results in the later period. But he argues that the principle +was identical, and that it was therefore impossible to draw any line +which should condemn Dr. Williams for rejecting whole books, or denying +the existence of almost any genuine predictions in the Hebrew prophecies +without condemning the more trifling concessions of the same kind made +by Hooker or Chillingworth. If I may remove one stone from the building, +am I not at liberty to remove any stone which proves to be superfluous? +The argument, though forcible and learned, was not in the first instance +quite successful. Dr. Williams was convicted upon two counts; though he +afterwards (1864) succeeded in obtaining an acquittal upon them also on +an appeal to the committee of the Privy Council. Lord Westbury gave +judgment, and, as was said, deprived the clergy of the Church of +England of their 'last hopes of eternal damnation.' On the last +occasion Dr. Williams defended himself. + +The case increased Fitzjames's general reputation and led to his being +consulted in some similar cases, though it brought little immediate +result in the shape of briefs. For my purpose the most important result +is the indication afforded of his own religious position. He argues the +question as a matter of law; but not in the sense of reducing it to a +set of legal quibbles or technical subtleties. The prosecutors have +appealed to the law, and to the law they must go; but the law secures to +his client the liberty of uttering his conscientious convictions. Dr. +Williams, he says, 'would rather lose his living as an honest man than +retain it by sneaking out of his opinions like a knave and a liar.'[81] +He will therefore take a bold course and lay down broad principles. He +will not find subterfuges and loopholes of escape; but admit at once +that his client has said things startling to the ignorant, but that he +has said them because he had a right to say them. The main right is +briefly the right to criticise the Bible freely. Fitzjames admits that +he has to run the risk of apparently disparaging that 'most holy volume, +which from his earliest infancy he has been taught to revere as the +choicest gift of God to man, as the guide of his conduct here, the +foundation of his hopes hereafter.'[82] He declares that the articles +were framed with the confidence which has been 'justified by the +experience of three centuries,' and will, he hopes, be justified 'so +long as it pleases God to continue the existence of the human race,' +that the Scripture stands upon a foundation irremovable by any efforts +of criticism or interpretation.[83] The principle which he defends, +(that the Bible contains, but does not constitute revelation) is that +upon which the divines of the eighteenth century based their 'triumphant +defence of Christianity against the deists' of the period. I am certain +that Fitzjames, though speaking as an advocate, was also uttering his +own convictions in these words which at a later period he would have +been quite unable to adopt. I happened at the time to have a personal +interest in the subject, and I remember putting to him a question to +this effect: Your legal argument may be triumphant; but how about the +moral argument? A clergyman may have a right to express certain +opinions; but can you hold that a clergyman who holds those opinions, +and holds also what they necessarily imply, can continue, as an honest +man, to discharge his functions? As often happens, I remember my share +in our talk much more clearly than I remember his; but he was, I know, +startled, and, as I fancied, had scarcely contemplated the very obvious +application of his principles. I have now seen, however, a very full and +confidential answer given about the same time to a friend who had +consulted him upon the same topic. As I have always found, his most +confidential utterances are identical in substance with all that he said +publicly, although they go into more personal applications.[84] The main +purpose of this paper is to convince a lady that she may rightfully +believe in the doctrines of the Church of England, although she does not +feel herself able to go into the various metaphysical and critical +problems involved. The argument shows the way in which his religious +beliefs were combined with his Benthamism. He proves, for example, that +we should believe the truth by the argument that true belief is +'useful.' Conversely the utility of a belief is a presumption that it +contains much truth. Hence the prolonged existence of a Church and its +admitted utility afford a presumption that its doctrines are true as the +success of a political constitution is a reason for believing the theory +upon which it is built. This is enough to justify the unlearned for +accepting the creed of the Church to which they belong, just as they +have to accept the opinions of a lawyer or of a physician in matters of +health and business. They must not, indeed, accept what shocks their +consciences, nor allow 'an intelligible absurdity' to be passed off as a +'sacred mystery.' The popular doctrines of hell and of the atonement +come under this head; but he still refers to Coleridge for an account of +such doctrines, which appears to him 'quite satisfactory.' The Church of +England, however, lays so little stress upon points of dogmatic theology +that its yoke will be tolerable. Combined with this argument is a very +strong profession of his own belief. The belief in a moral governor of +the universe seems to him as ennobling as all other beliefs 'put +together,' and 'more precious.' Although the difficulty suggested by the +prevalence of evil is 'inimical to all levity,' yet he thinks that it +would be 'unreasonable and degrading' not to hold the doctrine itself. +And, finally, he declares that he accepts two doctrines of 'unspeakable +importance.' He prays frequently, and at times fervently, though not for +specific objects, and believes that his prayers are answered. And +further, he is convinced of a 'superintending Providence' which has +throughout affected his life. No argument that he has ever read or +heard has weighed with him a quarter as much as his own personal +experience in this matter. + +The paper, written with the most evident sincerity, speaks so strongly +of beliefs which he rarely avowed in public that I feel it almost wrong +to draw aside his habitual veil of reticence. I do so, though briefly, +because some of his friends who remember his early orthodoxy were +surprised by the contrast of what they call his aggressive unbelief in +later life. It is therefore necessary to show that at this period he had +some strong positive convictions, which indeed, though changed in later +years, continued to influence his mind. He was also persuaded that the +Church of England, guarded by the decisions of lawyers, could be kept +sufficiently open to admit the gradual infusion of rational belief. I +must further remark that his belief, whatever may be thought of it, +represented so powerful a sentiment that I must dwell for a little upon +its general characteristics. For this reason I will speak here of the +series of articles in 'Fraser' to which I have already referred. During +the next few years, 1864 to 1869, he wrote several, especially in +1864-5, which he apparently intended to collect. The most significant of +these is an article upon Newman's 'Apologia,' which appeared in +September 1864. + +Fitzjames had some personal acquaintance with Newman. He had been taken +to the Oratory, I believe by his friend Grant Duff; and had of course +been impressed by Newman's personal charm. Fitzjames, however, was not +the man to be awed by any reputation into reticence. He had a right to +ask for a serious answer to serious questions. Newman represented claims +which he absolutely rejected, but which he desired fully to understand. +He had on one occasion a conversation which he frequently mentioned in +later years. The substance, as I gather from one of his letters, was to +this effect: 'You say,' said Fitzjames, 'that it is my duty to treat you +and your Church as the agents and mouthpiece of Almighty God?' 'Yes.' +'Then give me anything like a reasonable ground for believing that you +are what you claim to be.' Newman appears to have replied in substance +that he could not argue with a man who differed so completely upon first +principles. Fitzjames took this as practically amounting to the +admission that Newman had 'nothing to say to anyone who did not go +three-fourths of the way to meet him.' 'I said at last,' he proceeds, +'"If Jesus Christ were here, could He say no more than you do?" "I +suppose you to mean that if He could, I ought to be able to give you +what you ask?" "Certainly, for you profess to be His authorised agent, +and call upon me to believe you on that ground. Prove it!" All he could +say was, "I cannot work miracles," to which I replied, "I did not ask +for miracles but for proofs." He had absolutely nothing to say.' + +I need hardly say that Newman's report of the conversation would +probably have differed from this, which gives a rough summary from +Fitzjames's later recollections. I do not hesitate, however, to express +my own belief that it gives a substantially accurate account; and that +the reason why Newman had nothing to say is simply that there was +nothing to be said. Persons who suppose that a man of Newman's genius in +stating an argument must have been a great logician, and who further +imagine that a great logician shows his power by a capacity of deducing +any conclusions from any premises, will of course deny that statement. +To argue the general question involved would be irrelevant. What I am +concerned to point out is simply the inapplicability of Newman's +argument to one in Fitzjames's state of mind. The result will, I think, +show very clearly what was his real position both now and in later +years. + +His essay on the 'Apologia' insists in the first place upon a +characteristic of Newman's writings, which has been frequently pointed +out by others; that is, that they are essentially sceptical. The author +reaches orthodox conclusions by arguments which are really fatal to +them. The legitimate inference from an argument does not depend upon the +intention of the arguer; and the true tendency of Newman's reasonings +appears simply by translating them into impartial language. Fitzjames +dwells especially upon Newman's treatment of the fundamental doctrine of +the existence of a God. Newman, for example, defends a belief in +transubstantiation by dwelling upon the antinomies involved in the +argument for a Deity. As, in one case, we cannot give any meaning to an +existence without a beginning, so, in the other, we can attach no +meaning to the word 'substance.' If the analogy be correct, the true +inference would be that both doctrines are meaningless aggregations of +words, and therefore not capable of being in any true sense either +'believed' or 'disbelieved.' So again the view of the external world +suggests to Newman 'atheism, pantheism, or polytheism.' Almighty +benevolence has created a world of intelligent beings, most of whom are +doomed to eternal tortures, and having become incarnate in order to save +us, has altogether failed in His purpose. The inference is, says +Fitzjames, that 'if Dr. Newman was thoroughly honest he would become an +atheist.' The existence of evil is, in fact, an argument against the +goodness of God; though it may be, as Fitzjames thinks it is in fact, +overbalanced by other evidence. But if it be true that God has created +an immense proportion of men to be eternally tormented in hell fire, it +is nonsense to call Him benevolent, and the explanation by a supposed +'catastrophe' is a mere evasion. + +In spite of this, Newman professes himself, and of course in all +sincerity, as much convinced of the existence of God as he is of his own +existence. The 'objections,' as he puts it, are only 'difficulties'; +they make it hard to understand the theory, but are no more reasons for +rejecting it than would be the difficulty which a non-mathematical mind +finds in understanding the differential calculus for rejecting 'Taylor's +theorem.' And, so far, the difference is rather in the process than the +conclusion. Newman believes in God on the testimony of an inner voice, +so conclusive and imperative that he can dismiss all apparently +contradictory facts, and even afford, for controversial purposes, to +exaggerate them. Fitzjames, as a sound believer in Mill's logic, makes +the facts the base of his whole argumentative structure, though he +thinks that the evidence for a benevolent Deity is much stronger than +the evidence against it. When we come to the narrower question of the +truth of Christianity the difference is vital. Newman's course had, in +fact, been decided by a belief, however generated, in the 'principle of +dogma,' and on the other hand by the gradual discovery of the +unsatisfactory nature of the old-fashioned Protestant argument as +interpreted by Paley and the evidence writers. For that argument, as has +been seen, Fitzjames had still a considerable respect. But no one had +insisted more energetically upon its practical insufficiency, at any +rate, than Newman. He had declared man's reason to be so corrupt, that +one who becomes a Protestant is on a slope which will inevitably lead +through Socinianism to Atheism. To prove his claims, therefore, to a +Protestant by appealing to such grounds as the testimony of the gospels, +was obviously impossible. That evidence, taken by itself, especially as +a sound utilitarian lawyer would take it, was, on his own showing, +practically insufficient to prove the truth of the alleged facts, and, +much more, to base upon them the claim of the infallible Church. It is +precisely the insufficiency of this view that gives force to the demand +for a supernatural authority. + +How, then, was Newman to answer an inquirer? Obviously, on his own +ground, he must appeal to the _à priori_ arguments afforded by the +instinctive desire of men for an authoritative body, and to the +satisfaction of their conscience by the dogmas revealed through its +agency. Then the question occurs: Is this a logical argument, or an +appeal from argument to feeling? Is it not, as Fitzjames thinks, a +roundabout way of saying, 'I believe in this system because it suits my +tastes and feelings, and because I consider truth unattainable'? If so, +persuasion is substituted for reasoning: and the force of persuasion +depends upon the constitution of the person to be persuaded. Now the +arguments, if they be called arguments, which Newman could address to +Fitzjames upon this topic were obviously inapplicable. The dogmas, says +Newman, are congenial to the conscience. The conscience demands an +avenging Deity, and therefore a doctrine of sacrifice. But such an +appeal fails if, in point of fact, a man's conscience rises against the +dogma. This was Fitzjames's position. 'Large parts of the (Catholic) +theology,' he says in a letter, 'are not only silly, but, I think, cruel +and immoral to the last degree. I think the doctrine of eternal +damnation so wicked and so cruel that I would as soon teach my children +to lie and steal as to believe in it.' This was to express one of his +strongest convictions. In a review of Theodore Parker's works,[85] +written shortly before, he had to deal with an advocate of that +'intuitional' theory which he always repudiated. But Parker at least +appealed to reason, and had, by a different path, reached moral +conclusions with Fitzjames thoroughly agreed. Doctrines, says Fitzjames, +which _prima facie_ conflict with our belief in a benevolent Creator, +such as the theory of vicarious suffering, are not indeed capable of +being refuted by Parker's summary method; but he fully agrees that they +could only be established by very strong evidence, which he obviously +does not believe to exist. To appeal, then, to the conscience on behalf +of the very doctrine which has been destroyed by the revolt of our moral +feelings is obviously impossible. Newman, when he notices that the +modern world rejects the sacrifice theory, explains it by saying that +the conscience of the modern world has decayed. But it is a mere playing +fast and loose with logic when you deny the authority of the court to +which you appeal as soon as it decides against you. To Fitzjames, at any +rate, who regarded these doctrines as radically immoral, the argument +could have no application. + +Finally, the desire for some infallible guide in the midst of our doubts +and difficulties is equally wide of the mark. It is so because, though +the desire for truth is perfectly natural or highly commendable, there +is not the slightest ground for supposing that it implies any royal road +to truth. In all other matters, political, social, and physical, we have +to blunder slowly into truth by harsh experience. Why not in religious +matters? Upon this Fitzjames frequently insists. Deny any _à priori_ +probability of such guidance, he says, and the Catholic argument +vanishes. Moreover, as he argues at length in his review of the +'Apologia,' it is absolutely inconsistent with facts. What is the use of +saying that man's nature demands an infallible guide, when, as a matter +of admitted fact, such a guide has only been granted to one small +fraction of mankind? For thousands of years, and over the great majority +of the present world, you admit yourselves that no such guide exists. +What, then, is the value of an _à priori_ argument that it must exist? +When Newman has to do with the existence of the Greek Church, he admits +it to be inconsistent with his theory, but discovers it to be a +'difficulty' instead of an 'objection.' That is to say that an argument +which you cannot answer is to be dismissed on pretence of being only a +'difficulty,' as nonsense is to be admitted under the name of a +'mystery.' If you argued in that way in a court of justice, and, because +you had decided a case one way, refused to admit evidence for the other +view, what would be the value of your decision? + +I cannot here argue the justice of this view of Newman's theories, +though personally I think it just. But it is, in any case, eminently +characteristic. Fitzjames, like Newman, had been much influenced by +Butler. Both of them, after a fashion, accept Butler's famous saying +that 'probability is the guide of life.' Newman, believing in the +necessity of dogma, holds that we are justified in transmuting the +belief corresponding to probability into such 'certitude' as corresponds +to demonstration. He does so by the help of appeals to our conscience, +which, for the reasons just given, fail to have any force for his +opponent. Fitzjames adhered steadily to Butler's doctrine. There is, he +says, a probability of the truth of the great religious doctrines--of +the existence of a God and a soul; and, therefore, of the correctness of +the belief that this world is a school or a preparation for something +higher and better. No one could speak more emphatically than he often +did of the vast importance of these doctrines. To hold them, he says, +makes all the difference between a man and a beast. But his almost +passionate assertion of this opinion would never lead him to +over-estimate the evidence in its favour. We do not know the truth of +these doctrines; we only know that they are probably true, and that +probability is and must be enough for us; we must not torture our +guesses into a sham appearance of infallible reasoning, nor call them +self-evident because we cannot prove them, nor try to transfer the case +from the court of reason to the court of sentiment or emotion. + +I might say, if I wished to be paradoxical, that this doctrine seems +strange precisely because it is so common. It is what most people who +think at all believe, but what nobody likes to avow. We have become so +accustomed to the assertion that it is a duty for the ignorant to hold +with unequivocal faith doctrines which are notoriously the very centres +of philosophical doubt, that it is hard to believe that a man can regard +them as at once important and incapable of strict proof. Fitzjames +naturally appears to the orthodox as an unbeliever, because he admits +the doubt. He replies to one such charge that the 'broad general +doctrines, which are the only consolation in death and the only solid +sanction of morality, never have been, and, please God, never shall be, +treated in these columns in any other spirit than that of profound +reverence and faith.'[86] Yet he would not say, for he did not think, +that those doctrines could be demonstrated. It was the odd thing about +your brother, said his old friend T. C. Sandars to me, that he would +bring one face to face with a hopeless antinomy, and instead of trying, +like most of us, to patch it up somehow, would conclude, 'Now let us go +to breakfast.' Some of us discover a supernatural authority in these +cases; others think that the doubt which besets these doctrines results +from a vain effort to transcend the conditions of our intelligence, and +that we should give up the attempt to solve them. Most men to whom they +occur resolve that if they cannot answer their doubts they can keep them +out of sight, even of themselves. Fitzjames was peculiar in frankly +admitting the desirability of knowledge, which he yet admitted, with +equal frankness, to be unattainable. And, for various reasons, partly +from natural pugnacity, he was more frequently engaged in exposing sham +substitutes for logic than in expounding his own grounds for believing +in the probability. His own view was given most strikingly in a little +allegory which I shall slightly condense, and which will, I think, +sufficiently explain his real position in these matters. It concludes a +review of a pamphlet by William Thomson, then Archbishop of York, upon +the 'Limits of Philosophical Enquiry.'[87] + +I dreamt, he says, after Bunyan's fashion, that I was in the cabin of a +ship, handsomely furnished and lighted. A number of people were +expounding the objects of the voyage and the principles of navigation. +They were contradicting each other eagerly, but each maintained that the +success of the voyage depended absolutely upon the adoption of his own +plan. The charts to which they appealed were in many places confused and +contradictory. They said that they were proclaiming the best of news, +but the substance of it was that when we reached port most of us would +be thrown into a dungeon and put to death by lingering torments. Some, +indeed, would receive different treatment; but they could not say why, +though all agreed in extolling the wisdom and mercy of the Sovereign of +the country. Saddened and confused I escaped to the deck, and found +myself somehow enrolled in the crew. The prospect was unlike the +accounts given in the cabin. There was no sun; we had but a faint +starlight, and there were occasionally glimpses of land and of what +might be lights on shore, which yet were pronounced by some of the crew +to be mere illusions. They held that the best thing to be done was to +let the ship drive as she would, without trying to keep her on what was +understood to be her course. For 'the strangest thing on that strange +ship was the fact that there was such a course.' Many theories were +offered about this, none quite satisfactory; but it was understood that +the ship was to be steered due north. The best and bravest and wisest of +the crew would dare the most terrible dangers, even from their comrades, +to keep her on her course. Putting these things together, and noting +that the ship was obviously framed and equipped for the voyage, I could +not help feeling that there was a port somewhere, though I doubted the +wisdom of those who professed to know all about it. I resolved to do my +duty, in the hope that it would turn out to have been my duty, and I +then felt that there was something bracing in the mystery by which we +were surrounded, and that, at all events, ignorance honestly admitted +and courageously faced, and rough duty vigorously done, was far better +than the sham knowledge and the bitter quarrels of the sickly cabin and +glaring lamplight from which I had escaped. + +I need add no exposition of a parable which gives his essential doctrine +more forcibly than I could do it. I will only add that he remained upon +good terms with Newman, who had, as he heard, spoken of his article as +honest, plain-spoken, and fair to him. He hopes, as he says upon this, +to see the old man and talk matters over with him--a phrase which +probably anticipates the interview of which I have spoken. Newman +afterwards (September 9, 1866) writes to him in a friendly way, and +gives him a statement of certain points of Catholic moral theology. +They seem to have met again, but without further argument. + +Fitzjames wrote various articles in 'Fraser' attacking Manning, and +criticising among other writings Mr. Lecky's 'Rationalism' (very +favourably), and Professor Seeley's then anonymous 'Ecce Homo.' He +thinks that the author is a 'sheep in wolf's clothing,' and that his +views dissolve into mist when closely examined. I need not give any +account of these articles, but I may notice a personal connection which +was involved. At this time Mr. Froude was editor of 'Fraser,' a +circumstance which doubtless recommended the organ. At what time he +became acquainted with Fitzjames I am unable to say; but the +acquaintanceship ripened into one of his closest friendships. They had +certain intellectual sympathies; and it would be hard to say which of +them had the most unequivocal hatred of popery. Here again, however, the +friendship was compatible with, or stimulated by, great contrasts of +temperament. No one could be blind to Froude's great personal charm +whenever he chose to exert it; but many people had the feeling that it +was not easy to be on such terms as to know the real man. There were +certain outworks of reserve and shyness to be surmounted, and they +indicated keen sensibilities which might be unintentionally shocked. But +to such a character there is often a great charm in the plain, downright +ways of a masculine friend, who speaks what he thinks without reserve +and without any covert intention. Froude and Fitzjames, in any case, +became warmly attached; Froude thoroughly appreciated Fitzjames's fine +qualities, and Fitzjames could not but delight in Froude's cordial +sympathy.[88] Fitzjames often stayed with him in later years, both in +Ireland and Devonshire: he took a share in the fishing, shooting, and +yachting in which Froude delighted; and if he could not rival his +friend's skill as a sportsman admired it heartily, delighted in pouring +out his thoughts about all matters, and, as Froude told me, recommended +himself to such companions as gamekeepers and fishermen by his hearty +and unaffected interest in their pursuits. + +Along with this friendship I must mention the friendship with Carlyle. +Carlyle had some intercourse with my father in the 'fifties.' My father, +indeed, had thought it proper to explain, in a rather elaborate letter +after an early conversation, that he did not sympathise with one of +Carlyle's diatribes against the Church of England, though he had not +liked to protest at the moment. Carlyle responded very courteously and +asked for further meetings. His view of my father was coloured by some +of his usual severity, but was not intentionally disparaging. + +Fitzjames, on his first call, had been received by Mrs. Carlyle, who +ordered him off the premises on suspicion of being an American celebrity +hunter. He submitted so peacefully that she relented; called him back, +and, discovering his name, apologised for her wrath. I cannot fix the +dates, but during these years Fitzjames gradually came to be very +intimate with her husband. Froude and he were often companions of the +old gentleman on some of his walks, though Fitzjames's opportunities +were limited by his many engagements. I may here say that it would, I +think, be easy to exaggerate the effects of this influence. In later +years Fitzjames, indeed, came to sympathise with many of Carlyle's +denunciations of the British Constitution and Parliamentary Government. +I think it probable that he was encouraged in this view by the fiery +jeremiads of the older man. He felt that he had an eminent associate in +condemning much that was a general object of admiration. But he had +reached his own conclusions by an independent path. From Carlyle he was +separated by his adherence to Mill's philosophical and ethical +principles. He was never, in Carlyle's phrase, a 'mystic'; and his +common sense and knowledge of practical affairs made many of Carlyle's +doctrines appear fantastic and extravagant. The socialistic element of +Carlyle's works, of which Mr. Ruskin has become the expositor, was +altogether against his principles. In walking with Carlyle he said that +it was desirable to steer the old gentleman in the direction of his +amazingly graphic personal reminiscences instead of giving him texts for +the political and moral diatribes which were apt to be reproductions of +his books. In various early writings he expressed his dissent very +decidedly along with a very cordial admiration both of the graphic +vigour of Carlyle's writings and of some of his general views of life. +In an article in 'Fraser' for December 1865, he prefaces a review of +'Frederick' by a long discussion of Carlyle's principles. He +professes himself to be one of the humble 'pig-philosophers' so +vigorously denounced by the prophet. Carlyle is described as a +'transcendentalist'--a kind of qualified equivalent to intuitionist. And +while he admires the shrewdness, picturesqueness, and bracing morality +of Carlyle's teaching, Fitzjames dissents from his philosophy. Nay, the +'pig-philosophers' are the really useful workers; they have achieved the +main reforms of the century; even their favourite parliamentary methods +and their democratic doctrines deserve more respect than Carlyle has +shown them; and Carlyle, if well advised, would recognise the true +meaning of some of the 'pig' doctrines to be in harmony with his own. +Their _laissez-faire_ theory, for example, is really a version of his +own favourite tenet, 'if a man will not work, neither let him eat.' +Although Fitzjames's views changed, he could never become a thorough +Carlylean; and after undertaking to write about Carlyle in Mr. Morley's +series he abandoned the attempt chiefly because, as he told me, he found +that he should have to adopt too frequently the attitude of a hostile +critic. Meanwhile Carlyle admired my brother's general force of +character, and ultimately made him his executor, in order, as he put it, +that there might be a 'great Molossian dog' to watch over his treasure. + + +VIII. VIEW OF THE CRIMINAL LAW + +I come now to the third book of which I have spoken. This was the +'General View of the Criminal Law of England,' published in 1863. +Fitzjames first begins to speak of his intention of writing this book in +1858. He then took it up in preference to the history of the English +administrative system, recommended by his father. That book, indeed, +would have required antiquarian researches for which he had neither time +nor taste. He thought his beginning too long and too dull to be finished +at present. He was anxious, moreover, at the time of the Education +Commission to emphasise the fact that he had no thoughts of abandoning +his profession. A law-book would answer this purpose; and the conclusion +of the commission in 1861, and the contemporary breach with the +'Saturday Review,' gave him leisure enough to take up this task. The +germ of the book was already contained in his article in the 'Cambridge +Essays,' part of which he reproduces. He aspired to make a book which +should be at once useful to lawyers and readable by every educated man. +The 'View' itself has been in a later edition eclipsed by the later +'History of the English Criminal Law.' In point of style it is perhaps +better than its successor, because more concentrated to a single focus. +Although I do not profess to be a competent critic of the law, a few +words will explain the sense in which I take it to be characteristic of +himself. + +The book, in the first place, is not, like most law-books, intended for +purely practical purposes. It attempts to give an account of the +'general scope, tendency, and design of an important part of our +institutions of which surely none can have a greater moral significance, +or be more closely connected with broad principles of morality and +politics, than those by which men rightfully, deliberately, and in cold +blood, kill, enslave, or otherwise torment their fellow-creatures.'[89] +The phrase explains the deep moral interest belonging in his mind to a +branch of legal practice which for sufficiently obvious reasons is +generally regarded as not deserving the attention of the higher class of +barristers. Fitzjames was always attracted by the dramatic interest of +important criminal cases, and by the close connection in various ways +between criminal law and morality. He had now gained sufficient +experience to speak with some authority upon a topic which was to occupy +him for many years. In his first principles he was an unhesitating +disciple of Bentham[90] and Austin. Bentham had given the first great +impulse to the reforms in the English Criminal Law, which began about +1827; and Austin had put Bentham's general doctrine into a rigid form +which to Fitzjames appeared perfectly satisfactory. Austin's authority +has declined as the historical method has developed; Fitzjames gives his +impression of their true relations in an article on 'Jurisprudence' in +the 'Edinburgh Review' of October 1861. He there reviews the +posthumously published lectures of Austin, along with Maine's great book +upon 'Ancient Law,' which in England heralded the new methods of +thought. His position is characteristic. He speaks enthusiastically of +Austin's services in accurately defining the primary conceptions with +which jurisprudence is conversant. The effect is, he says, nothing less +than this; that jurisprudence has become capable of truly scientific +treatment. He confirms his case by the parallel of the Political Economy +founded by Adam Smith and made scientific by Ricardo. I do not think +that Fitzjames was ever much interested in economical writings; and here +he is taking for granted the claims which were generally admitted under +the philosophical dynasty of J. S. Mill. Political Economy was supposed +to be a definitely constituted science; and the theory of jurisprudence, +which sprang from the same school and was indeed its other main +achievement, was entitled to the same rank. Fitzjames argues, or rather +takes for granted, that the claims of the economists to be strictly +scientific are not invalidated by the failure of their assumptions to +correspond exactly to concrete facts; and makes the same claim on behalf +of Austin. His view of Maine's work is determined by this. He of course +cordially admires his friend; but protests against the assumption by +which Maine is infected, that a history of the succession of opinions +can be equivalent to an examination of their value. Maine shows, for +example, how the theory of the 'rights of man' first came up in the +world; but does not thereby either prove or disprove it. It may have +been a fallacy suggested by accident or a truth first discovered in a +particular case. Maine, therefore, and the historical school generally +require some basis for their inquiries, and that basis is supplied by +the teaching of Bentham and Austin. I will only observe in connection +with this that Fitzjames is tempted by his love of such inquiries to +devote a rather excessive space in his law-book to inquiries about the +logical grounds of conviction which have the disadvantage of not being +strictly relevant, and the further disadvantage, I think, of following +J. S. Mill in some of the more questionable parts of his logic. + +The writings of Bentham consisted largely in denunciations of the +various failings of the English law; and here Fitzjames takes a +different position. One main point of the book was the working out of a +comparison already made in the 'Cambridge Essays' between the English +and the French systems. This is summed up in the statement that the +English accepts the 'litigious' and the French the 'inquisitorial' +system. In other words, the theory of French law is that the whole +process of detecting crime is part of the functions of government. In +France there is a hierarchy of officials who, upon hearing of a crime, +investigate the circumstances in every possible way, and examine +everyone who is able, or supposed to be able, to throw any light upon +it. The trial is merely the final stage of the investigation, at which +the various authorities bring out the final result of all their previous +proceedings. The theory of English law, on the contrary, is 'litigious': +the trial is a proceeding in which the prosecutor endeavours to prove +that the prisoner has rendered himself liable to a certain punishment; +and does so by producing evidence before a judge, who is taken to be, +and actually is, an impartial umpire. He has no previous knowledge of +the fact; he has had nothing to do with any investigations, and his +whole duty is to see that the game is played fairly between the +ligitants according to certain established rules. Neither system, +indeed, carries out the theory exclusively. 'An English criminal trial +is a public inquiry, having for its object the discover of truth, but +thrown for the purposes of obtaining that end into the form of a +litigation between the prosecutor and the prisoner.'[91] On the other +hand, in the French system, the jury is really an 'excrescence' +introduced by an afterthought. Now, says Fitzjames, the 'inquisitorial +theory' is 'beyond all question the true one.' A trial ought obviously +to be a public inquiry into a matter of public interest. He holds, +however, that the introduction of the continental machinery for the +detection of crime is altogether out of the question. It practically +regards the liberty and comfort of any number of innocent persons as +unimportant in comparison with the detection of a crime; and involves an +amount of interference and prying into all manner of collateral +questions which would be altogether unendurable in England. He is +therefore content to point out some of the disadvantages which result +from our want of system, and to suggest remedies which do not involve +any radical change of principle. + +This brings out his divergence from Bentham, not in principle but in the +application of his principles. One most characteristic part of the +English system is the law of evidence, which afterwards occupied much of +Fitzjames's thoughts. Upon the English system there are a great number +of facts which, in a logical sense, have a bearing upon the case, but +which are forbidden to be adduced in a trial. So, to make one obvious +example, husbands and wives are not allowed to give evidence against +each other. Why not? asks Bentham. Because, it is suggested, the +evidence could not be impartial. That, he replies, is an excellent +reason for not implicitly believing it; but it is no reason for not +receiving it. The testimony, even if it be partial, or even if false, +may yet be of the highest importance when duly sifted with a view to the +discovery of the truth. Why should we neglect any source from which +light may be obtained? Such arguments fill a large part of Bentham's +elaborate treatise upon the 'Rationale of Evidence,' and support his +denunciations of the 'artificial' system of English law. English +lawyers, he held, thought only of 'fee-gathering'; and their technical +methods virtually reduced a trial from an impartial process of +discovering truth into a mere struggle between lawyers fighting under a +set of technical and arbitrary rules. He observes, for example, that the +'natural' mode of deciding a case has been preserved in a few cases by +necessity, and especially in the case of Courts-Martial.[92] Bentham was +not a practical lawyer; and Fitzjames had on more than one occasion been +impressed in precisely the opposite way by the same case.[93] He had +pointed out that the want of attention to the rules of evidence betrayed +courts-martial into all manner of irrelevant and vexatious questions, +which protracted their proceedings beyond all tolerable limits. But, on +a larger scale, the same point was illustrated by a comparison between +French and English trials. To establish this, he gives careful accounts +of four English and three French trials for murder. The general result +is that, although some evidence was excluded in the English trials which +might have been useful, the advantage was, on the whole, greatly on +their side. The French lawyers were gradually drawn on into an enormous +quantity of investigations having very little relation to the case, +and finally producing a mass of complicated statements and +counter-statements beyond the capacity of a jury to bring to a definite +issue. The English trials, on the other hand, did, in fact, bring +matters to a focus, and allowed all really relevant matters to be fairly +laid before the court. A criminal trial has to be more or less of a +rough and ready bit of practical business. The test by which it is +decided is not anything which can be laid down on abstract logical +principles, but reduces itself to the simple fact that you can get +twelve men to express a conviction equal to that which would decide them +in important business of their own. And thus, though the English law is +unsystematic, ill-arranged, and superficially wanting in scientific +accuracy, it does, in fact, represent a body of principles, worked out +by the rough common sense of successive generations, and requires only +to be tabulated and arranged to become a system of the highest +excellence. + +The greatest merit, perhaps, of the English system is the attitude +naturally assumed by the judge. No one, says Fitzjames, 'can fail to be +touched' when he sees an eminent lawyer 'bending the whole force of his +mind to understand the confused, bewildered, wearisome, and +half-articulate mixture of question and statement which some wretched +clown pours out in the agony of his terror and confusion.' The latitude +allowed in such cases is highly honourable. 'Hardly anything short of +wilful misbehaviour, such as gross insults to the court or abuse of a +witness, will draw upon (the prisoner) the mildest reproof.'[94] The +tacit understanding by which the counsel for the Crown is forbidden to +press his case unfairly is another proof of the excellence of our +system, which contrasts favourably in this respect with the badgering +and the prolonged moral torture to which a French prisoner is subject. +Reforms, however, are needed which will not weaken these excellences. +The absence of any plan for interrogating the prisoner avoids the abuses +of the French system, but is often a cruel hardship upon the innocent. +'There is a scene,' he says, 'which most lawyers know by heart, but +which I can never hear without pain.' It is the scene when the prisoner, +confused by the unfamiliar surroundings, and by the legal rules which he +does not understand, tries to question the adverse witness, and muddles +up the examination with what ought to be his speech for the defence, +and, not knowing how to examine, is at last reduced to utter perplexity, +and thinks it respectful to be silent. He mentions a case by which he +had been much impressed, in which certain men accused of poaching had +failed, from want of education and familiarity with legal rules, to +bring out their real defence. An unlucky man, for example, had asked +questions about the colour of a dog, which seemed to have no bearing +upon the case, but which, as it afterwards turned out, incidentally +pointed to a fact which identified the really guilty parties. He thinks +that the interrogation of the prisoner might be introduced under such +restrictions as would prevent any unfair bullying, and yet tend both to +help an innocent man and to put difficulties in the way of sham or false +defences of the guilty. This question, I believe, is still unsettled. I +will not dwell upon other suggestions. I will only observe that he is in +favour of some codification of the criminal law; though he thinks that +enough would be done by re-enacting, in a simpler and less technical +form, the six 'Consolidation Acts' of 1861. He proposes, also, the +formation of a Ministry of Justice which would in various ways direct +the administration of the law, and superintend criminal legislation. +Briefly, however, I am content to say that, while he starts from +Bentham, and admits Bentham's fundamental principles, he has become +convinced by experience that Bentham's onslaught upon 'judge-made law,' +and legal fictions, and the 'fee-gathering' system, was in great part +due to misunderstanding. The law requires to be systematised and made +clear rather than to be substantially altered. It is, on the whole, a +'generous, humane, and high-minded system, eminently favourable to +individuals, and free from the taint of that fierce cowardice which +demands that, for the protection of society, somebody shall be punished +when a crime has been committed.' Though English lawyers are too apt to +set off 'an unreasonable hardship against an unreasonable indulgence,' +'to trump one quibble by another, and to suppose that they cannot be +wrong in practice because they are ostentatiously indifferent to +theory,' the temper of the law is, in the main, 'noble and generous.' +'No spectacle,' he says, 'can be better fitted to satisfy the bulk of +the population, to teach them to regard the Government as their friend, +and to read them lessons of truth, gentleness, moderation, and respect +for the rights of others, especially for the rights of the weak and the +wicked, than the manner in which criminal justice is generally +administered in this country.'[95] + +The book produced many of those compliments to which he was becoming +accustomed, with a rather rueful sense of their small value. He could, +he says, set up a shop with the stock he had received, though, in common +honesty, he would have to warn his customers of the small practical +value of his goods. Two years hence, he thinks that a report of his +being a legal author of some reputation may have reached an attorney. +Among the warmest admirers was Willes, who called the 'View' a 'grand +book,' kept it by him on the bench, and laid down the law out of it. +Willes remarks in a murder case at the same time (March 1865) that the +prisoner has been defended 'with a force and ability which, if anything +could console one for having to take part in such a case, would do so.' +'It is a great consolation to me,' remarks Fitzjames. The local +newspaper observes on the same occasion that Fitzjames's speech for the +prisoner kept his audience listening 'in rapt attention' to one of the +ablest addresses ever delivered under such circumstances. In the +beginning of 1865 he 'obtained the consent' of his old tutor Field, now +leader on the circuit, to his giving up attendance at sessions except +upon special retainers. Altogether he is feeling more independent and +competent for his professional duties. + + +IX. THE 'PALL MALL GAZETTE' + +At this time, however, he joined in another undertaking which for the +following five years occupied much of his thoughts. It involved labours +so regular and absorbing, that they would have been impossible had his +professional employments been equal to his wishes. Towards the end of +1864 he informs Mr. Smith that he cannot continue to be a regular +contributor to the 'Cornhill Magazine.' He observes, however, that if +Mr. Smith carries out certain plans then in contemplation, he will be +happy to take the opportunity of writing upon matters of a more serious +kind. The reference is to the 'Pall Mall Gazette,' of which the first +number appeared on February 7, 1865, upon the opening day of the +parliamentary session. The 'Pall Mall Gazette' very soon took a place +among daily papers similar to that which had been occupied by the +'Saturday Review' in the weekly press. Many able writers were attached, +and especially the great 'Jacob Omnium' (Matthew James Higgins), who had +a superlative turn for 'occasional notes,' and 'W. R. G.' (William +Rathbone Greg), who was fond of arguing points from a rather +paradoxical point of view. 'I like refuting W. R. G.,' says Fitzjames, +though the 'refutations' were on both sides courteous and even +friendly.[96] Mr. Frederic Harrison was another antagonist, who always +fought in a chivalrous spirit, and on one occasion a controversy between +them upon the theory of strikes actually ends by a mutual acceptance of +each other's conclusions. A sharp encounter with 'Historicus' of the +'Times' shows that old Cambridge encounters had not produced agreement. +Fitzjames was one of the writers to whom Mr. Smith applied at an early +stage of the preparatory arrangements. Fitzjames's previous experience +of Mr. Smith's qualities as a publisher made him a very willing recruit, +and he did his best to enlist others in the same service. He began to +write in the second number of the paper, and before very long he took +the lion's share of the leading articles. The amount of work, indeed, +which he turned out in this capacity, simultaneously with professional +work and with some other literary occupations, was so great that these +years must, I take it, have been the most laborious in a life of +unflagging labour. I give below an account of the number of articles +contributed, which will tell the story more forcibly than any general +statement. A word or two of explanation will be enough.[97] The 'Pall +Mall' of those days consisted of a leading article (rarely of two) +often running to a much greater length than is now common; of +'occasional notes,' which were then a comparative novelty; of reviews, +and of a few miscellaneous articles. The leading article was a rather +more important part of the paper, or at least took up a larger +proportion of space than it does at the present day. Making allowance +for Sundays, it will be seen that in 1868 Fitzjames wrote two-thirds of +the leaders, nearly half the leaders in 1867, and not much less than +half in the three other years (1865, 1866, and 1869). The editor was Mr. +F. Greenwood, who has kindly given me some of his recollections of the +time. That Mr. Greenwood esteemed his contributor as a writer is +sufficiently obvious from the simple statement of figures: and I may add +that they soon formed a very warm friendship which was never interrupted +in later years. + +I have said that Fitzjames valued his connection with the paper because +it enabled him to speak his mind upon many important subjects which had +hitherto been forbidden to him. In the 'Saturday Review' he had been +confined to the 'middles' and the reviews of books. He never touched +political questions; and such utterances as occurred upon ecclesiastical +matters were limited by the high church propensities of the proprietor. +In the 'Cornhill' he had been bound to keep within the limits prescribed +by the tastes of average readers of light literature. In the 'Pall Mall +Gazette' he was able to speak out with perfect freedom upon all the +graver topics of the day. His general plan, when in town, was to write +before breakfast, and then to look in at the office of the 'Pall Mall +Gazette,' Northumberland Street, Strand, in the course of his walk to +his chambers. There he talked matters over with Mr. Greenwood, and +occasionally wrote an article on the spot. When on circuit he still +found time to write, and kept up a steady supply of matter. I find him +remarking, on one occasion, that he had written five or six leaders in +the 'Pall Mall Gazette' for the week, besides two 'Saturday Review' +articles. Everyone who has had experience of journalism knows that the +time spent in actual writing is a very inadequate measure of the mental +wear and tear due to production. An article may be turned out in an hour +or two; but the work takes off the cream of the day, and involves much +incidental thought and worry. Fitzjames seemed perfectly insensible to +the labour; articles came from him as easily as ordinary talk; the +fountain seemed to be always full, and had only to be turned on to the +desired end. The chief fault which I should be disposed to find with +these articles is doubtless a consequence of this fluency. He has not +taken time to make them short. They often resemble the summing-up of a +judge, who goes through the evidence on both sides in the order in which +it has been presented to him, and then states the 'observations which +arise' and the 'general result' (to use his favourite phrases). A more +effective mode of presenting the case might be reached by at once giving +the vital point and arranging the facts in a new order of subordination. + +The articles, however, had another merit which I take to be exceedingly +rare. I have often wondered over the problem, What constitutes the +identity of a newspaper? I do not mean to ask, though it might be asked, +In what sense is the 'Pall Mall Gazette' of to-day the same newspaper +as the 'Pall Mall Gazette' of 1865? but What is meant by the editorial +'We'? The inexperienced person is inclined to explain it as a mere +grammatical phrase which covers in turn a whole series of contributors. +But any writer in a paper, however free a course may be conceded to him, +finds as a fact that the 'we' means something very real and potent. As +soon as he puts on the mantle, he finds that an indefinable change has +come over his whole method of thinking and expressing himself. He is no +longer an individual but the mouthpiece of an oracle. He catches some +infection of style, and feels that although he may believe what he says, +it is not the independent outcome of his own private idiosyncrasy. Now +Fitzjames's articles are specially remarkable for their immunity from +this characteristic. When I read them at the time, and I have had the +same experience in looking over them again, I recognised his words just +as plainly as if I had heard his voice. A signature would to me and to +all in the secret have been a superfluity. And, although the general +public had not the same means of knowledge, it was equally able to +perceive that a large part of the 'Pall Mall Gazette' represented the +individual convictions of a definite human being, who had, moreover, +very strong convictions, and who wrote with the single aim of expressing +them as clearly and vigorously as he could. Fitzjames, as I have shown +sufficiently, was not of the malleable variety; he did not fit easily +into moulds provided by others; but now that his masterful intellect had +full play and was allowed to pour out his genuine thought, it gave the +impress of individual character to the paper in a degree altogether +unusual. + +I have one anecdote from Mr. Greenwood which will sufficiently +illustrate this statement. Lord Palmerston died on October 18, 1865. On +October 27 he was buried in Westminster Abbey. Fitzjames came to the +'Pall Mall Gazette' office and proposed to write an article upon the +occasion. He went for the purpose into a room divided by a thin +partition from that in which Mr. Greenwood sat. Mr. Greenwood +unintentionally became aware, in consequence, that the article was +composed literally with prayer and with tears. No one who turns to it +will be surprised at the statement. He begins by saying that we are +paying honour to a man for a patriotic high spirit which enabled him to +take a conspicuous part in building up the great fabric of the British +Empire. But he was also--as all who were taking part in the ceremony +believed in their hearts--a 'man of the world' and 'a man of pleasure.' +Do we, then, disbelieve in our own creed, or are we engaged in a solemn +mockery? Palmerston had not obeyed the conditions under which alone, as +every preacher will tell us, heaven can be hoped for. Patriotism, good +nature, and so forth are, as we are told, mere 'filthy rags' of no avail +in the sight of heaven. If this belief be genuine, the service must be a +mockery. But he fully believes that it is not genuine. The preachers are +inconsistent, but it is an honourable inconsistency. If good and evil be +not empty labels of insincere flattery, it is 'right, meet, and our +bounden duty' to do what is being done even now--to kneel beside the +'great, good, and simple man whom we all deplore,' and to thank God that +it has pleased Him to remove our brother 'out of the miseries of this +sinful world.' + +'Our miserable technical rules reach but a little way into the mystery' +which 'dimly foreshadows that whatever we with our small capacities have +been able to love and honour, God, who is infinitely wiser, juster, and +more powerful, will love and honour too, and that whatever we have been +compelled to blame, God, who is too pure to endure unrighteousness, will +deal with, not revengefully or capriciously, but justly and with a +righteous purpose. Whatever else we believe, it is the cardinal +doctrine of all belief worth having that the Judge of all the earth will +do right; that His justice is confined to no rules; that His mercy is +over all the earth; and that revenge, caprice, and cruelty can have no +place in His punishments.' + +Few leading articles, I take it, have been written under such conditions +or in such a spirit. The reader must have felt himself face to face with +a real man, profoundly moved by genuine thoughts and troubled as only +the most able and honest men are troubled, by the contrast between our +accustomed commonplaces and our real beliefs. Most of his articles are +written in a strain of solid and generally calm common sense; and some, +no doubt, must have been of the kind compared by his father to singing +without inflated lungs--mere pieces of routine taskwork. Yet, as I have +already shown, by his allegory of the ship, there was always a strong +vein of intense feeling upon certain subjects, restrained as a rule by +his dislike to unveiling his heart too freely and yet making itself +perceptible in some forcible phrase and in the general temper of mind +implied. The great mass of such work is necessarily of ephemeral +interest; and it is painful to turn over the old pages and observe what +a mould of antiquity seems to have spread over controversies so exciting +only thirty years ago. We have gone far in the interval; though it is +well to remember that we too shall soon be out of date, and our most +modern doctrines lose the bloom of novelty. There are, however, certain +lights in which even the most venerable discussions preserve all their +freshness. Without attempting any minute details, I will endeavour to +indicate the points characteristic of my brother's development. + +There was one doctrine which he expounds in many connections, and which +had a very deep root in his character. It appears, for example, in his +choice of a profession; decided mainly by the comparison between the +secular and the spiritual man. The problem suggested to him by Lord +Palmerston shows another application of the same mode of thought. What +is the true relation between the Church and the world; or between the +monastic and ascetic view of life represented by Newman and the view of +the lawyer or man of business? To him, as I have said, God seemed to be +more palpably present in a court of justice than in a monastery; and +this was not a mere epigram expressive of a transitory mood. Various +occurrences of the day led him to apply his views to questions connected +with the Established Church. After the 'Essays and Reviews' had ceased +to be exciting there were some eager discussions about Colenso, and his +relations as Bishop of Natal to the Bishop of Capetown. Controversies +between liberal Catholics and Ultramontanes raised the same question +under different aspects, and Fitzjames frequently finds texts upon which +to preach his favourite sermon. It may be said, I think, that there are +three main lines of opinion. In the first place, there was the view of +the liberationists and their like. The ideal is a free Church in a free +State. Each has its own sphere, and, as Macaulay puts it in his famous +essay upon Mr. Gladstone's early book, the State has no more to do with +the religious opinions of its subjects than the North-Western Railway +with the religious opinions of its shareholders. This, represented a +view to which Fitzjames felt the strongest antipathy. It assumed, he +thought, a radically false notion, the possibility of dividing human +life into two parts, religious and secular; whereas in point of fact the +State is as closely interested as the Church in the morality of its +members, and therefore in the religion which determines the morality. +The State can only keep apart permanently from religious questions by +resigning all share in the most profoundly important and interesting +problems of life. To accept this principle would therefore be to degrade +the State to a mere commercial concern, and it was just for that reason +that its acceptance was natural to the ordinary radical who reflected +the prejudices of the petty trader. A State which deserves the name has +to adopt morality of one kind or another, in its criminal legislation, +in its whole national policy, in its relation to education, and more or +less in every great department of life. In his view, therefore, the +ordinary cry for disestablishment was not the recognition of a tenable +and consistent principle, but an attempt to arrange a temporary +compromise which could only work under special conditions, and must +break up whenever men's minds were really stirred. However reluctant +they may be, they will have to answer the question, Is this religion +true or not? and to regulate their affairs accordingly. He often +expresses a conviction that we are all in fact on the eve of such a +controversy, which must stir the whole of society to its base. + +We have, then, to choose between two other views. The doctrine of +sovereignty expounded by Austin, and derived from his favourite +philosopher Hobbes, enabled him to put the point in his own dialect. The +difference between Church and State, he said, is not a difference of +spheres, but a difference of sanctions. Their commands have the same +subject matter: but the priest says, 'Do this or be damned'; the lawyer, +'Do this or be hanged.' Hence the complete separation is a mere dream. +Since both bodies deal with the same facts, there must be an ultimate +authority. The only question is which? Will you obey the Pope or the +Emperor, the power which claims the keys of another life or the power +which wields the sword in this. So far he agrees with the Ultramontanes +as against the liberal Catholics. But, though the Ultramontanes put the +issue rightly, his answer is diametrically opposite. He follows Hobbes +and is a thorough-going Erastian. He sympathised to some degree with the +doctrine of Coleridge and Dr. Arnold. They regarded the Church and the +State as in a sense identical; as the same body viewed under different +aspects. Fitzjames held also that State and Church should be identical; +but rather in the form that State and Church were to be one and that one +the State. For this there were two good reasons. In the first place, the +claims of the Church to supernatural authority were altogether baseless. +To bow to those claims was to become slaves of priests and to accept +superstitions. And, in the next place, this is no mere accident. The +division between the priest and layman corresponds to his division +between his 'sentimentalist' and his 'stern, cold man of common sense.' +Now the priest may very well supply the enthusiasm, but the task of +legislation is one which demands the cool, solid judgment of the layman. +He insists upon this, for example, in noticing Professor Seeley's +description of the 'Enthusiasm of Humanity' in 'Ecce Homo.' Such a +spirit, he urges, may supply the motive power, but the essence of the +legislative power is to restrict and constrain, and that is the work not +of the enthusiast, but of the man of business. During this period he +seems to have had some hopes that his principles might be applied. The +lawyers had prevented the clergy from expelling each section of the +Church in turn: and the decision in the 'Essays and Reviews' cases had +settled that free-thinking should have its representatives among +ecclesiastical authorities. At one period he even suggests that, if an +article or two were added to the thirty-nine, some change made in the +ordination service, and a relaxation granted in the terms of +subscription, the Church might be protected from sacerdotalism; and, +though some of the clergy might secede to Rome, the Church of England +might be preserved as virtually the religious department of the State. +He soon saw that any realisation of such views was hopeless. He writes +from India in 1870 to a friend, whom he had advised upon a prosecution +for heresy, saying that he saw clearly that we were drifting towards +voluntaryism. Any other solution was for the present out of the +question; although he continued to regard this as a makeshift compound, +and never ceased to object to disestablishment. + +Fitzjames's political views show the same tendencies. He had not +hitherto taken any active interest in politics, taken in the narrower +sense. Our friend Henry Fawcett, with whom he had many talks on his +Christmas visits to Trinity Hall, was rather scandalised by my brother's +attitude of detachment in regard to the party questions of the day. +Fitzjames stood for Harwich in the Liberal interest at the general +election of 1865; but much more because he thought that a seat in +Parliament would be useful in his profession than from any keen interest +in politics. The Harwich electors in those days did not, I think, take +much interest themselves in political principles. Both they and he, +however, seemed dimly to perceive that he was rather out of his element, +and the whole affair, which ended in failure, was of the comic order. +His indifference and want of familiarity with the small talk of politics +probably diminished the effect of his articles in so far as it implied a +tendency to fall back upon principles too general for the average +reader. But there was no want of decided convictions. The death of +Palmerston marked the end of the old era, and was soon succeeded by the +discussions over parliamentary reform which led to Disraeli's measure of +1867. Fitzjames considered himself to be a Liberal, but the Liberals of +those days were divided into various sections, not fully conscious of +the differences which divided them. In one of his 'Cornhill' +articles[98] Fitzjames had attempted to define what he meant by +liberalism. It meant, he said, hostility to antiquated and narrow-minded +institutions. It ought also to mean 'generous and high-minded sentiments +upon political subjects guided by a highly instructed, large-minded and +impartial intellect, briefly the opposite of sordidness, vulgarity, and +bigotry.' The party technically called Liberal were about to admit a +larger popular element to a share of political power. The result would +be good or bad as the new rulers acted or did not act in the spirit +properly called Liberal. Unluckily the flattery of the working-man has +come into fashion; we ignore his necessary limitations, and we deify the +'casual opinions and ineffectual public sentiments' of the +half-educated. 'The great characteristic danger of our days is the +growth of a quiet, ignoble littleness of character and spirit.' We +should aim, therefore, at impressing our new masters 'with a lofty +notion not merely of the splendour of the history of their country, but +of the part which it has to play in the world, and of the spirit in +which it should be played.' He gives as an example a topic to which he +constantly turns. The 'whole fabric' of the Indian Empire, he says, is a +monument of energy, 'skill and courage, and, on the whole, of justice +and energy, such as the world never saw before.' How are we to deal with +that great inheritance bequeathed to us by the courage of heroes and the +wisdom of statesmen? India is but one instance. There is hardly an +institution in the country which may not be renewed if we catch the +spirit which presided over its formation. Liberals have now to be +authors instead of critics, and their solution of such problems will +decide whether their success is to be a curse or a blessing. + +This gives the keynote of his writings in the 'Pall Mall Gazette.' He +frankly recognises the necessity, and therefore does not discuss the +advisability, of a large extension of the franchise. He protests only +against the view, which he attributes to Bright, that the new voters are +to enter as victors storming the fortress of old oppressors, holding +that they should be rather cordially invited to take their place in a +stately mansion upheld for eight centuries by their ancestors. When +people are once admitted, however, the pretext for admission is of +little importance. Fitzjames gradually comes to have his doubts. There +is, he says, a liberalism of the intellect and a liberalism of +sentiment. The intellectual liberal is called a 'cold-hearted +doctrinaire' because he asks only whether a theory be true or false; and +because he wishes for statesmanlike reforms of the Church, the +educational system, and the law, even though the ten-pound householder +may be indifferent to them. But the sentimental liberal thought only of +such measures as would come home to the ten-pound householder; and +apparently this kind of liberal was getting the best of it. The various +party manoeuvres which culminated in the Reform Bill begin to excite +his contempt. He is vexed by the many weaknesses of party government. +The war of 1866 suggests reflections upon the military weakness of +England, and upon the inability of our statesmen to attend to any object +which has no effect upon votes. The behaviour of the Conservative +Government in the case of the Hyde Park riots of the same year excites +his hearty contempt. He is in favour of the disestablishment of the +Irish Church, and lays down substantially the principles embodied in +Mr. Gladstone's measure. But he sympathises more and more with Carlyle's +view of our blessed constitution. We have the weakest and least +permanent government that ever ruled a great empire, and it seems to be +totally incapable of ever undertaking any of the great measures which +require foresight and statesmanship. He compares in this connection the +construction of legal codes in India with our inability to make use of a +great legal reformer, such as Lord Westbury, when we happen to get him. +Sentiments of this kind seem to grow upon him, although they are not +expressed with bitterness or many personal applications. It is enough to +say that his antipathy to sentimentalism, and to the want of high +patriotic spirit in the Manchester school of politics, blends with a +rather contemptuous attitude towards the parliamentary system. It +reveals itself to him, now that he is forced to become a critic, as a +petty game of wire-pulling and of pandering to shallow popular +prejudices of which he is beginning to grow impatient. + +I may finish the account of his literary activity at this time by saying +that he was still contributing occasional articles to 'Fraser' and to +the 'Saturday Review.' The 'Saturday Review' articles were part of a +scheme which he took up about 1864. It occurred to him that he would be +employing himself more profitably by writing a series of articles upon +old authors than by continuing to review the literature of the day. He +might thus put together a kind of general course of literature. He wrote +accordingly a series of articles which involved a great amount of +reading as he went through the works of some voluminous authors. They +were published as 'Horæ Sabbaticæ' in 1892, in three volumes, without +any serious revision. It is unnecessary to dwell upon them at any +length. It would be unfair to treat them as literary criticism, for +which he cared as little as it deserves. He was very fond, indeed, of +Sainte-Beuve, but almost as much for the information as for the +criticism contained in the 'Causeries.' He had always a fancy for such +books as Gibbon's great work which give a wide panoramic view of +history, and defended his taste on principle. These articles deal with +some historical books which interested him, but are chiefly concerned +with French and English writers from Hooker to Paley and from Pascal to +De Maistre, who dealt with his favourite philosophical problems. Their +peculiarity is that the writer has read his authors pretty much as if he +were reading an argument in a contemporary magazine. He gives his view +of the intrinsic merits of the logic with little allowance for the +historical position of the author. He has not made any study of the +general history of philosophy, and has not troubled himself to compare +his impressions with those of other critics. The consequence is that +there are some very palpable misconceptions and failure to appreciate +the true relation to contemporary literature of the books criticised. I +can only say, therefore, that they will be interesting to readers who +like to see the impression made upon a masculine though not specially +prepared mind by the perusal of certain famous books, and who relish an +independent verdict expressed in downright terms without care for the +conventional opinion of professional critics. + +His thoughts naturally turned a good deal to various projects connected +with his writing. In July 1867 he writes that he has resolved to +concentrate himself chiefly upon the 'Pall Mall Gazette' for the +present. He is, however, to complete some schemes already begun. The +'Fraser' articles upon religious topics will make one book; then there +are the 'Horæ Sabbaticæ' articles, of which he has already written +fifty-eight, and which will be finished in about twenty more. But, +besides this, he has five law-books in his mind, including a rewriting +of the book on criminal law and a completion of the old book upon the +administrative history. Others are to deal with martial law, insanity, +and the relations of England to India and the colonies. Beyond these he +looks at an 'awful distance' upon a great book upon law and morals. He +is beginning to doubt whether literature would not be more congenial +than law, if he could obtain some kind of permanent independent +position. Law, no doubt, has given him a good training, but the +pettiness of most of the business can hardly be exaggerated; and he +hardly feels inclined to make it the great aim of his life. He had, +however, risen to a distinctly higher position on his circuit; and just +at this time he was engaged in one of the cases which, as usual, brought +more in the way of glory than of gain. + + +X. GOVERNOR EYRE + +The troubles in Jamaica had taken place in October 1865. The severity of +the repressive measures excited indignation in England; and discussions +arose conducted with a bitterness not often paralleled. The Gordon case +was the chief topic of controversy. Governor Eyre had arrested Gordon, +whom he considered to be the mainspring of the insurrection, and sent +him to the district in which martial law had been proclaimed. There he +was tried by a court-martial ordered by General Nelson, and speedily +hanged. The controversy which followed is a curious illustration of the +modes of reasoning of philosophers and statesmen. Nobody could deny the +general proposition that the authorities are bound to take energetic +measures to prevent the horrors of a servile insurrection. Nor could +anyone deny that they are equally bound to avoid the needless severities +which the fear of such horrors is likely to produce. Which principle +should apply was a question of fact; but in practice the facts were +taken for granted. One party assumed unanimously that Governor Eyre had +been doing no more than his duty; and the other, with equal confidence, +assumed that he was guilty of extreme severity. A commission, consisting +of Sir Henry Storks, Mr. Russell Gurney, and Mr. Maule, the recorder of +Leeds, was sent out at the end of 1865 to inquire into the facts. +Meanwhile the Jamaica Committee was formed, of which J. S. Mill was +chairman, with Mr. P. A. Taylor, the Radical leader, as +vice-chairman.[99] The committee (in January 1866) took the opinions of +Fitzjames and Mr. Edward James as to the proper mode of invoking the +law. Fitzjames drew the opinion, which was signed by Mr. James and +himself.[100] After the report of the Commission (April 1866), which +showed that excesses had been committed, the committee acted upon this +opinion. + +From Fitzjames's letters written at the time, I find that his study of +the papers published by the Commission convinced him that Governor Eyre +had gone beyond the proper limits in his behaviour towards Gordon. The +governor, he thought, had been guilty of an 'outrageous stretch of +power,' and had hanged Gordon, not because it was necessary to keep the +peace, but because it seemed to be expedient on general political +grounds. This was what the law called murder, whatever the propriety of +the name. Fitzjames made an application in January 1867 before Sir +Thomas Henry, the magistrate at Bow Street, to commit for trial the +officers responsible for the court-martial proceedings (General Nelson +and Lieutenant Brand) on the charge of murder. In March he appeared +before the justices at Market Drayton, in Shropshire, to make a similar +application in the case of Governor Eyre. He was opposed by Mr. (the +late Lord) Hannen at Bow Street, and by Mr. Giffard (now Lord Halsbury) +at Market Drayton. The country magistrates dismissed the case at once; +but Sir Thomas Henry committed Nelson and Brand for trial. Mr. +Lushington tells me that Sir Thomas Henry often spoke to him with great +admiration of Fitzjames's powerful argument on the occasion. On April +10, 1867, the trial of Nelson and Brand came on at the Old Bailey, when +Chief Justice Cockburn delivered an elaborate charge, taking +substantially the view of the law already expounded by Fitzjames. The +grand jury, however, threw out the bill. + +The law, as understood by Fitzjames, comes, I think, substantially to +this. The so-called 'martial law' is simply an application of the power +given by the common law to put down actual insurrection by force. The +officers who employ force are responsible for any excessive cruelty, and +are not justified in using it after resistance is suppressed, or the +ordinary courts reopened. The so-called courts-martial are not properly +courts at all, but simply committees for carrying out the measures +adopted on the responsibility of the officials; and the proclamation is +merely a public notice that such measures will be employed. + +It is clear from Fitzjames's speeches that he felt much sympathy for the +persons who had been placed in a position of singular difficulty, and +found it hard to draw the line between energetic defence of order and +over-severity to the rebels. He explains very carefully that he is not +concerned with the moral question, and contends only that the legal name +for their conduct is murder. In fact, he paid compliments to the accused +which would be very inappropriate to the class of murderers in the +ordinary sense of the term. The counsel on the opposite side naturally +took advantage of this, and described his remarks as a 'ghastly show of +compliment.' It must be awkward to say that a man is legally a murderer +when you evidently mean only he has lost his head and gone too far under +exceedingly trying circumstances. The Jamaica Committee did not admit of +any such distinction. To them Governor Eyre appeared to be morally as +well as legally guilty of murder. Fitzjames appears to have felt that +the attempt to proceed further would look like a vindictive persecution; +and he ceased after this to take part in the case. He congratulated +himself upon this withdrawal when further proceedings (in 1868) led to +abortive results. + +One result was a coolness between my brother and J. S. Mill, who was +displeased by his want of sufficient zeal in the matter. They had been +on friendly terms, and I remember once visiting Mill at Blackheath in my +brother's company. There was never, I think, any cordial relation +between them. Fitzjames was a disciple of Mill in philosophical matters, +and in some ways even, as I hold, pushed Mill's views to excess. He +complains more than once at this time that Carlyle was unjust to the +Utilitarian views, which, in his opinion, represented the true line of +advance. But Carlyle was far more agreeable to him personally. The +reason was, I take it, that Carlyle had what Mill had not, an unusual +allowance of the quality described as 'human nature.' Mill undoubtedly +was a man of even feminine tenderness in his way; but in political and +moral matters he represented the tendency to be content with the +abstractions of the unpractical man. He seemed to Fitzjames at least to +dwell in a region where the great passions and forces which really stir +mankind are neglected or treated as mere accidental disturbances of the +right theory. Mill seemed to him not so much cold-blooded as bloodless, +wanting in the fire and force of the full-grown male animal, and +comparable to a superlatively crammed senior wrangler, whose body has +been stunted by his brains. Fitzjames could only make a real friend of a +man in whom he could recognise the capacity for masculine emotions as +well as logical acuteness, and rightly or wrongly Mill appeared to him +to be too much of a calculating machine and too little of a human being. +This will appear more clearly hereafter. + + +XI. INDIAN APPOINTMENT + +In the meantime Fitzjames was obtaining, as usual, some occasional +spurts of practice at the bar, while the steady gale still refused to +blow. He had an influx of parliamentary business, which, for whatever +reason, did not last long. He had some arbitration cases of some +importance, and he was employed in a patent case in which he took +considerable interest. He found himself better able than he had expected +to take in mechanical principles, and thought that he was at last +getting something out of his Cambridge education. Mr. Chamberlain has +kindly sent me his recollections of this case. 'I first made the +acquaintance of Sir J. F. Stephen' (he writes) 'in connection with a +very important and complicated arbitration in which the firm of +Nettlefold & Chamberlain, of which I was then a partner, was engaged. +Sir James led for us in this case, which lasted nearly twelve months, +and he had as junior the late Lord Bowen. The arbitrator was the present +Baron Pollock, assisted by Mr. Hick, M.P., the head of a great +engineering firm. From the first I was struck with Sir James Stephen's +extraordinary grasp of a most complicated subject, involving as it did +the validity of a patent and comparison of most intricate machinery, as +well as investigation of most elaborate accounts. He insisted on making +himself personally acquainted with all the processes of manufacture, and +his final speech on the case was a most masterly summary of all the +facts and arguments. In dealing with hostile witnesses he was always +firm but courteous, never taking unfair advantage or attempting to +confuse, but solely anxious to arrive at the truth. He was a tremendous +worker, rising very early in the morning, and occupying every spare +moment of his time. I remember frequently seeing him in moments of +leisure at work on the proofs of the articles which he was then writing +for the "Pall Mall Gazette." In private he was a most charming +companion, full of the most varied information and with a keen sense of +humour. Our business relations led to a private friendship, which lasted +until his death.' In 1868 he took silk, for which he had applied +unsuccessfully two years before. In the autumn of the same year he sat +for the first time in the place of one of the judges at Leeds, and had +the pleasure of being 'my Lord,' and trying criminals. 'It appears to +me,' he says, 'to be the very easiest work that ever I did.' The general +election at the end of 1868 brought him some work in the course of the +following year. He was counsel in several election petitions, and found +the work contemptible. 'It would be wearisome,' he says, 'to pass one's +life in a round of such things, even if one were paid 100_l._ a day.' +Advocacy in general is hardly a satisfactory calling for a being with an +immortal soul, and perhaps a mortal soul would have still less excuse +for wasting its time. The view of the ugly side of politics is +disgusting, and he acknowledges a 'restless ambition' prompting him to +look to some more permanent results. + +These reflections were partly suggested by a new turn of affairs. I have +incidentally quoted more than one phrase showing how powerfully his +imagination had been impressed by the Indian Empire. He says in his last +book[101] that in his boyhood Macaulay's 'Essays' had been his favourite +book. He had admired their manly sense, their 'freedom from every sort +of mysticism,' their 'sympathy with all that is good and honourable.' He +came to know him almost by heart, and in particular the essays upon +Clive and Warren Hastings gave him a feeling about India like that which +other boys have derived about the sea from Marryat's novels. The +impression, he says, was made 'over forty years ago,' that is, by 1843. +In fact the Indian Empire becomes his staple illustration whenever he is +moved to an expression of the strong patriotic sentiment, which is very +rarely far from his mind. He speaks in 1865 of recurring to an 'old +plan' for writing a book about India. I remember that he suggested to me +about that date that I should take up such a scheme, and was a good deal +amused by my indignation at the proposal. James Mill, he argued, had +been equally without the local knowledge which I declared to be +necessary to a self-respecting author. Several circumstances had +strengthened the feeling. His friend Maine had gone to India in 1862 as +legal Member of Council, and was engaged upon that work of codification +to which he refers admiringly in the 'View of the Criminal Law.' In +November 1866 Fitzjames's brother-in-law, Henry Cunningham, went to +India, where he was appointed public prosecutor in the Punjab. His +sister, then Miss Emily Cunningham, joined him there. Their +transplantation caused a very important part of Fitzjames's moorings (if +I may say so) to be fixed in India. It became probable that he might be +appointed Maine's successor. In 1868 this was suggested to him by Maine +himself, when he regarded it on the whole unfavourably; but during 1869 +the question came to need an answer. Against accepting the post was the +risk to his professional prospects. Although not so brilliant as could +be wished, they presented several favourable appearances; and he often +hoped that he was at last emerging definitely from his precarious +position. His opinion varied a little with the good or bad fortune of +successive circuits. He felt that he might be sacrificing the interests +of his family to his own ambition. The domestic difficulty was +considerable. He had at this time seven children; and the necessity of +breaking up the family would be especially hard upon his wife. Upon the +other hand was the desire for a more satisfying sphere of action. 'I +have been having a very melancholy time this circuit' (he writes to Miss +Cunningham, March 17, 1869). 'I am thoroughly and grievously out of +spirits about these plans of ours. On the whole I incline towards them; +but they not unfrequently seem to me cruel to Mary, cruel to the +children, undutiful to my mother, Quixotic and rash and impatient as +regards myself and my own prospects.... I have not had a really cheerful +and easy day for weeks past, and I have got to feel at last almost +beaten by it.' He goes on to tell how he has been chaffed with the +characteristic freedom of barristers for his consequent silence at +mess. It is 'thoroughly weak-minded of me,' he adds, but he will find a +'pretty straight road through it in one direction or another.' Gradually +the attractions of India became stronger. 'It would be foolish,' he +says, 'when things are looking well on circuit, to leave a really +flourishing business to gratify a taste, though I must own that my own +views and Henry Cunningham's letters give me almost a missionary feeling +about the country.' He reads books upon the subject and his impression +deepens. India, he declares, seems to him to be 'legally, morally, +politically, and religiously nearly the most curious thing in the +world.' At last, on May 11, while he is attending a 'thoroughly +repulsive and disgusting' trial of an election petition at Stafford, he +becomes sick of his indecision. He resolves to take a two hours' walk +and make up his mind before returning. He comes back from his walk clear +that it is 'the part of a wise and brave man' to accept such a chance +when it comes in his way. Next day he writes to Grant Duff, then Indian +Under-Secretary, stating his willingness to accept the appointment if +offered to him. He was accordingly appointed on July 2. A fortnight +later the Chief Justiceship of Calcutta, vacant by the resignation of +Sir Barnes Peacock, was offered to him; but he preferred to retain his +previous appointment, which gave him precisely the kind of work in which +he was most interested. + +He was pleased to recollect that the post on its first creation had been +offered to his father. Among his earliest memories were those of the +talks about India which took place at Kensington Gore on that occasion, +when Macaulay strongly advised my father to take the post of which he +soon became himself the first occupant. Fitzjames spent the summer at a +house called Drumquinna on the Kenmare river. Froude was his neighbour +at Dereen on the opposite bank, and they saw much of each other. In +November, after various leave-takings and the reception of a farewell +address on resigning the recordership of Newark, he set out for India, +his wife remaining for the present in England. + +FOOTNOTES: + +[Footnote 63: 'Bars of France and England,' _Cornhill Magazine_, p. 681, +August 1864.] + +[Footnote 64: He died June 22, 1861.] + +[Footnote 65: May 16, 1857.] + +[Footnote 66: I see from a contemporary note that Fitzjames attributes +an article upon Goethe in one of the first numbers to 'Froude, who wrote +the _Nemesis of Faith_'; but this appears to be only his conjecture.] + +[Footnote 67: I believe also that for many years he wrote the annual +summary of events in the _Times_.] + +[Footnote 68: A list was preserved by Fitzjames of his contributions to +the _Saturday Review_ and other periodicals of his time, which enables +me to speak of his share with certainty.] + +[Footnote 69: December 19, 1857.] + +[Footnote 70: See e.g. _Saturday Review_, January 3 and July 11, 1857, +'Mr. Dickens as a Politician,' and 'The _Saturday Review_ and Light +Literature.'] + +[Footnote 71: October 17, 1857.] + +[Footnote 72: Mr. Rogers's _Reminiscences_ (1888), 129-156, gives a full +and interesting account of this commission.] + +[Footnote 73: P. 130.] + +[Footnote 74: Captain Parker Snow has sent me the correspondence and +some other documents. An account of his remarkable career will be found +in the _Review of Reviews_ for April 1893. The case is reported in the +_Times_ of December 8, 1859.] + +[Footnote 75: _Liberty, Equality, Fraternity._] + +[Footnote 76: Reprinted in _Essays by a Barrister_.] + +[Footnote 77: See especially his article upon 'Jurisprudence' in the +_Edinburgh Review_ for October 1861.] + +[Footnote 78: Reprinted in _Essays by a Barrister_.] + +[Footnote 79: It is characteristic that although in April 1862 I find +him saying that he is at the end of 'two years of as hard and +unremitting work as ever he did in his life,' I am quite unable to make +out why the years should be limited to two: and certainly the work +became no lighter afterwards.] + +[Footnote 80: Chap. vi. in first edition, p. 69.] + +[Footnote 81: Dr. Williams printed privately some _Hints to my Counsel +in the Court of Arches_, of which Mrs. Williams has kindly sent me a +copy. He declares that he 'accepts the Articles as they are, and claims +to teach them with fidelity and clearness unsurpassed by living man.' No +one, I think, can doubt his perfect sincerity. The 'hints' probably +suggested some of the quotations and arguments in my brother's defence'; +but there is no close coincidence. Dr. Williams cordially expressed his +satisfaction with his counsel's performance.] + +[Footnote 82: _Defence_, pp. 19, 20.] + +[Footnote 83: _Defence_, p. 108.] + +[Footnote 84: The substance of much of this paper is given in an article +called 'Women and Scepticism' in _Fraser's Magazine_ for December 1863.] + +[Footnote 85: _Fraser's Magazine_, February 1864.] + +[Footnote 86: _Pall Mall Gazette_, October 2, 1867. I shall speak of his +contributions to this paper presently.] + +[Footnote 87: _Pall Mall Gazette_, November 26, 1868.] + +[Footnote 88: Mr. Froude promised me some recollections of this +intimacy; but the promise was dissolved by his death in 1894.] + +[Footnote 89: Preface.] + +[Footnote 90: See 'Bentham' in _Horæ Sabbaticæ_, iii. 210-229, published +originally about this time.] + +[Footnote 91: _View of Criminal Law_, p. 167.] + +[Footnote 92: E.g. _Works_, vii. 321, &c.] + +[Footnote 93: See articles on Courts-Martial in _Cornhill_ for June +1862.] + +[Footnote 94: _View of Criminal Law_, p. 232.] + +[Footnote 95: _View of Criminal Law_, p. 232.] + +[Footnote 96: One of his smartest phrases was occasioned by Mr. Greg +declaring himself to be a Christian. He was such a Christian, said +Fitzjames, as an early disciple who had admired the Sermon on the Mount, +but whose attention had not been called to the miracles, and who had +died before the resurrection.] + +[Footnote 97: Contributions of James Fitzjames Stephen to the _Pall Mall +Gazette_ (kindly sent to me by Mr. George Smith):-- + + Dates Articles Occasional notes Correspondence + 1865 143 103 8 + 1866 147 36 22 + 1867 194 27 9 + 1868 226 29 11 + 1869 142 5 -- + 1870 14 -- -- + 1872 112 3 2 + 1873 96 1 7 + 1874 39 2 8 + 1875 6 -- 5 + 1878 1 -- --] + +[Footnote 98: 'Liberalism,' January 1862.] + +[Footnote 99: Mr. Charles Buxton was the first chairman, but resigned +because he thought a prosecution of Governor Eyre inexpedient, though +not unjust. See J. S. Mill's _Autobiography_, pp. 296-299.] + +[Footnote 100: It is substantially given in his _History of the Criminal +Law_ (1883), i. 207-216.] + +[Footnote 101: _Nuncomar and Impey_, ii. 271.] + + + + +CHAPTER IV + +_INDIA_ + +I. PERSONAL HISTORY + + +Fitzjames reached Calcutta upon December 12, 1869. Henry Cunningham had +made the long journey from Lahore to pay him a few days' visit. The +whole time was devoted to an outpour of talk productive of boundless +satisfaction to one--I suppose that I may say to both--of them. +Fitzjames stayed in India until the middle of April 1872, and his +absence from England, including the homeward and outward journeys, +lasted for two years and a half. They were in some ways the most +important years of his life; but they were monotonous enough in external +incidents. I may briefly say that his wife joined him at Calcutta in the +beginning of March 1870, and accompanied him to Simla. They diverged to +pay a visit on the way to the Cunninghams at Lahore. They stayed at +Simla till the end of October, where, for five or six weeks in May and +June, Fitzjames was laid up with a sharp attack of fever. This was his +only illness in India, and the only interruption to work of more than a +day or two's duration. On his return to Calcutta he visited Delhi, +whence his wife returned to England for the winter. In April 1871 he +went again to Simla, and on the way thither was rejoined at Allahabad by +his wife. In the following November she returned to England, while he +remained to spend the winter of 1871-2 in Calcutta and finish his +official work. + +He started in the best of health and in a sanguine frame of mind. He +wrote his first letter to his mother from Boulogne (Nov. 9, 1869). 'I +cannot tell you,' he says, 'how perfectly happy I feel in all my +prospects. I never was more sure in my life of being right.... A whole +ocean of small cares and worries has taken flight, and I can let my mind +loose on matters I really care about.' He writes a (fourth) letter to +his mother between Paris and Marseilles in the same spirit. 'I don't +know whether you understand it,' he says, 'but if I had said "No" to +India, I should feel as if I had been a coward and had lost the right to +respect myself or to profess the doctrines I have always held and +preached about the duty of doing the highest thing one can and of not +making an idol of domestic comfort.' He continued to write to his mother +regularly, dictating letters when disabled from writing by his fever, +and the whole series, carefully numbered by her from 1 to 129, now lies +before me. He wrote with almost equal regularity to other members of his +family, of which he considered my sister-in-law, then Miss +Thackeray,[102] to be an adopted member; and occasionally to other +friends, such as Carlyle, Froude, and Venables. But to his mother he +always devoted the first part of the time at his disposal. The pressure +of work limits a few of these letters to mere assertions of his +continued health and happiness; but he is always anxious to tell her any +little anecdotes likely to interest her. I will give one of these, +because it is striking in itself, and his frequent references to it +showed how much it had impressed him. An English party, one of whom told +him the story, visited a wild gorge on the Brahmapootra, famous for a +specially holy shrine. There they fell in with a fakeer, who had +wandered for twenty years through all the holy places between the +Himalayas and Cape Comorin. He had travelled on foot; he had never lain +down, and only rested at night by putting his arms through the loop of a +rope. His body was distorted and his legs and arms wasted and painful. +He came with a set of villagers to the shrine which was to be the end of +all his wanderings; 'did poojah,' and so finished his task. The +villagers worshipped him, and prepared a feast and a comfortable bed; +but the fakeer looked sad and said, 'No! When I began my journey the +goddess Kali appeared to me and told me what I was to do. Had I done it +rightly, she would have appeared again to tell me that she was +satisfied. Now I must visit all the shrines once more,' and in spite of +all persuasion he set out for another twenty years' penance. 'I assure +you,' said the narrator, 'that I thought it very sad and did not laugh +in the least.' 'Was not that,' says Fitzjames, 'a truly British +comment?' + +These and other letters have one peculiarity which I shall not exemplify +by quotations. There are some feelings, as I find my father observing in +one of his own letters, which it is desirable 'rather to intimate than +to utter.' Among them many people, I think, would be inclined to reckon +their tender affections for members of their own family. They would +rather cover their strongest emotions under some veil of indirect +insinuation, whether of playful caress or ironical depreciation, than +write them down in explicit and unequivocal assertions. That, however, +was not Fitzjames's style in any case. His words were in all cases as +straightforward and downright as if he were giving evidence upon oath. +If he thinks ill of a man, he calls him bluntly a 'scoundrel' or 'a poor +creature,' and when he speaks of those who were nearest and dearest to +him he uses language of corresponding directness and energy. This method +had certainly an advantage when combined with unmistakable sincerity. +There could be no sort of doubt that he meant precisely what he said, or +that he was obeying the dictates of one of the warmest of hearts. But +point-blank language of this kind seems to acquire a certain impropriety +in print. I must ask my readers, therefore, to take it for granted that +no mother could have received more genuine assurances of the love of a +son; and that his other domestic affections found utterance with all the +strength of his masculine nature. 'I think myself,' as he sums up his +feelings on one occasion, 'the richest and happiest man in the world in +one of the greatest elements of richness and happiness'--that is, in the +love of those whom he loves. That was his abiding conviction, but I +shall be content with the general phrase. + +One other topic must be just touched. His daughter Rosamond was at this +time an infant, just learning to speak, and was with her mother at Simla +in both summers, where also his youngest daughter, Dorothea, was born in +1871. Many of the letters to his mother are filled with nursery +anecdotes intended for a grandmother's private reading, and certainly +not to be repeated here. I mention the fact, however, because it was +really significant. When his elder children were in the nursery, +Fitzjames had seen comparatively little of them, partly because his +incessant work took him away from home during their waking hours, and +partly because he had not been initiated into the charm of infantile +playfulness, while, undoubtedly, his natural stiffness and his early +stoicism made the art of unbending a little difficult. Under the new +conditions, however, he discovered the delightfulness of the relation +between a bright little child and a strong grown-up man--at any rate +when they are daughter and father. Henceforward he cultivated more +directly an affectionate intercourse with his children, which became a +great source of future happiness. + +His correspondence, though active enough, did not occupy all his leisure +on the journey. Parting from home, he says in a letter written in the +train near Calcutta to his old friend Venables, was 'like cutting the +flesh off my bones'; and ten minutes after beginning his solitary +journey from Boulogne, he had sought distraction by beginning an article +in the train. This was neither his first nor his last performance of +that kind during the journey. He goes on to say that he had written +twenty articles for the 'Pall Mall Gazette' between the days of leaving +England and of landing at Bombay. 'With that and law I passed the time +very pleasantly, and kept at bay all manner of thoughts in which there +was no use in indulging myself.' To pour himself out in articles had +become a kind of natural instinct. It had the charm, if I may say so, of +a vice; it gave him the same pleasure that other men derive from +dramdrinking. 'If I were in solitary confinement,' he says, 'I should +have to scratch newspaper articles on the wall with a nail. My appetite, +natural or acquired, has become insatiable.' When he had entered upon +his duties at Calcutta he felt that there were objections to this +indulgence, and he succeeded in weaning himself after a time. For the +first three or four months he still yielded to the temptation of turning +out a few articles on the sly; but he telegraphs home to stop the +appearance of some that had been written, breaks off another in the +middle, and becomes absorbed in the official duties, which were of +themselves quite sufficient to satiate any but an inordinate appetite +for work. + +Work, he says, is 'the very breath of my nostrils'; and he fell upon his +official work greedily, not so much in the spirit of a conscientious +labourer as with the rapture of a man who has at last obtained the +chance of giving full sway to his strongest desires. The task before him +surpassed his expectations. His functions, he says, are of more +importance than those discharged by the Lord Chancellor in England. He +compares himself to a schoolboy let loose into a pastrycook's shop with +unlimited credit. The dainties provided, in the way of legislative +business, are attractive in kind and boundless in quantity. The whole +scene impresses him beyond expectation and calls out all his powers. One +frequent subject of remark is the contrast between the work and the men +who have to do it. The little body of Englishmen who have to rule a +country, comparable in size and population to the whole of Europe +without Russia, seem to him to combine the attributes of a parish vestry +and an imperial government. The whole civil service of India, he +observes, has fewer members than there are boys at one or two of our +public schools. Imagine the Eton and Harrow boys grown up to middle age; +suppose them to be scattered over France, Spain, Italy, Germany, and +England; governing the whole population, and yet knowing all about each +other with the old schoolboy intimacy. They will combine an interest in +the largest problems of government with an interest in disputes as petty +as those about the rules of Eton and Harrow football. The society is, of +course, very small and mainly composed, as every society must be +composed, of commonplace materials. Writing to Miss Thackeray during the +outward voyage, he says that he will trespass upon her province and try +to describe his companions. Among them are a set of 'jolly military +officers 'who play whist, smoke and chaff, and are always exploding over +the smallest of jokes. They are not like the people with whom he has +hitherto associated, but he will not depreciate them; for they know all +kinds of things of which he is ignorant, and are made, as he perceives, +just of the 'right kind of metal to take India and keep it.' In a letter +to Venables, written a few months later, he describes his position as a +sort of 'Benthamee Lycurgus,' and sets forth the problem which he is +trying to solve in an official document then in course of preparation: +'Given corrupt natives, incompetent civilians, and a sprinkling of +third-rate barristers, how to get perfect judges.' His estimate, indeed, +of the merits of the Indian services, considered collectively, was the +highest possible. He speaks of them not merely with appreciation but +with an enthusiasm such as might have been generated in other men by a +life passed in India. In his last speech to the Council he said (and it +was no more than he said in private), 'I have seen much of the most +energetic sections of what is commonly regarded as the most energetic +nation in the world; but I never saw anything to equal the general level +of zeal, intelligence, public spirit and vigour maintained by the public +service of this country.' Nothing could gratify him so much as the +belief that he had in some degree lightened their labours by simplifying +the rules under which they acted. Still, taken individually, they were +average Englishmen, with rather less than the average opportunities for +general intellectual culture; and, like every other small society, given +to personal gossip, which was not very interesting to a grave and +preoccupied outsider. I find him on one occasion reduced to making +remarks upon a certain flirtation, which appears to have occupied the +minds of the whole society at Simla; but as the prophecy upon which he +ventures turned out to be wrong, there is a presumption that he had not +paid proper attention to the accessible evidence. + +He naturally, therefore, found little charm in the usual distractions +from work. The climate, though it did not positively disagree with him, +was not agreeable to him; and he found the material surroundings +anything but comfortable. 'I have here found out what luxury is,' he +said to a friend in Calcutta on his first arrival; 'it is the way in +which I used to live at home.' The best that could be done in India was +by elaborate and expensive devices to make up a bad imitation of English +comforts. 'As for the light amusements,' he says, they are for the most +part 'a negative quantity.' When he is passing the winter by himself in +Calcutta, he finds evening parties a bore, does not care for the opera, +and has nobody with whom to carry on a flirtation--the chief resource of +many people. He has, therefore, nothing to do but to take his morning +ride, work all day, and read his books in the evening. He is afraid that +he will be considered unsociable or stingy, and is indeed aware of being +regarded as an exceptional being: people ask him to 'very quiet' +parties. He sticks to his 'workshop,' and there he finds ample +employment. He was, indeed, too much in sympathy with Sir G. Cornewall +Lewis's doctrine that 'life would be tolerable but for its amusements' +not to find a bright side to this mode of existence. A life of labour +without relaxation was not far from his ideal. 'The immense amount of +labour done here,' he says, 'strikes me more than anything else. The +people work like horses, year in and year out, without rest or +intermission, and they get hardened and toughened into a sort of +defiant, eager temper which is very impressive.... I am continually +reminded of the old saying that it is a society in which there are no +old people and no young people. It certainly is the most masculine +middle-aged, busy society that ever I saw, and, as you may imagine, I +don't like to fall behind the rest in that particular.' He laboured, +therefore, hard from the first--even harder as time went on; and came to +feel the strongest sympathy with the energetic spirit of the body of +which he was a member. He made some valued friends in India; chief among +whom, I think, was Sir John Strachey, of whom he always speaks in the +warmest terms, and whose friendship he especially valued in later years. +Another great pleasure was the renewed intercourse with the Cunninghams, +who were able, in one way or another, to be a good deal with him. But he +had neither time nor inclination for much indulgence in social +pleasures. + +It will be seen, therefore, that the Indian part of my story must be +almost exclusively a record of such events as can take place within the +four walls of an office. I shall have nothing to say about +tiger-shooting, though Fitzjames was present, as a spectator, at one or +two of Lord Mayo's hunting parties; nor of such social functions as the +visit of the Duke of Edinburgh, though there, too, he was a looker-on; +nor of Indian scenery, though he describes the distant view of the +Himalayas from Simla, by way of tantalising an old Alpine scrambler. He +visited one or two places of interest, and was especially impressed by +his view of the shattered wall of Delhi, and of the places where his +second cousin, Hodson, had seized the king and shot the princes. He +wrote a description of these scenes to Carlyle; but I do not think that +he was especially strong in descriptive writing, and I may leave such +matters to others. What I have to do is to give some account of his +legislative work. I recognise my incompetence to speak as one possessing +even a right to any opinion upon the subject. My brother, however, has +left in various forms a very full account of his own performances,[103] +and my aim will be simply to condense his statements into the necessary +shape for general readers. I shall succeed sufficiently for the purpose +if, in what follows, I can present a quasi-autobiographical narrative. I +will only add that I shall endeavour to observe one condition, which I +know would have been scrupulously observed by him--I mean the condition +of not attributing to him any credit which would properly belong to +others. His work formed part of a process, carried on both by his +predecessors and successors; and it is not always possible to +distinguish his share from that of others.[104] + + +II. OFFICIAL WORK IN INDIA + +A demand for codification was among the traditions of the Utilitarians. +Bentham, born in 1748, had preached to deaf ears during the eighteenth +century; but in the first quarter of the nineteenth he had gathered a +little band of disciples, the foremost of whom was James Mill. The old +philosopher had gradually obtained a hearing for his exhortations, +echoed in various forms by a growing, confident, and energetic body, and +his great watchword was 'Codify.' He had found hearers in foreign +countries, especially in Russia, Spain, and various American States; +but his own countrymen had been among the last to listen. Gradually, +however, as the passion and prejudice of the war period passed away and +the movement which culminated in the Reform Bill of 1832 gathered +strength, it became apparent that the stubborn conservatism, even of the +great tacit corporation of lawyers, would have to yield. The supremacy +of Eldon was beginning to be shaken. Sir Robert Peel began to reform the +criminal law about 1827, taking up the work upon which Bentham's friend +and disciple, Romilly, had laboured for years with infinitesimal +results. Commissions were appointed to work upon legal reforms. With +parliamentary reform an era of rapid and far-reaching changes set in, +though Bentham died on the eve of entering the land of promise. + +When, therefore, the charter of the last India Company was renewed in +1833, it was natural that some place should be found for codification. +James Mill, upon whom Bentham's mantle had fallen, held a leading +position at the India House, and his evidence before a parliamentary +committee had an important influence in determining the outlines of the +new system. One of the four members of the Council of the +Governor-General was henceforth to be appointed from persons not +servants of the Company. He was to attend only at meetings for framing +laws and regulations. Macaulay, the first holder of this office, went to +India in 1834 and prepared the penal code. One of his assistants, C. H. +Cameron, was an ardent Benthamite, and the code, in any case, was an +accomplishment of Benthamite aspirations. This code, says Fitzjames, +'seems to me to be the most remarkable, and bids fair to be the most +lasting monument of its principal author. Literary fashions may change, +but the penal code has triumphantly stood the ordeal of twenty-one +years' experience; and, though composed by a man who had scarcely held a +brief, has been more successful than any other statute of comparable +dimensions.'[105] The code, however, slept for many years in a +pigeon-hole--a fact which Fitzjames considers[106] to be a most striking +proof of the reluctance of the English Government to interfere in any +way with native institutions. We rubbed on, it seems, with a sort of +compromise between English and Mahommedan criminal law until 1860, when +the code, after a careful revision by Sir Barnes Peacock, was finally +passed into law. That, says Fitzjames, was a singular piece of good +fortune. 'An ideal code ought to be drawn by a Bacon and settled by a +Coke'; it should combine the highest qualities of literary skill and +technical knowledge. Thus drawn, the code became the first specimen of +an 'entirely new and original method of legislative expression.' It +served as a model for all the later Indian codes. Its method is first to +state the 'leading idea' in the most pointed and explicit form; then to +give a definite explanation of any terms which admit of a possible +doubt; then to give equally definite exceptions; and, finally, to +illustrate the whole by applying it to a number of concrete cases.[107] +In Macaulay's hands the legal document, freed from the endless verbiage, +circumlocution and technicality of English statutes, became a model of +logical precision, and was even entertaining as a piece of literature. + +The passage of this code was part of a systematic process of +codification. An Indian Law Commission, sitting in England, had been +appointed in 1853 to carry on the work of consolidating the law. The +suppression of the mutiny and the dissolution of the Company were +naturally followed by various administrative and legislative reforms. A +code of civil procedure was passed in 1859, and a code of criminal +procedure, as a necessary supplement to the penal code, in 1861. In 1862 +Maine went out as legislative member of the Indian Council, and carried +on the work of codification in combination with a new Law Commission, +appointed in 1861. The Commission ultimately fell out with the Indian +Government, and finally resigned in 1870. They seem to have been of +opinion that there was undue delay in passing the bills which they +prepared. Meanwhile, Fitzjames took up various measures which had been +left incomplete, and carried them to completion. Before specifying them +so far as will be desirable, I must say something of the machinery by +which they were converted into law. + +This, as will be seen, greatly impressed Fitzjames by its total +dissimilarity to the process of legislation under our own parliamentary +system. The Legislative Council consisted, under an Act passed in 1861, +of the Viceroy, the Commander-in-Chief, the Governor of the province in +which the Council sits, of five ordinary members, and of additional +members--not less than six and not more than twelve in number--half of +whom must be non-official. The maximum number possible would therefore +be twenty. The Viceroy, the Commander-in-chief, and the five ordinary +members conducted the whole executive government of the country. The +'legislative department' consisted of a 'secretary to the council of the +Viceroy, for the purpose of making laws and regulations.' The secretary +during Fitzjames's tenure of office was Mr. Whitley Stokes, who had +already served under Maine. During Mr. Stokes's absence on leave for the +last year of Fitzjames's service, his place was taken by Henry +Cunningham. The member of Council and the secretary drew almost all the +bills required. It must be noticed that proposals for legislation were +not initiated by the department itself. This principle, says Fitzjames, +'was scrupulously observed both by Sir Henry Maine and myself.' They did +not originate a single measure, except those which repealed, +consolidated, and re-enacted existing laws. When a bill had been drawn +and introduced into Council, it was circulated to be criticised by the +local governments and by district officers, or by persons whose +interests might be affected. A special committee was appointed to go +through the Act, clause by clause, and consider the suggestions and +criticisms which had been received. In the case of one act, it is +mentioned that the materials thus collected formed a volume of 500 +closely printed pages of minute criticism upon every section of the +bill. The committee made such changes as appeared desirable in view of +these comments, and the bill, after being in some cases reprinted, +published, and circulated, was again brought before the Council. A +discussion then took place and amendments might be proposed. When these +had been accepted or rejected, the bill was passed and became law upon +receiving the assent of the Viceroy, though it might still be disallowed +by the Secretary of State in Council. + +A code, or even a measure which is to form part of a code, should be a +work of art--unequivocal in language, consistent in its logic, and +luminous in its arrangement. Like other works of art, therefore, it must +be essentially the product of a single mind. It is as impossible, as +Fitzjames often repeats, for a number of people to make a code as for a +number of artists to paint a picture. The legal artist requires, indeed, +to receive information from numerous sources, and to be carefully and +minutely criticised at every point by other experts and by the persons +whose interests are affected. But the whole can only be fused into the +necessary unity by passing through a single understanding. These +conditions were sufficiently secured by the preliminary processes just +described. Nor was there any risk that a measure should lose its +symmetry in the process of passing through the Council. The Council was +composed of men capable, on the one hand, of judging of the expediency +of the general policy involved, and willing, on the other hand, to trust +for details to the official in charge of the measure, without any desire +for captious interference with details. It consisted largely of men, +each of whom had important duties to discharge, and was anxious to +facilitate the discharge of duties by his colleagues. It was +emphatically a body which meant business, and had no temptation to +practise the art of 'not doing it.' + +There is a quaint contrast, therefore, between the reports of the +debates in Council and those which fill the multitudinous pages of +Hansard. The speeches, instead of being wordy appeals to constituents, +are (so far as one can judge from the condensed official Reports) brief +logical expositions of the leading principles involved, packing the +essential arguments into the briefest possible space. When a body such +as the British Parliament undertakes to legislate, it has certain +weaknesses too familiar to require much exposition. If a measure is not +adapted to catch the popular ear, it is lucky, however great may be its +real importance, in obtaining a hearing at all. It may be thrust aside +at any moment by some of the storms of excitement characteristic of a +large body agitated by endless party quarrels. Many of the legislators +are far less anxious to get business done than to get the doing of +business. Everyone who is crotchety, or enthusiastic, or anxious for +notoriety, or desirous to serve a party or please a constituency, may +set a hand to the work. A man, from the best of motives, may carry some +impulsive suggestion. The measure may be tortured and worried out of +shape by any number of alterations, moved without clear apprehension of +the effect upon the whole. Trifling details will receive an excessive +amount of elaboration, and the most important proposals be passed over +with precipitation, because the controversy becomes too heated and too +complicated with personal interests to be decided upon reasonable +grounds. The two evils of procrastination and haste may thus be +ingeniously combined, and the result may be a labyrinth of legislative +enactments through which only prolonged technical experience can find +its way. I need not inquire what compensations there may be in the +English system, or how far its evils might be avoided by judicious +arrangements. But it is sufficiently clear what impression will be made +upon anyone who tests a piece of legislative machinery by its power of +turning out finished and coherent work which will satisfy legal experts +rather than reflect the wishes of ignorant masses. + +I must now try to indicate more precisely the nature of the task in +which Fitzjames had to take a share. He gives a preliminary sketch in +one of his first speeches.[108] The law of British India was composed of +different elements, corresponding to the process by which the trading +company had developed into a sovereign power and extended its sway over +an empire. There were, in the first place, the 'regulations' made in the +three presidencies, Bengal, Madras, and Bombay, before the formation of +the Legislative Council in 1834. Then there were the acts of the +Legislative Council which had since 1834 legislated for the whole of +British India; and the acts of the subordinate legislatures which had +been formed in the two presidencies in 1861. Besides these there were +executive orders passed by the Governor-General in Council for the +'non-regulation' provinces (the North-western Provinces, the Punjab, +Oudh, the Central Provinces, and Burmah). These had more or less +introduced the same laws into the regions successively annexed, or such +an approximation to those laws as was practicable, and dictated +according to an accustomed formula by 'justice, equity, and good +conscience.' Certain doubts existed as to the precise legal character of +these orders. Their validity had been confirmed by the Act of 1861, but +for the future all legislation was to be carried on by the councils. The +laws were less numerous and complex than might be inferred from this +enumeration. Some were temporary in their nature and others repealed +previous legislation. The first thing to be done was to ascertain what +laws were actually operative; to repeal the useless and obsolete; and +confirm others which, though useful, might be of doubtful validity. It +would then become possible to consolidate and codify; so that for every +subject there might be a single enactment, and for every province a +single body of laws. Much had been already accomplished in this +direction under Lord Lawrence when Maine was the legal member of +Council; and preparations had been made for carrying the process +further. + +The measures in which Fitzjames was more or less concerned were made +necessary by these conditions. The old Bengal regulations, made from +1793 to 1834, are said to have been 'eminently practical and useful.' +But they were made from time to time with a view to particular cases; +and their language presupposed familiarity with a variety of facts, as +to the position and mutual relations of the different members of the +service, and so forth, which were constantly changing as the Company +developed, acquired new functions, and redistributed the duties of its +subordinates. Such a process naturally left room for gaps in the system +which might reveal themselves with awkward results at critical moments. +Thus it turned out in the course of investigations made by the +legislative department that nearly every criminal trial which had taken +place in Bengal and the North-western Provinces since 1831 had been +irregular. The result was that 'people had gone on being hung, +transported, and imprisoned illegally for a period of probably nearly +forty years.' No substantial injury had resulted, but as legal +proceedings multiplied it was possible that awkward questions might be +raised. An Act was therefore passed in a day (May 12, 1871) sanctioning +the system which had actually grown up, and confirming the previous +Acts. Another illustration of the intricacy of the existing system was +given by the law as to the Civil Courts in Bengal. To discover what was +the constitution of these courts you would have, says Fitzjames (Feb. +10, 1871) to begin by reading Regulations III. and IV. of 1793, and to +find out that, though most of them had been repealed, little bits of +each remained in force. You would then have to note that, although these +bits applied only to a certain small district, they had been extended in +1795 to certain other specified places, and in 1803 to the district +ceded by the Nawab Nazim. What that district was might be ascertained +from historical records. Continuing such inquiries, you might discover, +after consulting thirteen Acts and Regulations, what was the actual +state of things. People, of course, really learnt such points by +practice and conversation, though their knowledge would probably be in a +nebulous condition. The whole system was put upon a clear footing in an +Act of thirty-eight sections, prepared by Mr. Cockerell, which was +passed on February 10, 1871. + +In these cases I imagine that the effect of the legislation was mainly +to clear up the existing order and substitute a definite accessible law +for a vague rule of thumb. Elsewhere more serious problems were +involved. Upon the annexation of the Punjab in 1849 it was necessary to +establish at once a vigorous and cheap system of government. Lord +Lawrence, with his brother Henry and Mr. Mansel, were formed into a +Board of Administration, and entrusted with dictatorial power. They were +instructed to adopt as nearly as possible the system of law which has +existed in the North-Western Provinces. That system, however, was vague +and cumbrous, and it was impracticable to introduce it into the new +province, which required far more rough and ready methods. Lord Lawrence +and his colleagues proceeded therefore to draw up regulations. Though +these were necessarily crude and imperfect in the eyes of a thorough +lawyer, they made it possible to introduce settled order and government, +and were the first approach to codes in India. There remained, however, +serious differences of opinion as to the degree of legal authority to +which they were entitled. + +Two of these codes were of great importance. In 1853 Sir Richard Temple +had prepared a handbook, under the direction of Lord Lawrence, which +came to be known as the 'Punjab Civil Code.' It was a lucid statement, +although made by one who was not a specially trained lawyer, of the law +supposed to exist in the Punjab, with expositions of parts of the Hindoo +and Mohammedan law. The question however, had never been finally settled +whether it was merely a text-book or had acquired the force of law by +the use made of it and by incidental references in official despatches. +It included, for example, a kind of bankruptcy law, under which large +amounts of property had been distributed; although, according to some +opinions, the whole process was illegal. Conflicting views were held by +high authorities. 'As many as six or seven degrees of inspiration had +been attributed to different parts of the code,' said Fitzjames (March +26, 1872), 'as to the relation in which they stood to the rest.' In +short, a book originally intended as a guide to administrators of the +law had come to be a 'sort of semi-inspired volume,' with varying +degrees of 'infallibility.' Moreover, as it led to much litigation and +many discussions, it had swelled from a small volume into 'one of those +enormous receptacles of notes, comments, sections of Acts, and general +observations which pass in England under the name of legal text-books.' +(September 5, 1871.) In order to clear up the confusion, Mr. D. G. +Barkley had been directed by the Lieutenant-Governor of the Punjab to +prepare a volume containing all the regulations which were supposed to +have actually the force of law. Many of these were only accessible in +official archives. This volume filled 408 closely printed pages, besides +various schedules. When carefully examined by Fitzjames this was reduced +to an act of fifty-eight sections, and the question as to authority +finally set at rest. + +A still more important part of the Punjab administration dealt with the +land revenue. This, of course, touches the most vital part of the whole +system of British government. A famous 'Regulation, VII. of 1822,' had +laid down the general principles of land-revenue law. But it was in +itself ambiguous, and there were great doubts as to whether it extended +to the Punjab, or whether the administrators of the Punjab had full +power to lay down such rules as they pleased, subject only to the +direction to take the regulation for a model as far as applicable. +Different views were taken by the courts of law and by the governors; +some opinions would tend to show that the whole series of administrative +acts had been illegal, and out of this difficulty had arisen an +acrimonious controversy in 1868 upon Punjab tenancy. Meanwhile various +'instructions' had been issued by the executive, and two books, written +by Mr. Thomason, gave directions to 'settlement officers' and +'collectors.' These, says Fitzjames, were 'almost if not quite the best +law-books that have ever come under my notice.' They were, however, +written from an administrative, not from a legal point of view. In order +to ascertain the actual state of things Mr. Robert Cust was instructed +to draw up a revenue-code, and forwarded his draft to the legislative +department in 1870. The law, as Mr. Cust stated in this document, was +'in a state of lamentable and, to those not trained to the study, +unintelligible confusion.' His draft contained 1261 sections, filling +216 quarto pages of small type. It was swelled, however, by a large +quantity of detail, dealing with matters which might be left to the +discretion of executive officers. The draft was carefully considered by +a committee, including the most experienced officials, and in +consultation with the actual revenue authorities in the Punjab. A +measure of moderate dimensions was framed in accordance with their views +and passed on October 30, 1871. One of the critics of the bill observed +that it had been thus reduced to a 'set of affecting commonplaces.' +Fitzjames replies that, in point of fact, the bill was meant precisely +to lay down general principles, leaving details to be settled by the +local authorities. One proposal made by him which, as Sir R. Temple +observed, showed his 'breadth of view and root and branch grasp of the +subject,' indicates the importance of the matter. Substantially it was +to make the record of rights, established for the purposes of the +revenue, a conclusive evidence (under certain precautions) of the titles +of the various persons interested in the land. This was modified on the +ground that it was not suited to the tastes of the natives; who, it was +said, rather preferred that matters should be left 'at a loose end,' +instead of being definitely wound up once for all. This Act, together +with the Act previously mentioned, put an end to 'one of the strangest +pieces of intricacy and confusion to be found in Indian law.'[109] + +Another enactment curiously illustrates some practical results of the +undefined degree of authority of the laws in the Punjab. Four hundred +years ago--so runs a possibly mythical legend--a certain man was +ploughing in a field. The wife of a rich banker was bathing not far off, +and laid her necklace of pearls on the bank. A crow took it up and +dropped it in the ploughman's field. He presented it to his wife, and +proceeded to reason upon the phenomenon. The fowls of the air, he +reflected, neither ploughed nor sowed, but they managed to pick up +valuables. Why should he not show a similar trust in Providence? He +resolved to set up as a freebooter, made proselytes, and finally became +the ancestor of a clan. His tribe were moral and decent people at home; +they had their religious rites, initiated their children solemnly, and +divided their earnings on system. After setting aside 3-3/4 per cent. +for the gods, 28 per cent. was divided between the chief and the thief, +while the remainder went to the tribe at large. Their morality, however, +was conterminous with the limits of the clan. They considered themselves +to be in Hobbes's 'state of nature,' with regard to other men. They +wandered far and wide through India, and made enough to live in greater +comfort than could be got out of legitimate occupations. They were only +one among other more important and dangerous tribes of criminals, who +adopted the same judicious principle of carrying on their operations at +a distance from their homes. The Punjab government had dealt with these +tribes by registering them, compelling them to live within certain +limits, and settling them upon waste lands. It had been discovered, +however, that these regulations were beyond the powers of the executive. +The system had to be abandoned and the tribes promptly returned to their +old practices. When members of another well-known criminal tribe were +arrested on the eve of one of their operations, they were set at liberty +by a judicial decision. The proof, it appears, ought to have conformed +to the precedent set by certain trials of Fenians in England. A measure +was therefore introduced giving power to restore the system which had +been previously successful; and sanctioning similar measures in regard +to a more atrocious set of criminals, certain eunuchs who made a system +of kidnapping children for the worst purposes. It was passed October 12, +1871. + +The case illustrates the most obvious difficulties of our position in +India. I suppose that the point of view of Thugs and of these +respectable robbers seems perfectly obvious and natural to them; but the +average Englishman cannot adopt it without a considerable mental effort. +In such cases, however, we might at least reckon upon the support of +those who suffered from predatory tribes. But there was another +department of legislation in which we had to come into conflict with the +legal and religious ideas of the great mass of the population. The +British rulers of India had been, with sufficient reason, exceedingly +cautious in such matters. Their power might crumble to pieces, if it +were once believed that we intended to assail directly the great +religions of the country, and in India law, custom, and religion are +only different aspects of the same thing. In certain cases we had at +last resolved to suppress practices which offended the European code of +morals. Under the Bengal regulations, the practice of burning widows had +been forbidden. Another series of Acts began by the passage of an Act in +1850 which provided that no one should suffer any legal forfeiture of +rights for having ceased to belong to any religious community. This Act +was passed in face of vehement opposition and petitions signed by 60,000 +natives in and around Calcutta. It practically pledged us to maintain +freedom of conscience in matters of religion. It was followed by other +measures involving the same principle. In 1856, the re-marriage of +Hindoo widows was legalised, and in 1866, native converts to +Christianity were enabled to obtain a divorce from wives or husbands who +abandoned them in consequence of their religious change. Another Act of +1865, drawn by the Indian Law Commission, regulated the law as to +succession to property and the testamentary powers of persons who were +not members of any of the native religious communities, and thus +recognised that such people had a legitimate legal status. From another +application of the same principles arose a proposal in regard to which +Fitzjames had to take a conspicuous part. It formed the subject of a +very warm debate in the Council, the only debate, indeed, which faintly +recalls English parliamentary discussions. Fitzjames, in particular, +made two speeches which suggest that he might have been an effective +party-leader, and are, in various ways, so characteristic that I must +notice them at some length. + +The sect of Brahmos, founded by Ram Mohun Roy, was one result of the +influence of European ideas on India. It had come to be the most +important movement of the kind. It roughly corresponds, I imagine, to +English Unitarianism, being an attempt to found a pure theistic religion +without the old dogmatic system. Like almost all religious movements, it +might be considered either as an innovation or as an attempt to return +to a primitive creed by throwing off the corrupt accretions. The sect, +like others, had split into two bodies, the conservative Brahmos, who +wanted to put new wine into old bottles, and the progressive Brahmos, +who desired new bottles as well as new wine. Both of them disapproved in +different degrees of the Hindoo ceremonials. The question had arisen +whether they could form legal marriages, and the doubts had been rather +increased than diminished by an opinion obtained by the progressive +Brahmos from the Advocate-General, Mr. Cowie. Thereupon they applied to +Government. Maine, who was then (1868) in office, came to the conclusion +that they had had a real grievance. Their creed, briefly, would +disqualify them from marrying, whereas we were committed to the +principle that varieties of creed should entail no civil +disqualifications. Maine accordingly prepared a bill to remove the +injustice. He proposed to legalise the marriage of all persons (not +Christian) who objected to conform to the rites of the various religions +of the country. The knot would be cut by introducing civil marriage into +India generally for all who preferred it. This proposal, however, met +with general disapproval when the draft was circulated among the local +authorities. The ground of objection was that it would introduce too +great a change into native customs. It would enable a man to 'play fast +and loose' with his religion; to cease, for example, to be a Hindoo for +the purpose of marrying, and to be a Hindoo again when he had married. +The Government admitted that this objection was conclusive. + +When Fitzjames became member of Council, the matter was still under +discussion, and it became his duty to prepare a bill, which he +introduced to the Council in March 1871. This measure avoided the +difficulty by providing a form of marriage for the Brahmos alone. To +this, however, he found to his surprise that the conservative Brahmos +objected. The essential difficulty was that of every 'denominational' +system. The bill would give a certain legal status to a particular sect. +We should then be bound to provide similar measures for any new sects +that might arise and for marriages between adherents of different +creeds. There would have to be a 'jungle of marriage acts.' And besides +this there would be the difficulty of defining by law what a Brahmo +precisely was--whether the Progressives or the Conservatives were the +real Brahmos, and so forth. Finally, Fitzjames resolved to bring in an +Act resembling Maine's, but with this difference, that anyone who took +advantage of it must declare that he (or she) was neither a Hindoo, nor +a Mohammedan, nor a Parsee, nor a Sikh, nor a Jaina, nor a Buddhist, nor +a Christian, nor a Jew.[110] This measure would be applicable to any +persons whatever who might hereafter abandon their traditional religion, +but it would not enable anyone to break the laws of a religion to which +he still professed to belong. + +Fitzjames explained his views very fully upon introducing the measure on +January 16, 1872. The debate was then adjourned, and upon March 19 other +members of the Council made various criticisms to which he again replied +at some length. These two speeches give the fullest statement of his +views upon a very important question. They deal in part with some purely +legal questions, but I shall only try to give the pith of the views of +policy which they embody. I may briefly premise that the ground taken by +his opponents was substantially the danger of shocking native +prejudices. The possibility that the measure would enable rash young men +to marry dancing-girls out of hand was also noticed, but, I fancy, by +way of logical makeweight. It was admitted that the Brahmos had a +claim, but it was strongly urged that it would be enough if, in +accordance with the former proposal, an act were passed dealing with +them alone. One member of the Council, I notice, complains that the +demand is associated with talk about 'nationality,' 'fraternity,' and +'equality'--a kind of talk for which Fitzjames had remarkably little +sympathy. It is of the more importance to point out what were the +principles which he did admit. His main contention was simple. Maine, he +said, was absolutely right in deciding that, where an injustice was +proved to exist, we should not shrink from applying a remedy. 'I think +that one distinct act of injustice, one clear instance of unfaithfulness +to the principles upon which our government of India depends, one +positive proof that we either cannot or will not do justice to all +classes, races, creeds or no-creeds, in British India would in the long +run shake our power more deeply than even financial or military +disaster. I believe that the real foundation upon which the British +Empire in this country rests is neither military force alone, as some +persons cynically assert' (though such power is no doubt an +indispensable condition of our rule), 'nor even that affectionate +sympathy with the native population, on which, according to a more +amiable, though not, I think, a truer view of the matter, some think our +rule ought to rest--though it is hardly possible to overrate the value +of such sympathy, where it can by any means be obtained. I believe that +the real foundation of our power will be found to be an inflexible +adherence to broad principles of justice common to all persons in all +countries and all ages, and enforced with unflinching firmness in favour +of, or against, everyone who claims their benefit or who presumes to +violate them, no matter who he may be. To govern impartially upon these +broad principles is to govern justly, and I believe that not only +justice itself, but the honest attempt to be just, is understood and +acknowledged in every part of the world alike.' + +In the next place the principle of religious equality, 'properly +understood, is just as much one of these principles as the principle of +suppressing war, famine, and crime.' Properly understood it means that +all sects are to be encouraged and, if necessary, are to be compelled to +live in peace with each other; and not to injure those who change their +religion. This is the principle, moreover, which we have practically +adopted, and which is indeed necessary under the circumstances. The +native marriage law is 'personal,' not territorial. It depends upon a +man's religion, not upon the place of his abode. Hence you must choose +between forbidding a man to change his religion and permitting him to +change his law. But to forbid conversion would be obviously impossible, +and we in fact allow Christian converts to change their legal status. +Why is not a similar liberty to be granted to others who have abandoned +their religion? Because Christianity is true and all other religions +false? That would be the only relevant answer, and many people would +really like to give it; but it is refuted by stating it. We cannot +attack the Hindoo or Mohammedan religions. If, therefore, we took this +ground, we should simply have a conspiracy of four or five dominant +sects, each denouncing the others as false, but all agreeing to worry +and oppress all outsiders. Such a position is impossible for us. The +real objection to the bill was simply that it recognised the fact that +many persons had abandoned their religion; and also recognises the fact +that they had a right to abandon it. + +Here, then, is one of the cases in which the argument from native +opinion must be faced. 'It is a grave thing to legislate in opposition +to the wishes of any section of the native community; but it is also a +grave, a very grave thing for the Government of India deliberately to +abstain from doing that which it has declared to be just and right.' If +you help the Brahmos alone, what will you say to the 'radical league,' +which repudiates all religious belief? When they ask to have their +marriages legalised, will you reply, 'You are a small body, and +therefore we will do you an injustice'? This is one of the ultimate +points which we are forced to decide upon our own convictions. Religious +liberty and equality can be no more reconciled with Hindoo and +Mohammedan orthodoxy than with some forms of Catholicism. But it is +impossible to say that we will not do that which we admit to be urgent +because we are afraid of orthodox Mohammedans and Hindoos. And here is +the answer to one member who made light of telling a converted young man +of enlightened mind that, unless he saw his way to being a Christian, he +might be ordered to conform to the customs of his forefathers. It was +better that he should make the sacrifice, than that the minds of the +masses should be disquieted. Was there, he asked, any real hardship in +that? Yes, replies Fitzjames, there would be the greatest and most cruel +injustice. 'It would be a disgrace to the English name and nation.' A +young man goes to England and wins a place in the Civil Service. He +learns from an English education to disbelieve in his old creeds; and +when he goes back you tell him that he shall not be capable of marriage +unless he will either falsely pretend to be a Christian, or consent to +have his tongue burned with a red-hot iron and drink cow's urine in +order to regain his caste. One of the native correspondents had +complained rather naïvely that the law would be used to enable a man to +escape these 'humiliating expiations.' Would they not be far more +humiliating for English legislation? What did you mean, it would be +asked, by your former profession that you would enforce religious +equality? What of the acts passed to secure the immunity of all converts +from legal penalties? Were they all hypocritical? I would rather submit +to the displeasure of orthodox Hindoos, says Fitzjames, than have to +submit to such taunts as that. 'The master objection against the bill, +of which the rest are but shadows, and which unites in opposition to it +men who mutually denounce each other's creeds, and men who despise those +who care enough about religion to be unwilling to call that sacred which +they hold to be a lie, is that it will encourage unbelief.' That may be +a fair argument from Hindoos and Mohammedans; but it is strange in the +mouths of those who maintain missionary societies and support schools +and colleges--English education 'leads straight away from all points of +native orthodoxy.' 'How can we sow the seed and refuse to recognise the +crop?' When we have shut up our schools, renounced our famous +legislation, permitted infanticide and _suttee_, we may get credit for +sincerity in the objection; 'till then people will say that what we +really fear is not the spread of unbelief, but the hostility of +believers.' For such hypocrisy Fitzjames could never feel anything but a +righteous contempt. + +I must now turn to the important legislative measures which were more +essentially a part of the general system of codification. A code of +civil procedure had been passed in 1859, and codes of criminal law and +criminal procedure in 1860 and 1861. The Indian Law Commission had also +prepared laws upon contract and evidence, which were still under +consideration; Fitzjames had to carry the process one stage further. In +regard to the famous Penal Code, of which he always speaks with +enthusiasm, his action was confined to filling up a few omissions. The +case of a convict in the Andaman Islands, for example, who had made a +desperate attempt to murder a gaoler, and could receive no further +punishment because he was already sentenced to imprisonment for life, +the maximum penalty for attempts to murder, suggested a flaw. Such +offences were henceforth to be punishable by death. The only point of +general interest was the case of seditious libels. A clause, prepared +for the original bill, had been omitted by an unaccountable accident. +Maine had already been in correspondence with Sir Barnes Peacock upon +this subject in 1869. When, however, in the summer of 1870, Fitzjames +proposed the insertion of a clause, it was supposed that he had hastily +prepared it in consequence of certain reported disturbances in the +previous spring. He was, therefore, taunted with having been a member of +the 'fourth estate,' and now desiring to fetter the liberty of the +press. He therefore confessed, and it must be admitted that it required +less courage in him than it had required in his grandfather to confess, +to the sin of having written for the newspapers. In point of fact, +however, as he pointed out, the proposed section, which was from the +original draft of the case as framed by the Commission, was less severe +than the English law. Briefly, a man was to be punishable for writings +of which it was the obvious intention to produce rebellion. A journalist +might freely abuse officials and express disapproval of a particular +measure, such, for example, as a tax. The disapproval, again, might tend +to general disaffection. But unless there were a direct intention to +stimulate resistance to the law, he would not be guilty. Fitzjames +thought that to invoke the phrase 'liberty of the press' in order to +permit direct provocatives to crime, whether against the public or +against individuals, was a grave misapplication of popular phrases. + +Upon another closely connected subject, Fitzjames, if he originated +little, spent a very great deal of labour. The Penal Code had been +necessarily followed by a Code of Criminal Procedure, which defined the +whole system of the English administration of justice in India.[111] +Courts of justice had been gradually introduced when the British +establishments were mere factories, and had gradually grown up, as our +power increased and the borders of the empire widened, into a most +elaborate and complex organisation. Although, in a general way, the +English institutions had served as a model, it had diverged very far +from its originals. The different classes of Indian magistrates are +carefully graded; there is a minute system for subordinating the courts +to each other; they are superintended in every detail of their procedure +by the High Courts; and, in brief, the 'Indian civilians are, for the +discharge of all their judicial and other duties, in the position of an +elaborately disciplined and organised half-military body.' Such words +would obviously be inapplicable to the English magistrate. While, +therefore, the Penal Code was in the main a version of English law, the +Code of Criminal Procedure defined the various relations and processes +of an official body entirely unlike anything existing in England. + +The code originally passed in 1861 had been amended by an Act of 1869, +and Fitzjames observed (June 28, 1870) that he proposed a reform which +was 'almost typographical.' The two laws might, as the Law Commission +had suggested, be combined in one by slightly altering their +arrangement; though the opportunity might be taken of introducing 'a few +minor alterations.' On December 9 following, however, he announces that +he has now examined the code and had never read 'a more confused or +worse-drawn law' in his life. He proceeds to show by various +illustrations that the subjects treated had been mixed up in such a way +as to make the whole unintelligible. He had been obliged to put off the +attempt to understand it till he could get information from outside. He +had, however, prepared a draft of the bill, and a Committee was +appointed to consider it. The measure did not finally come before the +Council until April 16, 1872. He then observes that he has not had the +presumption to introduce 'modifications of his own devising into a +system gradually constructed by the minute care and practical experience +of many successive generations of Indian statesmen.' He has regarded +himself 'less as the author of the bill than as the draftsman and +secretary of the committee by whom all the important working details +have been settled.' He has been in the position of the editor of a +law-book, arranging as well as he could, but not introducing any new +matter. To attempt any sudden changes in so complex a machinery, which +already strains so severely the energies of the small number of +officials employed in working it, would be inevitably to throw the whole +out of gear. + +This committee, he says,[112] which included men of the widest Indian +experience, such as Sir G. Campbell, Sir R. Temple, and Sir John +Strachey, met five days in the week and usually sat five hours a day, +and the process continued for 'some months.' They discussed both +substance and style of every section, and examined all the cases decided +by the courts which bore upon the previous code. These discussions were +all carried on by conversations round a table in a private room. 'The +wonderfully minute and exact acquaintance with every detail of the +system' possessed by the civilians 'made an ineffaceable impression' +upon his mind. They knew, 'to a nicety, the history, the origin and +object of every provision in the code.' The discussions were +consequently an 'education not only in the history of British India but +in the history of laws and institutions in general. I do not believe,' +he says, 'that one act of Parliament in fifty is considered with +anything approaching to the care, or discussed with anything approaching +to the mastery of the subject with which Indian Acts are considered and +discussed.' When the committee had reported, the code was passed into +law 'after some little unimportant speaking at a public meeting of the +Council,' (which turned, I may say, principally upon the question of the +policy of allowing native members of the service to sit in judgment upon +Europeans). 'This was possible, because in India there are neither +political parties nor popular constituencies to be considered, and +hardly any reputation is to be got by making speeches. Moreover, +everyone is a man under authority, having others under him.' + +A condensed account of the code and the institutions which it regulates +will be found in Fitzjames's 'History of the Criminal Law,' from which I +quote these words: 'If it be asked,' he says, 'how the system works in +practice, I can only say that it enables a handful of unsympathetic +foreigners (I am far from thinking that if they were more sympathetic +they would be more efficient) to rule justly and firmly about +200,000,000 persons of many races, languages, and creeds, and, in many +parts of the country, bold, sturdy, and warlike. In one of his many +curious conversations with native scholars, Mr. Monier Williams was +addressed by one of them as follows: "The Sahibs do not understand us or +like us; but they try to be just and do not fear the face of man." I +believe this to be strictly true.' 'The Penal Code, the Code of Criminal +Procedure, and the institutions which they regulate, are somewhat grim +presents for one people to make to another, and are little calculated +to excite affection; but they are eminently well calculated to protect +peaceable men and to beat down wrongdoers, to extort respect and to +enforce obedience.' The code was re-enacted in 1882 under the care of +Mr. Whitley Stokes. It was then extended to the High Courts, which had +been previously omitted, and alterations were made both in arrangement +and in substance. Of these alterations Fitzjames says that he does not +consider them to be improvements; but upon that point I am not competent +to form any opinion. + +Closely connected with the subject of procedure was another which was +treated in his most original and valuable piece of legislation. The +Indian Law Commission had in 1868 sent out the draft of an 'Evidence +Act,' which was circulated among the local governments. It was +unanimously disapproved as unsuitable to the country. It presupposed a +knowledge of English law, and would not relieve Indian officials from +the necessity of consulting the elaborate text-books through which that +law was diffused. Fitzjames, therefore, prepared a new draft, which was +considered by a committee in the winter of 1870-1, and after their +report at the end of March was circulated as usual. It was finally +passed on March 12, 1872, and a full account of the principles is given +in his speeches of March 31, 1871, and March 12, 1872. I have already +spoken of his treatment of the law of evidence in the 'View of the +Criminal Law.' I will here point out the special importance of the +subject under the conditions of Indian legislation. In the first place, +some legislation was necessary. An Evidence Act, already in existence, +embodied fragments of English law. It would still be in force, inasmuch +as English officials were directed, according to the sacred formula, to +decide by 'equality, justice, and good conscience.' These attractive +words meant practically 'an imperfect understanding of an imperfect +recollection of not very recent editions of English text-books.' +Something might be said for shrewd mother-wit, and something for a +thorough legal system. But nothing could be said for a 'half and half +system,' in which a vast body of half-understood law, without +arrangement and of uncertain authority, 'maintains a dead-alive +existence.' We had therefore to choose between a definite code, +intelligible to students, who would give the necessary attention, and no +code at all. The Evidence Bill, said one eminent colleague, ought to +consist of one clause: 'all rules of evidence are hereby abolished.' +Against this attractive proposal Fitzjames argues substantially as he +had argued in the 'View.' Rules of some sort have always been found +necessary. Daniel's feeble 'cross-examination of the elders in the case +of Susannah' illustrates the wonder with which people once regarded +methods of testing evidence now familiar to every constable. In later +periods all manner of more or less arbitrary rules had been introduced +into simple codes, prescribing, for example, the number of witnesses +required to prove a given fact. The English system, although the product +of special historical developments, had resulted in laying down +substantially sound and useful rules. They do in fact keep inquiries +within reasonable limits, which, in courts not guarded by such rules, +are apt to ramble step by step into remoter or less relevant topics, and +often end by accumulating unmanageable masses of useless and irritating +scandals. Moreover, they would protect and guide the judges, who, unless +you prohibited all rules whatever, would infallibly be guided by the +practice of English courts. To abolish the rules of evidence would be +simply to leave everything 'to mere personal discretion.' Moreover, the +rules have 'a real though a negative' value as providing solid tests of +truth. The best shoes will not enable a man to walk nor the best glasses +to see; and the best rules of evidence will not enable a man to reason +any better upon the facts before him. It is a partial perception of this +which has caused the common distrust of them. But they do supply +'negative' tests, warranted by long experience, upon two great points. +The first is that when you have to make an inference from facts, the +facts should be closely connected in specified ways with the fact to be +decided. The second is, that whatever fact has to be proved, should be +proved by the best evidence, by the actual document alleged, or by the +man who has seen with his own eyes or heard with his own ears the things +or the words asserted to have occurred. + +If, however, these rules are substantially the expressions of sound +common sense, worked out by practical sagacity, it is equally true that +'no body of rules upon an important subject were ever expressed so +loosely, in such an intricate manner, or at such intolerable length.' +The fact is that the intricate and often absurd theory by which they are +connected came after the 'eminently sagacious practice' which the theory +was intended to justify. English lawyers, by long practice in the +courts, acquire an instinctive knowledge of what is or is not evidence, +although they may have hardly given a thought to the theory. The English +text-books, which are meant for practical purposes, are generally +'collections of enormous masses of isolated rulings generally relating +to some very minute point.' They are arranged with reference to 'vague +catchwords,' familiar to lawyers, rather than to the principles really +invoked. One of the favourite formulæ, for example, tells us, 'hearsay +is no evidence.' Yet 'hearsay' and 'evidence' are both words which have +been used in different senses ('evidence,' for example, either means a +fact or the statement that the fact exists), and the absence of any +clear definitions has obscured the whole subject. + +Now as Indian officials have to manage very difficult investigations, +with no opportunity for acquiring the lawyer's instinct, and without the +safeguard afforded in England by a trained bar, thoroughly imbued with +the traditions of the art, they were in special need of a clear, +intelligible code. By 'boiling down' the English law, and straining off +all the mere technical verbiage, it would be possible to extract a few +common-sense principles and to give their applications to practice in +logical subordination and coherence. That which seems to be a labyrinth +in which it is hopeless to find the way until experience has generated +familiarity with a thousand minute indications at the various turning +points, may be transformed, when the clue is once given, into a plan of +geometrical neatness and simplicity. + +This was what Fitzjames endeavoured to do for the Indian law of +evidence. When the draft was circulated the utility of the work was +generally admitted in the reports returned, but some hostile criticisms +were also made. One gentleman, who had himself written upon the subject, +remarked that it had been apparently constructed by going through +'Taylor on Evidence,' and arbitrarily selecting certain portions. To +this Fitzjames replied that every principle, applicable to India, +contained in the 1508 royal octavo pages of Taylor, was contained in the +167 sections of his bill, and that it also disposed fully of every +subject treated in his critic's book. He accounts for the criticism, +however, by pointing out that the limits of the subject had been very +ill defined, and that many extraneous matters belonging properly, for +example, to the law of procedure, had been introduced. A code which +diverges from the general principles into the particular kind of +evidence required in various cases, might spread into every department +of law. Fitzjames, however, partly met his critic by admitting certain +additions of too technical a nature to be mentioned. I may observe that +one source of the intricacy of the English law was avoided. In England, +at that time, the erroneous admission or rejection of a single piece of +evidence might have made it necessary to try the whole Tichborne case +over again. In India this had never been the case, and it was provided +that such errors should not be ground for a new trial unless it were +proved that they had caused a substantial failure of justice. I will +only add that Fitzjames, as before, endeavoured in an 'introduction' to +connect his legal theory with the logical doctrines of Mill. He was +criticised in a pamphlet by Mr. G. C. Whitworth which he admits to be +judicious, and afterwards corrected his definitions accordingly.[113] He +did not think his principle wrong, but considered the form to be +inconvenient for practical application. Upon this, however, I need not +here dwell.[114] + +Two other important measures of codification were passed during +Fitzjames's tenure of office. The 'Limitation of Suits' Act, passed +March 24, 1871, was, as he stated, entirely due to Mr. Whitley Stokes. +Fitzjames expressed his high admiration for it in a speech in which he +takes occasion to utter some characteristic denunciations of the +subtleties of English law, connected with the subject of this Act. Did +human memory run to the year 1190, when Richard I. set out on the third +crusade, or to 1194, when he returned? That was one of the problems +propounded by Lord Wensleydale, who for many years devoted +extraordinary powers of mind to quibbles altogether unworthy of him. +There is no more painful sight for a man who dislikes the waste of human +energy than a court engaged in discussing such a point. Four judges, +with eminent counsel and attorneys, will argue for days whether +Parliament, if it had thought of something of which it did not think, +would have laid down an unimportant rule this way or that. It would have +been better for the parties to the suit to toss up, and leave the most +convenient rule to be adopted for the future. + +The 'Contract Act' had been prepared by the Indian Law Commission, and +had been under discussion for five years. The final revision had taken +place in the winter of 1871-2, and Fitzjames specially acknowledges the +help of two colleagues in the Legislative Council, Messrs. Bullen Smith +and Stewart, gentlemen engaged in business at Calcutta. The subject is +too technical for me to approach it. One point may just be mentioned: If +a man steals a cow, and sells it to an innocent purchaser, who is to +suffer the loss when the theft is discovered? The original owner, said +the Law Commission. The purchaser, said the Legislative Council. +Stealing cows is one of the commonest of Indian offences--so much so +that it is a regular profession to track stolen cattle. But if the buyer +has a good title to the cow, unless he knows it to be stolen, the +recovery would be generally impossible. Cattle-stealers would flourish, +and would find an asylum in our territory, where the law would differ +from that of the native states. This appears to indicate one of the +subjects of discontent of the Law Commission, who desired to pass +measures unsuitable, according to the Indian Government, to the +conditions of the country. + +I have now mentioned, I think, the most important measures in which +Fitzjames was concerned, whether as having framed the original draft or +simply as officially responsible for the work of others. He had, of +course, more or less share in many other Acts, some of much importance. +Little more than a month after his arrival he had to introduce a bill +upon Hindoo wills; and, in speaking on the occasion, elaborately +discussed its relation to Hindoo theories as to property, and especially +as to the right of creating perpetuities. This speech appears to have +made a very strong impression upon his hearers. In the last months of +his residence he had charge of a bill upon oaths and declarations, which +suggests some curious points of casuistry. What, for example, is to be +done in regard to people who believe that they will be damned if their +sworn statements are inaccurate, unintentionally or otherwise, and who, +inferring that damnation is tolerably certain, argue that they may as +well tell a big lie as a small one? How, again, is a European to +appreciate the value of an oath made upon a cow's tail or a tiger's +skin? I will not go into such discussions, noting only that he seems to +have been profoundly interested in them all. + +Fitzjames, of course, served upon many committees, and had to attend to +the current business of his office. In the last three or four months of +his stay, the larger measures which I have mentioned were finally passed +into law. The Punjab Land Revenue Act was passed on October 30, 1871; +the Evidence Act on March 12, 1872; the Native Marriages Act on March +19; the Punjab Laws on March 26; the Contract Act on April 9; and the +Criminal Procedure Act on April 16. In proposing the passage of the +Contract Act he took occasion to give his view of the result which had +so far been reached in the direction of codifying the Indian laws. It +might be said, in a summary way, that consolidation was nearly +satisfactory in regard to 'current legislation,' that is, legislation +required with a view to particular cases. In regard to 'procedure,' the +process of codification was complete, with two or three exceptions. It +would be complete when the code of civil procedure had been re-enacted; +when the revenue procedure in the Central Provinces had been regulated, +and another measure or two passed. Finally, the 'substantive law' +includes many most important subjects--the laws of inheritance, for +example, and the land laws, which are determined by the native customs, +and which, for obvious reasons, we cannot touch. When two or three gaps +to which he pointed (the law of 'Torts,' for example) had been filled, +we should have as much codification as 'would be required for a length +of time.' The Statute Law of India would then be comprised in four or +five octavo volumes, and the essential part of it in five or six Acts, +which might be learnt in a year of moderate industry. A young civilian +who knew the Penal Code, the Succession Act, the Contract Act, the two +Procedure Codes, the Evidence Acts, the Limitation Act, and the Land +Revenue Acts of his province would know more than nineteen barristers +out of twenty when they are called to the bar; and all this would go +into a moderately sized octavo volume. His successor, he thought, would +be able to accomplish all that was required. He observes, however, +emphatically, that a process of re-enactment would be always required. +It is necessary to keep laws steadily up to date, having regard to +decisions of the courts upon new cases, and to any legislative changes. +No important Act should be left without amendments for more than ten or +twelve years. A constant process of repairing is as necessary to a +system of legislation as it is to the maintenance of a railway. + +I am, as I have already said, incompetent to form any opinion as to the +intrinsic value of these codes. One able critic, Sir C. P. Ilbert, in +the 'Law Quarterly,' observes that their real merit is that they were +'suitable and sufficient for the needs which they were intended to meet. +What was urgently needed for India was a guide for the judge or +magistrate who has had no legal training, who derives little or no +assistance from the bar, and who has to work at a distance from a law +library.' Fitzjames's legislation, he thinks, was 'admirably adapted' +for advancing the previous Indian system a step further; although his +codes might not meet the requirements of the present generation of +English lawyers. Sir C. P. Ilbert, I may add, speaks very strongly of +the 'educational value' of the Contract Act in particular, as shown by +his experience of Indian Civil Service examinations. He thinks that +Fitzjames's other writings and codes have a similar merit. A gentleman +of high judicial position and very great Indian experience has expressed +to me his high admiration of the Evidence Act. It is, he says, 'a +wonderful piece of work, boiling down so much into so small a compass.' +It is 'an achievement to be proud of,' although parts of it, he adds, +are open to criticism, and especially to the criticism that it is 'over +the heads of those who have to deal with it.' It presupposes outside +knowledge which they often do not possess. These criticisms do not +altogether coincide, and I shall not endeavour to reconcile or +discriminate. I am content to say that I have heard on all hands, from +persons qualified to express an opinion here, that Fitzjames's work made +a marked impression upon Indian legislation, and, with whatever +qualifications, is admitted to have been of very great service to the +administrators of the country. + +I shall venture, however, to add a word or two upon the qualities, +mental and moral, thus displayed. Sir C. P. Ilbert says that Fitzjames +was a 'Cyclopean builder. He hurled together huge blocks of rough-hewn +law. It is undeniable that he left behind him some hasty work,' which +his successors had to remove and replace. In half the ordinary term of +office he did work enough for five law members, and 'left the +Legislative Council breathless and staggering,' conscious of having +accomplished 'unprecedented labours,' but with some misgivings as to the +quality of parts of the work. Fitzjames, that is, was a man of enormous +energy, who fulfilled only half of the famous maxim; he laboured +'without rest,' but not 'without haste.' As for the energy displayed, +there can, I imagine, be only one opinion.[115] And if unflagging zeal +in doing the duty which lies nearest, and an entire devotion of a man's +whole powers of mind to what he sincerely believes to be a great and +worthy task, be not virtues deserving of all respect, I do not know what +qualities are entitled to that name. A vigorous constitution of mind and +body applied to the discharge of appropriate duties describes a most +felicitous combination of circumstances, and indicates a character which +I, at least, cannot regard without cordial admiration. It is true that +he loved his work; but that is just what constitutes his merit. I might +express my feeling more strongly if I were less closely connected with +its object. + +The direction, though not the extent, of the shortcomings of such an +intellectual force may be easily imagined. If there was one thing which +Fitzjames hated it was needless subtlety, and the technicalities which +are the product of such subtlety--the provision of a superfluous logical +apparatus, which, while it gives scope for ingenuity, distracts the mind +from the ends for which it is ostensibly designed. I have quoted enough +to show the intensity of his longing for broad, general, common-sense +principles, which was, indeed, his most prominent intellectual +characteristic. Now a code should, as I take it, like the scientific +classification of any other subject-matter, combine this with +intellectual excellence at the opposite pole. The scientific +classification, when once made, should appear, as the botanists say, to +be natural, not artificial. If fully successful, it should seem as if it +could not but have been made, or as if it made itself. Every subdivision +should fall spontaneously into its right place without violence or +distortion. The secret of achieving such a result is, I suppose, the +selection of the right principles of division and subdivision from the +first. When it appears that any given object refuses to fit itself +conveniently into any one of our pigeon-holes, its obstinacy may betray +a defect in the original system; and the code, like other artistic +wholes in which every part has some definite relation to every other, +may require a remanipulation throughout. Now, if I understand +Fitzjames's intellectual temperament rightly, this indicates the point +at which his patience might begin to fail. When he met with some little +specimen which would not go of itself upon any of his previous +arrangements, he would be apt to treat it with disrespect, and possibly +to jam it in with too rough and ready a hand into the nearest +compartment. In so doing he might really be overlooking the indication +of a fault in the system, reaching further than he suspected. An +apparent subtlety may really correspond to an important distinction, and +an outward simplicity be attained at the cost of some internal discord. +In short, the same kind of defect which prevented him from becoming an +accurate classical scholar, or from taking a sufficient interest in the +more technical parts of his profession, would show itself in the +delicate work of codification by a tendency to leave raw edges here and +there in his work, and a readiness to be too easily satisfied before the +whole structure had received the last possible degree of polish. Thus I +find, from various indications which I need not specify, that some of +his critics professed to have discovered flaws in his work, while he +honestly thought the criticism superfine, and the errata pointed out +such as concerned a mere corrector of the press rather than a serious +legislator for practical purposes. But I must not even attempt to +conjecture which was right and which was wrong, nor how far there might +be right and wrong upon both sides. + + +III. INDIAN IMPRESSIONS + +These rather vague presumptions must take the place of any deliberate +estimate of the value of Fitzjames's achievements in India. I must, +however, say something more of the impression made upon his own mind. I +have already indicated some of the convictions suggested to him by his +experience, and I shall have to speak in the next chapter of the book in +which he endeavoured to set forth their application to political +principles in general. Here I will summarise his view of the special +principles of Indian legislation. It is given very emphatically in Sir +W. W. Hunter's 'Life of Lord Mayo,' and will, I think, materially +elucidate his position in regard to certain wider problems. + +He observes, in the first place, that the legislative department had +been accused of over-activity and of a desire to introduce English law +with too little regard to native ideas. The chief legislative reform +required for India, he was often told, was the abolition of the +legislative department--an assertion which, I should guess, when made +in his presence, must have given rise to some rather lively discussions. +He thought that this view rested mainly upon certain prejudices very +generally entertained though not often stated in precise words. Many +civilians really objected to government by law, holding that in India +law should be overridden by 'equity,' or, briefly, that the district +officers should decide by their own views of each particular case. Such +persons, again, frequently held that the British rule had succeeded to +the absolute power of the old native states, and that the vigour of the +executive should be fettered by as few laws as possible. This feeling +had been strengthened by the fact that the old supreme courts were +originally established as a check upon the powers of the Government. The +two powers came to be regarded as in a position of natural antagonism, +and nothing struck him more than the conviction of the older members of +the service that lawyers were their natural enemies, and the law a +mysterious power with the special function of trammelling executive +action. Various little encounters in the Legislative Council testify to +this difference of sentiment. When he explained to a military officer of +rank the power conferred by the Criminal Tribes Act, mentioned above, +the officer replied, 'It is quite a new idea to me that the law can be +anything but a check to the executive power.' The same sentiment +underlay the frequent complaints of the want of 'elasticity' of the law. +When brought to a point these complaints always related to certain +regulations for taking down and recording evidence. What was really +desired by the persons concerned was elasticity in the degree of +attention which they might pay to their most important duties. So an +officer complained that he could not punish certain persons whom he knew +to be murderers, though witnesses were afraid to appear. What he really +wanted, it was implied, was power to put people to death on the secret +information of irresponsible witnesses. + +Hence, the first question is whether India should be governed by law or +by merely personal discretion. Baseless as the 'discretion' theory may +be, it has a strong unavowed influence. And yet it is the very specific +difference of our rule that it is rule by law and not despotism. +Englishmen could have no desire simply to set up a new despotism +differing from the old only in being administered by Englishmen instead +of natives. The moral difference is unmistakable. Decisive government by +law gives the only real security for life or property, and is the +indispensable condition for the growth of wealth. Nor is a compromise +more possible between law and despotism than between straight and +crooked. The essence of one system is that no one shall suffer in person +or property except according to law. The essence of the other is that +security of person and property is dependent upon the will of the ruler. +Nowhere is this shown more clearly than in India. The remedy of the +poorest peasant in the country against any wrongful action of the +Government in India is far clearer and more simple than the remedy of +the richest and most influential man against the Government in +England.[116] + +The absolute necessity of government by law is shown, however, most +strikingly by a process going on throughout the country--the growth of +private rights, and especially of rights in land. Under the old despotic +systems, the place of law was taken by a number of vague and fluctuating +customs, liable to be infringed at every moment by the arbitrary fancies +of the rulers. Society was 'worn to the bone.' It had become an +aggregate of villages, each forming a kind of isolated units. In some +districts even the villages had been broken up and no political +organisation remained except that between landholders and individual +husbandmen, which was really a relation between oppressors and +oppressed. Elsewhere, there was a chaos of village communities, +dominated by the most inorganic and ill-defined of aristocracies and +monarchies. The village communities are decaying, and, in spite of +regrets prompted by various reasons, they decay because they represent a +crude form of socialism, paralysing to individual energy and +inconsistent with the fundamental principles of our rule. The cardinal +duty which we have to discharge in India is to keep the peace. The +villages formed self-contained communities, each regulating its own +affairs, and bound by loose customs, leading to quarrels which could +only be settled by blood-feuds and the strong hand. Strict laws and a +rigid administration of justice are incompatible with such modes of +determining disputes between man and man and village and village. The +communities, therefore, break up when the law admits of no coercive +action except its own. If we will not allow a man to gather his friends, +arm them with bludgeons, and march out to settle a boundary dispute with +a neighbouring village, we must settle the boundary ourselves, and we +must settle it by distinct rules--that is, we must enforce laws. Peace +and law go together, as violence and elastic custom go together. Now we +must keep the peace, and, therefore, we must rule by law. + +Rule by law, however, though necessary, is not a necessary evil but an +invaluable benefit. Laws are necessary to vigorous administration. When +Lawrence and his colleagues undertook to rule the Punjab, it was a +popular notion that they ruled by mere personal discretion. The fact, as +already noticed, was the very reverse. Their first step was to establish +far better, simpler, and more scientific systems of law than were in +force in the older provinces. Moreover, and this is one of Fitzjames's +most characteristic theories, 'the establishment of a system of law +which regulates the most important part of the daily life of a people +constitutes in itself a moral conquest, more striking, more durable, and +far more solid than the physical conquest which renders it possible. It +exercises an influence over the minds of the people in many ways +comparable to that of a new religion.' This is the more significant +because the instructed natives who study the laws, both Mohammedan and +Hindoo, have been accustomed to identify law and religion. 'Our law is, +in fact, the sum and substance of what we have to teach them. It is, so +to speak, the gospel of the English, and it is a compulsory gospel which +admits of no dissent and of no disobedience.' Finally, if Government +does not make laws, each officer or group of officers will have to make +their own. Practically they will buy a few English law-books and apply +them in a servile way to the cases which turn up. + +India, then, must be ruled by law. By what law? Shall we endeavour to +govern on native principles and by native agency? To this theory, which +has attracted many friends, he replies, No; first, because Indian ideas +about government are wrong; they are proved to be wrong by experience, +which shows that they led to anarchy and demoralisation; and, secondly, +because they have produced men and institutions unfit for government. +If, therefore, we tried to rule by Oriental methods and agents, we +should either make ourselves responsible for their oppressions, or we +should have to keep them in order, and that is to rule by law. We +should, again, have to watch perpetually over the mass of personal +intrigue which is the 'curse of every despotic state.' We should require +a large native army and live under a perpetual threat of mutiny. In +fact, the mutiny of 1857 really represented the explosion and the +collapse of this policy. Finally, we should have to choose between +Mohammedans and Hindoos, and upon either alternative a ruler not himself +belonging to the religion comes into inevitable conflict with their +fundamental principles. + +We have, then, no choice but to rule by law and to frame laws upon +European principles. Here, it is necessary to guard against +misunderstandings which have given rise to the charge of +over-legislation. 'European principles' mean those principles which have +been shown by our experience to be essential to peace, order, wealth, +and progress in arts and sciences. 'No one,' says Fitzjames, 'can feel +more strongly than I do the madness of the smallest unnecessary +interference with the social habits and religious opinions of the +country. I would not touch one of them except in cases of extreme +necessity.' But the simple introduction of peace, law, order, free +competition for wealth and honour, with an education to match, will +inevitably cause a social revolution. By merely suppressing violence and +intestine war, you produce such a revolution in a country, which has for +centuries been the theatre of disorder and war, as surely as by damming +a river you produce a lake. You must look after the security of your +dams under penalty of fearful disasters. + +Hence the great problem of the English in India is to see that this +inevitable revolution, at the head of which they have been placed, shall +run in the proper channels and produce good results. What will be the +ultimate result passes the wit of man to say. That India should +reproduce Europe in religious morals and law seems highly improbable; +but whatever changes take place will depend upon other causes than +legislation. The law can only provide a convenient social framework. The +utmost that we are entitled to say is that the maintenance of peace, +order, and the supremacy of a law, which leaves all religious inquiries +to find their own level, and is founded upon temporal expediency, is an +indisputable condition of the only kind of benefits which it is in our +power to confer upon India. + +The conclusion, then, follows that so much legislation is not only +justifiable but necessary as will provide for the following +objects:--the firm establishment of our power; the recognition and +enforcement of the principles which it represents; and the vigorous +administration of the government. Such legislation should be earned out, +however much opposed either to European or to native principles. But all +legislation, not required for these purposes, is mischievous and +dangerous. The limits thus defined in general terms can only be +precisely marked out by experience. But 'no law should be made till it +is distinctly perceived and felt to be necessary. No one can admit more +fully or feel more strongly than I do the evils and dangers of mere +speculative legislation in India.' + +Fitzjames proceeds to argue that these principles have in fact guided +our Indian legislation. No Government was 'ever less justly chargeable +with enacting laws merely for the sake of legislation.' The faults have +arisen from defects of style and from the peculiar conditions of Indian +administration. The unwritten law of India is mainly personal; and many +difficulties have arisen from the mixture of English law with the +Mohammedan and Hindoo laws and other native customs. All cases not +otherwise provided for were to be decided by justice, equity, and good +conscience. Much latitude of decision was thus left to the Indian judges +upon matters not included in the written law. The practical result of +thus 'throwing the reins on the neck of judges,' the first body of whom +had no professional training, was to produce a vague uncertain feeble +system,' combining the defects of 'a weak grasp of principle with a +great deal of occasional subservience to technicality.' English +professional lawyers occasionally seem to acquire a specially vigorous +grasp of principles, to which they have had to force their way through a +mass of confused precedent and detail. But the 'unprofessional judge +seldom gets beyond a certain number of illustrations and rules, more or +less imperfectly understood.' Hence the special necessity in India of +reducing the laws to the clearest and most explicit shape possible, or, +in other words, for the codifying process in which he had played his +part. Sir W. W. Hunter remarks in a note that the evils indicated here +have been remedied to some extent, 'partly through the influence which +his (Fitzjames's) views have exercised' in India, by a greater +separation between the judicial and the executive branches of the +service. + +One of Fitzjames's most remarkable pieces of work is a 'Minute on the +Administration of Justice in British India,' containing his remarks upon +the subject mentioned by Sir W. W. Hunter. It was originally written in +the summer of 1870, as a comment upon a large mass of opinions obtained +from the local governments. It was revised in 1871, and published[117] +just before he left India in 1872. The desirability of separating the +judicial from the executive functions of the civilians had been long +under discussion, and very various opinions had been held. In this +minute Fitzjames summarises these, and gives his own view of the points +on which he considered himself able to form an opinion. Many of the +questions raised could only be answered to any purpose by men who had +had long practical experience of administration. Fitzjames, however, +gives a careful account of the actual systems of the various provinces: +discusses how far it is possible or desirable to separate the functions; +whether a 'special judicial branch of the civil service' should be +created; whether any modification would be desirable in the systems of +civil or criminal procedure; and what practical suggestions should be +followed, having regard to economy and to an increased employment of +natives. I cannot even attempt to describe his arguments. I will only +say that the minute appears to me to be a very remarkable production, +not only as indicating the amount of labour bestowed, amid so many other +occupations, upon the important questions discussed; but as one of his +best performances as a very clear and terse account of a complicated +system with a brief but exceedingly vigorous exposition of what he +thought should be the governing principles of any reforms. He held, I +may say, in a general way that there were some evils which required a +remedy; especially those resulting from the frequency of appeals in the +Indian system and the elaborate supervision of the magistrates by the +High Courts. He recognises imperfections inherent and excusable in the +attempt to administer justice to so vast a population by a small body of +foreigners with very imperfect legal training; though he shows his usual +admiration for the general results of British government, and thinks +that the efficiency of the service may be secured by moderate reforms. +Incidentally he goes over many of the points already noticed as touched +in his speeches. I have, however, said as much as is desirable in regard +to his general principles as expounded in the minute and in the 'Life of +Lord Mayo.' Every one of the legislative measures in which he was +concerned might be regarded as an illustration of one or more of these +propositions. To me it seems that they represent at least a definite +policy, worthy of his common sense and general vigour of mind. A +generalisation from these principles came to constitute his political +creed in later years. + + +IV. LAST MONTHS IN INDIA + +I must now speak of an event which made a very strong impression upon +him. He concludes the chapter from which I have been quoting by +declaring that of the many public men whom he had met in England and +India, there was none to whom he 'felt disposed to give such heartfelt +affection and honour' as to Lord Mayo. Lord Mayo, he says, though +occupied in many other ways, had shown the 'deepest personal interest' +in the work of the legislative department, and, when difficulties arose, +had given to it the warmest, most ardent, and most effective support. It +was chiefly due to Lord Mayo that the Government was able to pass the +important acts of the beginning of 1872, especially the three great +measures: the 'Civil Procedure Code,' the 'Contract Act,' and the +'Evidence Code.' I hope, says Fitzjames to Sir W. W. Hunter, that you +will be able to make people understand 'how wise and honest and brave he +was, and what freshness, vigour, and flexibility of mind he brought to +bear upon a vast number of new and difficult subjects.' On January 24, +1870, Lord Mayo left Calcutta in H.M.S. 'Glasgow' to visit, among other +places, the convict settlement at the Andaman Islands. He landed there +on February 8, and while getting into his boat to return was murdered by +a convict. The body was brought back to Calcutta on February 19, where +it lay in state for two days at Government House, before being sent for +burial to his native country. In one of his last letters to his mother, +Fitzjames gives an account of the ceremonies at Calcutta, which +incidentally illustrates, I think, more forcibly than anything else, the +impression produced upon him by India generally. I shall therefore give +most of it, omitting a few comparatively irrelevant details. I will only +observe that nobody had less taste for public performances of this kind +in general--a fact which shows the strength of his feelings on this +particular occasion. + +'I never expected,' he writes (February 23, 1872), 'to be impressed by a +mere ceremonial; but there were some things almost oppressive from their +reality and solemnity.... The coffin was brought up on a gun-carriage. +It was of enormous size and weight, (near two tons, I believe). The +gun-carriage, drawn by twelve artillery horses, made a strangely +impressive hearse. It looked so solid, so businesslike, so simple, and +so free from all the plumes and staves and rubbish of undertakers. About +thirty picked sailors from the "Daphne" and "Glasgow" walked behind and +by the side; all dressed in clean white trousers and jerseys, and +looking like giants, as indeed they were. They were intensely fond of +Lord Mayo, who had won their hearts by the interest he took in them and +in the little things they got up to amuse him.... He passed the last +evening of his life sitting with Lady Mayo on the bridge of the +"Glasgow," and laughing at their entertainment with the greatest +cordiality. They wanted to be allowed to carry the coffin on their own +shoulders; they said they were ready and willing to do it, and I believe +they would have been able, ready, and willing to do anything that +strength and skill and pluck could do. Behind them walked the +procession, which was nearly three-quarters of a mile long, and +contained every Englishman of any importance in Calcutta and a +considerable number of natives. The whole road was lined with troops on +both sides: but they stood at intervals of several yards, and there was +an immense crowd close behind and, in some places in between them.... If +there had been any other fanatics in the crowd, there was nothing to +prevent them from making a rush and giving a stab.... If there had been +any attempt of the kind, I cannot say what might not have happened. +People were in such an excited and half-electric state that there might +have been a general riot, which would soon have become very like a +massacre. One man told me that on his way home, he felt possessed by +such fury against anyone who might be connected with the murder, that he +walked with a kind of charge through a group of people, who looked as if +they enjoyed "the show," and gave a shove to a big Mohammedan who looked +insolent, at which, he said, "the man went down like a bag of feathers." +I saw some suspicious-looking fellows grinning and sneering and showing +their teeth myself, and I felt as if I could have killed them. No one +who has not felt it can imagine how we all feel out here in regard to +such matters. When Lord Mayo was stabbed, I think every man in the +country felt as if he had been more or less stabbed himself. + +'The procession went on with the most overwhelming solemnity (nothing +short of these words can describe it), till we got to Government House. +There was a dead silence nearly all the way; the natives standing or +squatting in their apathetic way, and the Europeans as grim as death. +All that was to be heard was the rattle of the gun-carriage, and the +tramping of the horses, and the minute-guns from the fort and ships. The +housetops, the windows, the fort were all crowded with people, but all +as still as death. I think the ships looked as sad as anything. There +were two miles of noble ships in the Hooghly. Their flags were all +flying half-mast high, and they had all "tossed their yards."' (He +draws a rough diagram to explain the phrase). 'The yards are all in +disorder, and the effect is forlorn and dishevelled to a degree you +would not imagine. When we got to Government House, the coffin had to be +lifted off the gun-carriage and pulled up a long flight of wide stone +steps.... The sailors and a few artillerymen did it all in perfect +silence, and with an amount of strength that looked almost marvellous.' +The coffin was placed on a truck, to which the sailors harnessed +themselves, and dragged it up an inclined plane (formed over the steps) +with no apparent effort in spite of the enormous weight. It was taken +along a suite of rooms, 'hung with black, and lighted with a curious +simplicity and grandeur.' Here, again, the coffin had to be lifted, and +'it was most striking to see the absolute silence with which the men +moved the monstrous weight at a sign from the captain's hand.' The only +sound was when a spar snapped in the hands of a 'giant of a fellow, who +was lifting with it. There was a respectful delicacy in every motion of +these men which combined beautifully with their immense, quiet, +controlled strength, and impressed me very much. After a few prayers we +left.' + +On Wednesday, the 21st, the coffin was again removed to the ship. The +imprudence of the former procession had struck everyone. The streets +were cleared and no one admitted to the jetty except the procession. +'You cannot imagine the awful solemnity which all this precaution gave +the whole thing. It was like marching through a city half-dead and +half-besieged.' Nothing was to be seen but troops; and, 'when we got +into Dalhousie Square, there was a battery of artillery firing +minute-guns, and drawn up on the road just as if they were going to +fight. Two or three bands played the Dead March the whole way, till I +felt as if it would never get out of my ears. At the end of the jetty +lay the "Daphne." ... The sailors, with infinite delicacy and quiet, +draped the coffin carefully with its flags ... and it was raised and +lowered by a steam-crane, which, somehow or other, they managed to work +without any sound at all. When the ship steamed off down the river, and +the minute-guns stopped, and I drove home with Henry Cunningham, I +really felt as I suppose people feel when an operation is over. There +was a stern look of reality about the whole affair, quite unlike what +one has seen elsewhere. Troops and cannon and gun-carriages seem out of +place in England, ... but it is a very different matter here, where +everything rests upon military force. The guns and the troops are not +only the outward and visible marks of power, but they are the power +itself to a great extent, and it is very impressive to see them. + +'It gives a sort of relief to one,' he adds, 'that after all Lord Mayo +was, in a sense, going home: that he (so far as one can speak of his +dead body) was leaving this country with all its various miseries, to +return to his own native place. If one is to have fancies on such a +matter, it is pleasant to think that he is not to lie here in a country +where we can govern and where we can work and make money and lead +laborious lives; but for which no Englishman ever did, or ever will, or +can feel one tender or genial feeling.[118] The work that is done here +is great and wonderful; but the country is hateful.' + +One singular incident was connected with this event. The murderer had +been tried on the spot and sentenced to death. The sentence had to be +confirmed by the High Court at Calcutta. It was there discovered that +the judge had by some mistake recorded that the European witnesses had +'affirmed' according to the form used for native religions, instead of +being sworn according to the Christian formula. Fitzjames was startled +to hear of this intrusion of technicality upon such an occasion; and +held, I think, that in case of need, the Government of India should +manage to cut the knot. Ultimately, however, some of the witnesses who +were at Calcutta made affidavits to the effect that they had really been +sworn, and the sentence was confirmed and executed. Otherwise, said +Fitzjames in one of his last Indian speeches (upon the Oaths and +Declaration Act) a grievous crime might have escaped punishment, because +five English gentlemen had made statements 'in the presence of Almighty +God,' instead of kissing the Bible and saying 'So help me God.' + +I must mention one other incident which occurred at the end of +Fitzjames's stay in India. One Ram Singh was the spiritual and political +chief of a sect called the Kookas. His disciples showed their zeal by +murdering butchers as a protest against cow-killing. They were animated +by prophecies of a coming kingdom of heaven, broke into rioting and were +suppressed, and, as the Indian Government held, punished with an excess +of severity. Although Fitzjames was not officially responsible in this +business, he was consulted on the occasion; and his opinions are +represented by an official despatch. I need only say that, as in the +case of Governor Eyre, he insisted that, while the most energetic +measures were allowable to suppress actual resistance, this was no +excuse for excessive punishment after the danger was over. The ordinary +law should then be allowed to take its course. Meanwhile, Ram Singh was +shown to be more or less implicated in the disorders and was deported +to Burmah. Fitzjames was greatly impressed by the analogy between +English rulers in India and Roman governors in Syria some eighteen +centuries ago, when religious sects were suspected of political designs. +To this I shall refer presently. + +Fitzjames attended the Legislative Council for the last time on April +17, 1872. He left Calcutta the next day on his return to England. He had +thus been in office for only half the usual period of five years. His +reasons for thus cutting short his time were simple. He felt very +strongly that he was exacting a sacrifice on the part of his wife and +his family which could only be justified by a very distinct advantage. +The expenses were more than he had anticipated, and he saw at an early +period that he would be in any case compelled to return to his +profession. Gaps at the bar are soon filled up. The more prolonged his +absence, the greater would be the difficulty of regaining the position +which he had slowly reached. I have some reason to think that the +authorities at the India Office were not altogether pleased at what they +considered to be a premature relinquishment of his post. He could, +however, reply that if he had been only half the usual time in India, he +had done fully twice the average amount of work. He left India without +regrets for the country itself; for to him the climate and surroundings +of English life seemed to be perfection. But he left with a profound +impression of the greatness of the work done by Englishmen in India; and +with a warm admiration for the system of government, which he was eager +to impart to his countrymen at home. How he endeavoured to utter himself +upon that and kindred subjects shall be told in the next chapter. + +FOOTNOTES: + +[Footnote 102: His first letter to Miss Thackeray, I notice, is written +upon the back of a quaint broadsheet, bought at Boulogne. On the other +side is a woodcut of the gallant 'Tulipe' parting from his mistress, and +beneath them is the song 'Tiens, voici ma pipe, voilà mon briquet!' +which Montcontour used to sing at the 'Haunt' to the admiration of +Pendennis and Warrington. See the _Newcomes_, vol. i. chap. xxxvi.] + +[Footnote 103: I depend chiefly upon the official reports of the debates +in the Legislative Council; my brother's own summary of Indian +legislation in a chapter contributed to Sir W. W. Hunter's _Life of the +Earl of Mayo_ (1875), ii. pp. 143-226; and a full account of Indian +criminal legislation in chap, xxxiii. of his _History of Criminal Law_. +He gave a short summary of his work in an address to the Social Science +Association on November 11, 1872, published in the _Fortnightly Review_ +for December 1872. I may also refer to an article upon 'Sir James +Stephen as a Legislator' in the _Law Quarterly Review_ for July 1894, by +Sir C. P. Ilbert, one of his successors.] + +[Footnote 104: I may say that he especially acknowledges the share of +the work done in his own time by Mr. Whitley Stokes, secretary to the +Council, by Sir H. S. Cunningham, for some time acting secretary, and by +Mr. Cockerell, a member of the Council.] + +[Footnote 105: _History of Criminal Law_, iii. 299.] + +[Footnote 106: _Life of Lord Mayo_, ii. 199.] + +[Footnote 107: _History of Criminal Law_, ii. 300-303.] + +[Footnote 108: 'Obsolete Enactments Bill,' February 25, 1870.] + +[Footnote 109: _Mayo_, ii. 220.] + +[Footnote 110: The parties had also to be of certain ages, not already +married, and not within certain degrees of relationship.] + +[Footnote 111: See the account of this in _History of Criminal Law_, +iii. 324-346.] + +[Footnote 112: _History of Criminal Law_, iii. 345.] + +[Footnote 113: _Digest of the Law of Evidence._ Fourth edition, 1893, +pp. 156-9.] + +[Footnote 114: An edition of the _Evidence Code_, with notes by Sir H. +S. Cunningham, reached a ninth edition in 1894. It gives the changes +subsequently made, which are not numerous or important.] + +[Footnote 115: Sir C. P. Ilbert, however, is mistaken in supposing that +Fitzjames wrote his _Liberty, Equality, Fraternity_ during his official +labours.] + +[Footnote 116: _Life of Mayo_, ii. 163.] + +[Footnote 117: In _Selections from the Records of the Government of +India_, No. lxxxix., published by authority. Calcutta, 1872.] + +[Footnote 118: I do not feel that it would be right to omit this remark, +although I am certain that, taken by itself, it would convey a totally +inaccurate impression of my brother's sentiments about India. I have, I +hope, said enough to indicate his sympathetic interest in Indian matters +and the work of Indian officials. I must trust my readers to understand +that the phrase expresses a mood of intense excitement and must be taken +only as indicating the strength of the passing emotion.] + + + + +CHAPTER V + +_LAST YEARS AT THE BAR_ + +I. FIRST OCCUPATIONS IN ENGLAND + + +Fitzjames had passed the winter of 1871-2 in Calcutta with Henry +Cunningham; his wife having returned to England in November. He followed +her in the spring, sailing from Bombay on April 22, 1872. To most people +a voyage following two years and a half of unremitting labour would have +been an occasion for a holiday. With him, however, to end one task was +the same thing as to begin another, and he was taking up various bits of +work before India was well out of sight. He had laid in a supply of +literature suitable both for instruction and amusement. The day after +leaving Bombay he got through the best part of a volume of Sainte-Beuve. +He had also brought a 'Faust' and Auerbach's 'Auf der Höhe,' as he was +anxious to improve himself in German, and he filled up odd spaces of +time with the help of an Italian grammar. He was writing long letters to +friends in India, although letter-writing in the other direction would +be a waste of time. With this provision for employment he found that the +time which remained might be adequately filled by a return to his +beloved journalism. He proposes at starting to write an article a day +till he gets to Suez. He was a little put out for the first twenty-four +hours because in the place which he had selected for writing his iron +chair was too near the ship's compasses. He got a safe position +assigned to him before long and immediately set to work. He takes his +first text from the May meetings for an article which will give +everybody some of his reflections upon missionaries in India. Our true +position in India, he thinks, is that of teachers, if only we knew what +to teach. Hitherto we have not got beyond an emphatic assertion of the +necessity of law and order. He writes his article while the decks are +being washed, and afterwards writes a 'bit of a letter,' takes his +German and Italian lessons, and then turns to his travelling library. +This included Mill's 'Utilitarianism' and 'Liberty'; which presently +provide him with material not only for reflection, but for exposition. +On April 27 he reports that he has been 'firing broadsides into John +Mill for about three hours.' He is a little distracted by the heat, and +by talks with some of his fellow-travellers; but as he goes up the Red +Sea he is again assailing Mill. It has now occurred to him that the +criticisms may be formed into a series of letters to the 'Pall Mall +Gazette,' which will enable him to express a good many of his favourite +doctrines. 'It is curious,' he says, 'that after being, so to speak, a +devoted disciple and partisan (of Mill) up to a certain point I should +have found it impossible to go on with him. His politics and morals are +not mine at all, though I believe in and admire his logic and his +general notions of philosophy.' + +He reached Suez on May 5, and on the way home resolved at last to knock +off work and have a little time for reflection on the past and the +future. India, he says, has been 'a sort of second University course' to +him. 'There is hardly any subject on which it has not given me a whole +crowd of new ideas, which I hope to put into shape,' and communicate to +the world. On May 12 he reached Paris, where he met his wife; and on the +14th was again in England, rejoicing in a cordial reception from his +family and his old friends. The same evening he sees his cousin Mrs. +Russell Gurney and her husband; and his uncle and aunt, John and Emelia +Venn. Froude met him next day in the pleasantest way, and Maine and he, +as he reports, were 'like two schoolboys.' On the 15th he went to his +chambers and called upon Greenwood at the 'Pall Mall Gazette' office. He +had written an article on the way from Paris which duly appeared in next +day's paper. Not long after his return he attended a dinner of his old +Cambridge club, with Maine in the chair. In proposing Maine's health he +suggested that the legislation passed in India during the rule of his +friend and himself should henceforth be called the 'Acts of the +Apostles.' + +One of the greatest pleasures upon reaching home was to find that his +mother showed less marks of increasing infirmity than he had expected +from the accounts in letters. She was still in full possession of her +intellectual powers, and though less able than of old to move about, was +fully capable of appreciating the delight of welcoming back the son who +had filled so much of her thoughts. I may here note that Fitzjames's +happiness in reviving the old bonds of filial affection was before long +to be clouded. His uncle, Henry Venn, died on January 13, 1873, and he +writes on the 30th: 'somehow his life was so bold, so complete, and so +successful, that I did not feel the least as if his death was a thing to +be sad about,' sad as he confesses it to be in general to see the +passing away of the older generation. 'My dear mother,' he adds, 'is +getting visibly weaker, and it cannot now be a very long time before she +goes too. It is a thought which makes me feel very sad at times, but no +one ever had either a happier life or a more cheerful and gallant +spirit. She does not care to have us to dinner now; but we all see her +continually; I go perhaps every other day, and Mary nearly every day.' + +His mother was to survive two years longer. Her strong constitution and +the loving care of the daughter who lived with her supported her beyond +the anticipation of her doctors. There are constant references to her +state in my brother's letters. The old serenity remained unchanged to +the last. She suffered no pain and was never made querulous by her +infirmities. Slowly and gradually she seemed to pass into a world of +dreams as the decay of her physical powers made the actual world more +indistinct and shadowy. The only real subject for regret was the strain +imposed upon the daughter who was tenderly nursing her, and doing what +could be done to soothe her passage through the last troubles she was to +suffer. It was as impossible to wish that things should be otherwise as +not to feel the profound pathos of the gentle close to long years of a +most gentle and beautiful life. Fitzjames felt what such a son should +feel for such a mother. It would be idle to try to put into explicit +words that under-current of melancholy and not the less elevating +thought which saddened and softened the minds of all her children. Her +children must be taken to include some who were children not by blood +but by reverent affection. She died peacefully and painlessly on +February 27, 1875. She was buried by the side of her husband and of two +little grandchildren, Fitzjames's infant daughter and son, who had died +before her. + +I now turn to the work in which Fitzjames was absorbed almost +immediately after his return to England. He had again to take up his +profession. He was full of accumulated reflections made in India, which +he had not been able to discharge through the accustomed channel of +journalism during his tenure of office; and besides this he entertained +hopes, rather than any confident belief, that he would be able to induce +English statesmen to carry on in their own country the work of +codification, upon which he had been so energetically labouring in +India. Before his departure he had already been well known to many +distinguished contemporaries. But he came home with a decidedly higher +reputation. In the natural course of things, many of his contemporaries +had advanced in their different careers, and were becoming arbiters and +distributors of reputation. His Indian career had demonstrated his +possession of remarkable energy, capable of being applied to higher +functions than the composition of countless leading articles. He was +henceforward one of the circle--not distinguished by any definite label +but yet recognised among each other by a spontaneous freemasonry--which +forms the higher intellectual stratum of London society; and is +recruited from all who have made a mark in any department of serious +work. He was well known, of course, to the leaders of the legal +profession; and to many members of Government and to rising members of +Parliament, where his old rival Sir W. Harcourt was now coming to the +front. He knew the chief literary celebrities, and was especially +intimate with Carlyle and Froude, whom he often joined in Sunday +'constitutionals.' His position was recognised by the pleasant +compliment of an election to the 'Athenæum' 'under Rule II.,' which took +place at the first election after his return (1873). He had just before +(November 1872) been appointed counsel to the University of Cambridge. +Before long he had resumed his place at the bar. His first appearance +was at the Old Bailey in June 1872, where he 'prosecuted a couple of +rogues for Government.' He had not been there since he had held his +first brief at the same place eighteen years before, and spent his +guinea upon the purchase of a wedding ring. He was amused to find +himself after his dignified position in India regarded as a rather +'promising young man' who might in time be capable of managing an +important case. The judge, he says, 'snubbed' him for some supposed +irregularity in his examination of a witness, and did not betray the +slightest consciousness that the offender had just composed a code of +evidence for an empire. He went on circuit in July, and at Warwick found +himself in his old lodgings, writing with his old pen, holding almost +the same brief as he had held three years before, before the same judge, +listening to the same church bells, and taking the walk to Kenilworth +Castle which he had taken with Grant Duff in 1854. Although the circuit +appears to have been unproductive, business looked 'pretty smiling in +various directions.' John Duke Coleridge, afterwards Lord Chief Justice, +was at this time Attorney-General. Fitzjames differed from him both in +opinions and temperament, and could not refrain from an occasional smile +at the trick of rather ostentatious self-depreciation which Coleridge +seemed to have inherited from his great-uncle. There was, however, a +really friendly feeling between them both now and afterwards; and +Coleridge was at this time very serviceable. He is 'behaving like a good +fellow,' reports Fitzjames July 5, and is 'sending Government briefs +which pay very well.' By the end of the year Fitzjames reports 'a very +fair sprinkling of good business.' All his old clients have come back, +and some new ones have presented themselves. There were even before this +time some rumours of a possible elevation to the bench; but apparently +without much solid foundation. Meanwhile, he was also looking forward to +employment in the direction of codification. He had offered, when +leaving India, to draw another codifying bill (upon 'Torts') for his +successor Hobhouse. This apparently came to nothing; but there were +chances at home. 'I have considerable hopes,' he says (June 19, 1872), +'of getting set to work again after the manner of Simla or Calcutta.' +There is work enough to be done in England to last for many lives; and +the Government may perhaps take his advice as to the proper mode of +putting it in hand. He was soon actually at work upon two bills, which +gave him both labour and worry before he had done with them. One of +these was a bill upon homicide, which he undertook in combination with +Russell Gurney, then recorder of London. The desirability of such a bill +had been suggested to Gurney by John Bright, in consequence of a recent +commission upon Capital Punishment. Gurney began to prepare the work, +but was glad to accept the help of Fitzjames, whose labours had made him +so familiar with the subject. Substantially he had to adapt part of the +Penal Code, which he must have known by heart, and he finished the work +rapidly. He sent a copy of the bill to Henry Cunningham on August 15, +1872, when it had already been introduced into Parliament by R. Gurney +and read a first time. He sees, however, no chance of getting it +seriously discussed for the present. One reason is suggested in the same +letter. England is a 'centre of indifference' between the two poles, +India and the United States. At each pole you get a system vigorously +administered and carried to logical results. 'In the centre you get the +queerest conceivable hubblebubble, half energy and half impotence, and +all scepticism in a great variety of forms.' The homicide bill was +delayed by Russell Gurney's departure for America on an important +mission in the following winter, but was not yet dead. One absurd little +anecdote in regard to it belongs to this time. Fitzjames had gone to +stay with Froude in a remote corner of Wales; and wishing to refer to +the draft, telegraphed to the Recorder of London: 'Send Homicide Bill.' +The official to whom this message had to be sent at some distance from +the house declined to receive it. If not a coarse practical joke, he +thought it was a request to forward into that peaceful region a wretch +whose nickname was too clearly significant of his bloodthirsty +propensities. + +Fitzjames mentions in the same letter to Cunningham that he has just +finished the 'introduction' to his Indian Evidence Act. This subject +brought him further occupation. He had more or less succeeded in making +a convert of Coleridge. 'If this business with Coleridge turns out +right,' he says (October 2), 'I shall have come home in the very nick of +time, for there is obviously going to be a chance in the way of +codification which there has not been these forty years, and which may +never occur again.' Had he remained in India, he might have found the +new viceroy less favourable to his schemes than Lord Mayo had been, and +would have at any rate missed the chance of impressing the English +Government at the right time. On November 29 he writes again to +Cunningham, and expresses his disgust at English methods of dealing with +legislation. He admits that 'too much association with old Carlyle, with +whom I walk most Sundays,' may have made him 'increasingly gloomy.' But +'everything is so loose, so jarring, there is such an utter want of +organisation and government in everything, that I feel sure we shall +have a great smash some day.' A distinguished official has told him--and +he fully believes it--that the Admiralty and the War Office would break +down under a week's hard pressure. He observes in one article of the +time that his father had made the same prophecy before 1847. He often +quotes his father for the saying, 'I am a ministerialist.' Men in +office generally try to do their best, whatever their party. But men in +opposition aim chiefly at thwarting all action, good or bad, and a +parliamentary system gives the advantage to obstruction. Part of his +vexation, he admits, is due to his disgust at the treatment of the +codification question. Coleridge, it appears, had proposed to him +'months ago' that he should be employed in preparing an Evidence Bill. +Difficulties had arisen with Lowe, the Chancellor of the Exchequer, as +to the proper fee. Fitzjames was only anxious now to get the thing +definitively settled on any terms and put down in black and white. The +Government might go out at any moment, and without some agreement he +would be left in the lurch. It was 'excessively mortifying, ... and +showed what a ramshackle concern our whole system' was. Definite +instructions, however, to prepare the bill were soon afterwards given. +On December 20 he writes that the English Evidence Bill is getting on +famously. He hopes to have it all ready before Parliament meets, and it +may probably be read a second time, though hardly passed this year. It +was in fact finished, as one of his letters shows, by February 7, 1873. + + +II. 'LIBERTY, EQUALITY, FRATERNITY' + +Meanwhile, however, he had been putting much energy into another task. +He had for some time delivered his tale of articles to the 'Pall Mall +Gazette' as of old. He was soon to become tired of anonymous journalism; +but he now produced a kind of general declaration of principles which, +though the authorship was no secret and was soon openly acknowledged, +appeared in the old form, and, as it turned out, was his last work of +importance in that department. It was in some ways the most +characteristic of all his writings. He put together and passed through +the 'Pall Mall Gazette' during the last months of 1872 and January 1873 +the series of articles already begun during his voyage. They were +collected and published with his name in the following spring as +'Liberty, Equality, Fraternity.' I confess that I wondered a little at +the time that the editor of a newspaper should be willing to fill his +columns with so elaborate a discourse upon first principles; and I +imagine that editors of the present day would be still more determined +to think twice before they allowed such latitude even to the most +favoured contributor. I do not doubt, however, that Mr. Greenwood judged +rightly. The letters were written with as much force and spirit as +anything that Fitzjames ever produced. I cannot say how they affected +the paper, but the blows told as such things tell. They roused the anger +of some, the sympathy of others, and the admiration of all who liked to +see hard hitting on any side of a great question. The letters formed a +kind of 'Apologia' or a manifesto--the expression, as he frequently +said, of his very deepest convictions. I shall therefore dwell upon them +at some length, because he had never again the opportunity of stating +his doctrines so completely. Those doctrines are far from popular, nor +do I personally agree with them. They are, however, characteristic not +merely of Fitzjames himself, but of some of the contemporary phases of +opinion. I shall therefore say something of their relation to other +speculations; although for my purpose the primary interest is the +implied autobiography. + +The book was perhaps a little injured by the conditions under which it +was published. A series of letters in a newspaper, even though, as in +this case, thought out some time beforehand, does not lend itself easily +to the development of a systematic piece of reasoning. The writer is +tempted to emphasise unduly the parts of his argument which are +congenial to the journalistic mode of treatment. It is hard to break up +an argument into fragments, intended for separate appearance, without +somewhat dislocating the general logical framework. The difficulty was +increased by the form of the argument. In controverting another man's +book, you have to follow the order of his ideas instead of that in which +your own are most easily expounded. Fitzjames, indeed, gives a reason +for this course. He accepts Mill's 'Liberty' as the best exposition of +the popular view. Acknowledging his great indebtedness to Mill, he +observes that it is necessary to take some definite statement for a +starting point; and that it is 'natural to take the ablest, the most +reasonable, and the clearest.' Mill, too, he says, is the only living +author with whom he 'agrees sufficiently to argue with him profitably.' +He holds that the doctrines of Mill's later books were really +inconsistent with the doctrines of the 'Logic' and 'Political Economy.' +He is therefore virtually appealing from the new Utilitarians to the +old. 'I am falling foul,' he says in a letter, 'of John Mill in his +modern and more humane mood--or, rather, I should say, in his +sentimental mood--which always makes me feel that he is a deserter from +the proper principles of rigidity and ferocity in which he was brought +up.' Fitzjames was thus writing as an orthodox adherent of the earlier +school. He had sat at the feet of Bentham and Austin, and had found the +most congenial philosophy in Hobbes. And yet his utilitarianism was +mingled with another strain; and one difficulty for his readers is +precisely that his attack seems to combine two lines of argument not +obviously harmonious. Still, I think that his main position is +abundantly clear. + +Fitzjames--as all that I have written may go to prove--was at once a +Puritan and a Utilitarian. His strongest sympathies and antipathies were +those which had grown up in the atmosphere of the old evangelical +circle. On this side, too, he had many sympathies with the teaching of +Carlyle, himself a spiritual descendant of the old Covenanters. But his +intellect, as I have also remarked, unlike Carlyle's, was of the +thoroughly utilitarian type. Respect for hard fact, contempt for the +mystical and the dreamy; resolute defiance of the _à priori_ school who +propose to override experience by calling their prejudices intuitions, +were the qualities of mind which led him to sympathise so unreservedly +with Bentham's legislative theories and with Mill's 'Logic.' Let us, +before all things, be sure that our feet are planted on the solid earth +and our reason guided by verifiable experience. All his studies, his +legal speculations, and his application of them to practice, had +strengthened and confirmed these tendencies. How were they to be +combined with his earlier prepossessions? + +The alliance of Puritan with utilitarian is not in itself strange or +unusual. Dissenters and freethinkers have found themselves side by side +in many struggles. They were allied in the attack upon slavery, in the +advocacy of educational reforms, and in many philanthropic movements of +the early part of this century. James Mill and Francis Place, for +example, were regarded as atheists, and were yet adopted as close +philanthropic allies by Zachary Macaulay and by the quaker William +Allen. A common antipathy to sacerdotalism brought the two parties +together in some directions, and the Protestant theory of the right of +private judgment was in substance a narrower version of the rationalist +demand for freedom of thought. Protestantism in one aspect is simply +rationalism still running about with the shell on its head. This gives +no doubt one secret of the decay of the evangelical party. The +Protestant demand for a rational basis of faith widened among men of any +intellectual force into an inquiry about the authority of the Bible or +of Christianity. Fitzjames had moved, reluctantly and almost in spite of +himself, very far from the creed of his fathers. He could not take +things for granted or suppress doubts by ingenious subterfuges. And yet, +he was so thoroughly imbued with the old spirit that he could not go +over completely to its antagonists. To destroy the old faith was still +for him to destroy the great impulse to a noble life. He held in some +shape to the value of his creed, even though he felt logically bound to +introduce a 'perhaps.' + +This, however, hardly gives the key to his first difference with the +utilitarians, though it greatly affects his conclusions. He called +himself, as I have said, a Liberal; but there were, according to him, +two classes of Liberals, the intellectual Liberals, whom he identified +with the old utilitarians, and the Liberals who are generally described +as the Manchester school. Which of those was to be the school of the +future, and which represented the true utilitarian tradition? Here I +must just notice a fact which is not always recognised. The utilitarians +are identified by most people with the (so-called) Manchester doctrines. +They are regarded as advocates of individualism and the _laissez-faire_ +or, as I should prefer to call it, the let-alone principle. There was no +doubt a close connection, speaking historically; but a qualification +must be made in a logical sense, which is very important for my purpose. +The tendency which Fitzjames attacked as especially identified with +Mill's teaching--the tendency, namely, to restrict the legitimate sphere +of government--is far from being specially utilitarian. It belonged more +properly to the adherents of the 'rights of man,' or the believers in +abstract reason. It is to be found in Price and Paine, and in the French +declaration of the rights of man; and Mr. Herbert Spencer, its chief +advocate (in a new form) at the present day remarks himself that he was +partly anticipated by Kant. Bentham expressly repudiated this view in +his vigorous attack upon the 'anarchical fallacies' embodied in the +French declaration. In certain ways, moreover, Bentham and his disciples +were in favour of a very vigorous Government action. Bentham invented +his Panopticon as a machine for 'grinding rogues honest,' and proposed +to pass paupers in general through the same mill. His constitutional +code supposes a sort of omnipresent system of government, and suggests a +national system of education and even a national church--with a very +diluted creed. As thorough-going empiricists, the utilitarians were +bound to hold, and did, in fact, generally declare themselves to hold, +not that Government interference was wrong in general, but simply that +there was no general principle upon the subject. Each particular case +must be judged by its own merits. + +Historically speaking, the case was different. The political economy of +Ricardo and the Mills was undoubtedly what is now called thoroughly +'individualistic.' Its adherents looked with suspicion at everything +savouring of Government action. This is in part one illustration of the +general truth that philosophies of all kinds are much less the real +source of principles than the theories evoked to justify principles. +Their course is determined not by pure logic alone, but by the accidents +of contemporary politics. The revolutionary movement meant that +governments in general were, for the time, the natural enemies of +'reason.' Philosophers who upon any ground sympathised with the movement +took for their watchword 'liberty,' which, understood absolutely, is +the antithesis to all authority. They then sought to deduce the doctrine +of liberty from their own philosophy, whatever that might be. The _à +priori_ school discovered that kings and priests and nobles interfered +with a supposed 'order of nature,' or with the abstract 'rights of man.' +The utilitarian's argument was that all government implies coercion; +that coercion implies pain; and therefore that all government implies an +evil which ought to be minimised. They admitted that, though +'minimised,' it should not be annihilated. Bentham had protested very +forcibly that the 'rights of man' doctrine meant anarchy logically, and +asserted that government was necessary, although a necessary evil. But +the general tendency of his followers was to lay more stress upon the +evil than upon the necessity. The doctrine was expounded with remarkable +literary power by Buckle,[119] who saw in all history a conflict between +protection and authority on the one hand and liberty and scepticism on +the other. + +J. S. Mill had begun as an unflinching advocate of the stern old +utilitarianism of his father and Ricardo. He had become, as Fitzjames +observes, 'humane' or 'sentimental' in later years. He tried, as his +critics observe, to soften the old economic doctrines and showed a +certain leaning to socialism. In regard to this part of his teaching, in +which Fitzjames took little interest, I shall only notice that, whatever +his concessions, he was still in principle an 'individualist.' He +maintained against the Socialists the advantages of competition; and +though his theory of the 'unearned increment' looks towards the +socialist view of nationalisation of the land, he seems to have been +always in favour of peasant proprietorship, and of co-operation as +distinguished from State socialism. Individualism, in fact, in one of +its senses, for like other popular phrases it tends to gather various +shades of meaning, was really the characteristic of the utilitarian +school. Thus in philosophy they were 'nominalists,' believing that the +ultimate realities are separate things, and that abstract words are mere +signs calling up arbitrary groups of things. Politically, they are +inclined to regard society as an 'aggregate,' instead of an 'organism.' +The ultimate units are the individual men, and a nation or a church a +mere name for a multitude combined by some external pressure into a +collective mass of separate atoms.[120] This is the foundation of Mill's +political theories, and explains the real congeniality of the let-alone +doctrines to his philosophy. It gives, too, the key-note of the book +upon 'Liberty,' which Fitzjames took for his point of assault. Mill had +been profoundly impressed by Tocqueville, and, indeed, by an order of +reflections common to many intelligent observers. What are to be the +relations between democracy and intellectual culture? Many distinguished +writers have expressed their forebodings as to the future. Society is in +danger of being vulgarised. We are to be ground down to uniform and +insignificant atoms by the social mill. The utilitarians had helped the +lower classes to wrest the scourge from the hands of their oppressors. +Now the oppressed had the scourge in their own hands; how would they +apply it? Coercion looked very ugly in the hands of a small privileged +class; but when coercion could be applied by the masses would they see +the ugliness of it? Would they not use the same machinery in order to +crush the rich and the exalted, and take in the next place to crushing +each other? Shall we not have a dead level of commonplace and suffer, to +use the popular phrase, from a 'tyranny of the majority,' more universal +and more degrading than the old tyranny of the minority? This was the +danger upon which Mill dwelt in his later works. In his 'Liberty' he +suggests the remedy. It is nothing less than the recognition of a new +moral principle. Mankind, he said, individually or collectively, are +justified in interference with others only by the need of +'self-protection.' We may rightfully prevent a man from hurting his +neighbour, but not from hurting himself. If we carefully observe this +precaution the individual will have room to expand, and we shall cease +to denounce all deviations from the common type. + +Here Fitzjames was in partial sympathy with his antagonist. He reviewed +'Liberty' in the 'Saturday Review' upon its first appearance; and +although making certain reservations, reviewed it with warm approbation. +Mill and he were agreed upon one point. A great evil, perhaps the one +great evil of the day, as Fitzjames constantly said, is the prevalence +of a narrow and mean type of character; the decay of energy; the +excessive devotion to a petty ideal of personal comfort; and the +systematic attempt to turn our eyes away from the dark side of the +world. A smug, placid, contemptible optimism is creeping like a blight +over the face of society, and suppressing all the grander aspirations of +more energetic times. But in proportion to Fitzjames's general agreement +upon the nature of the evil was the vehemence of his dissent from the +suggested remedy. He thought that, so far from meeting the evil, it +tended directly to increase it. To diminish the strength of the social +bond would be to enervate not to invigorate society. If Mill's +principles could be adopted, everything that has stimulated men to +pursue great ends would lose its interest, and we should become a more +contemptible set of creatures than we are already. + +I have tried to show how these convictions had been strengthened by +circumstances. Fitzjames's strong patriotic feeling, his pride in the +British race and the British empire, generated a special antipathy to +the school which, as he thought, took a purely commercial view of +politics; which regarded the empire as a heavy burthen, because it did +not pay its expenses, and which looked forward to a millennium of small +shopkeepers bothered by no taxes or tariffs. During the 'Pall Mall +Gazette' period he had seen such views spreading among the class newly +entrusted with power. Statesmen, in spite of a few perfunctory attempts +at better things, were mainly engaged in paltry intrigues, and in +fishing for votes by flattering fools. The only question was whether the +demagogues who were their own dupes were better or worse than the +demagogues who knew themselves to be humbugs. Carlyle's denunciations of +the imbecility of our system began to be more congenial to his temper, +and encouraged him in his heresy. Carlyle's teachings were connected +with erroneous theories indeed, and too little guided by practical +experience. But the general temper which they showed, the contempt for +slovenly, haphazard, hand-to-mouth modes of legislation, the love of +vigorous administration on broad, intelligible principles, entirely +expressed his own feeling. Finally, in India he had, as he thought, +found his ideal realised. There, with whatever shortcomings, there was +at least a strong Government; rulers who ruled; capable of doing +business; of acting systematically upon their convictions; strenuously +employed in working out an effective system; and not trammelled by +trimming their sails to catch every temporary gust of sentiment in a +half-educated community. His book, he often said, was thus virtually a +consideration of the commonplaces of British politics in the light of +his Indian experience. He wished, he says in one of his letters, to +write about India; but as soon as he began he felt that he would be +challenged to give his views upon these preliminary problems: What do +you think of liberty, of toleration, of ruling by military force, and so +forth? He resolved, therefore, to answer these questions by themselves. + +I must add that this feeling was coloured by Fitzjames's personal +qualities. He could never, as I have pointed out, like Mill himself; he +pronounced him to be 'cold as ice,' a mere 'walking book,' and a man +whose reasoning powers were out of all proportion to his 'seeing +powers.' If I were writing about Mill I should think it necessary to +qualify this judgment of a man who might also be described as sensitive +to excess, and who had an even feminine tenderness. But from Fitzjames's +point of view the judgment was natural enough. The two men could never +come into cordial relations, and the ultimate reason, I think, was what +I should call Mill's want of virility. He might be called 'cold,' not as +wanting in tenderness or enthusiasm, but as representing a kind of +philosophical asceticism. Whether from his early education, his recluse +life, or his innate temperament, half the feelings which moved mankind +seemed to him simply coarse and brutal. They were altogether +detestable--not the perversions which, after all, might show a masculine +and powerful nature. Mill's view, for example, seemed to be that all the +differences between the sexes were accidental, and that women could be +turned into men by trifling changes in the law. To a man of ordinary +flesh and blood, who had grounded his opinions, not upon books, but upon +actual experience of life, such doctrines appear to be not only +erroneous, but indicative of a hopeless thinness of character. And so, +again, Fitzjames absolutely refused to test the value of the great +patriotic passions which are the mainsprings of history by the mere +calculus of abstract concepts which satisfied Mill. Fitzjames, like +Henry VIII., 'loved a man,' and the man of Mill's speculations seemed to +be a colourless, flaccid creature, who required, before all things, to +have some red blood infused into his veins. + +Utilitarianism of the pedantic kind--the utilitarianism which +substitutes mere lay figures for men and women--or the utilitarianism +which refuses to estimate anything that cannot be entered in a ledger, +was thus altogether abhorrent to Fitzjames. And yet he was, in his way, +a utilitarian in principle; and his reply to Mill must be given in terms +of utilitarianism. To do that, it was only necessary to revert to the +original principles of the sect, and to study Austin and Bentham with a +proper infusion of Hobbes. Then it would be possible to construct a +creed which, whatever else might be said of it, was not wanting in +vigour or in danger of substituting abstractions for concrete realities. +I shall try to indicate the leading points of this doctrine without +following the order partly imposed upon Fitzjames by his controversial +requirements. Nor shall I inquire into a question not always quite +clear, namely, whether his interpretation of Mill's principles was +altogether correct. + +One fundamental ground is common to Fitzjames and his antagonist. It is +assumed in Austin's analysis of 'law,' which is accepted by both.[121] +Law properly means a command enforced by a 'sanction.' The command is +given by a 'sovereign,' who has power to reward or punish, and is made +effectual by annexing consequences, painful or pleasurable, to given +lines of conduct. The law says, 'Thou shalt not commit murder'; and +'shalt not' means 'if you commit murder you shall be hanged.' Nothing +can be simpler or more obviously in accordance with common sense. +Abolish the gaoler and the hangman and your criminal law becomes empty +words. Moreover, the congeniality of this statement to the individualist +point of view is obvious. Consider men as a multitude of independent +units, and the problem occurs, How can they be bound into wholes? What +must be the principle of cohesion? Obviously some motive must be +supplied which will operate upon all men alike. Practically that means a +threat in the last resort of physical punishment. The bond, then, which +keeps us together in any tolerable order is ultimately the fear of +force. Resist, and you will be crushed. The existence, therefore, of +such a sanction is essential to every society; or, as it may be +otherwise phrased, society depends upon coercion. + +This, moreover, applies in all spheres of action. Morality and religion +'are and always must be essentially coercive systems.'[122] They +restrain passion and restrain it by appealing to men's hopes and +fears--chiefly to their fears. For one man restrained by the fear of the +criminal law, a vast number are restrained by the 'fear of the +disapprobation of their neighbours, which is the moral sanction, or by +the fear of punishment in a future state of existence, which is the +religious sanction, or by the fear of their own disapprobation, which +may be called the conscientious sanction, and may be regarded as a +compound case of the other 'two.'[123] An objection, therefore, to +coercion would be an objection to all the bonds which make association +possible; it would dissolve equally states, churches, and families, and +make even the peaceful intercourse of individuals impossible. In point +of fact, coercion has built up all the great churches and nations. +Religions have spread partly by military power, partly by 'threats as to +a future state,'[124] and always by the conquest of a small number of +ardent believers over the indifferent mass. Men's lives are regulated by +customs as streams are guided by dams and embankments. The customs like +the dams are essentially restraints, and moreover restraints imposed by +a small numerical minority, though they ultimately become so familiar to +the majority that the restraint is not felt. All nations have been built +up by war, that is, by coercion in its sternest form. The American civil +war was the last and most striking example. It could not ultimately be +settled by conveyancing subtleties about the interpretation of clauses +in the Constitution, but by the strong hand and the most energetic +faith.[125] War has determined whether nations are to be and what they +are to be. It decides what men shall believe and in what mould their +religion, laws, morals, and the whole tone of their lives shall be +cast.[126] + +Nor does coercion disappear with the growth of civilisation. It is not +abolished but transformed. Lincoln and Moltke commanded a force which +would have crushed Charlemagne and his paladins and peers like so many +eggshells.[127] Scott, in the 'Fair Maid of Perth,' describes the +'Devil's Dick of Hellgarth' who followed the laird of Wamphray, who rode +with the lord of Johnstone, who was banded with the Earl of Douglas, and +earl, and lord, and laird, and the 'Devil's Dick' rode where they +pleased and took what they chose. Does that imply that Scotland was then +subject to force, and that now force has disappeared? + +No; it means that the force that now stands behind a simple policeman +is to the force of Douglas and his followers as the force of a line of +battle ship to the force of an individual prize-fighter.[128] It works +quietly precisely because it is overwhelming. Force therefore underlies +and permeates every human institution. To speak of liberty taken +absolutely as good is to condemn all social bonds. The only real +question is in what cases liberty is good, and how far it is good. +Buckle's denunciation of the 'spirit of protection' is like praising the +centrifugal and reviling the centripetal force. One party would be +condemning the malignity of the force which was dragging us all into the +sun, and the other the malignity of the force which was driving us madly +into space. The seminal error of modern speculation is shown in this +tendency to speak as advocates of one of different forces, all of which +are necessary to the harmonious government of conduct.[129] + +This insistence upon the absolute necessity of force or coercion, upon +the theory that, do what you will, you alter only the distribution, not +the general quantity of force, is the leading principle of the book. +Compulsion and persuasion go together, but the 'lion's share' of all the +results achieved by civilisation is due to compulsion. Parliamentary +government is a mild and disguised form of compulsion[130] and reforms +are carried ultimately by the belief that the reformers are the +strongest. Law in general is nothing but regulated force,[131] and even +liberty is from the very nature of things dependent upon power, upon the +protection, that is, of a powerful, well-organised intelligent +government.[132] Hobbes's state of war simply threw an unpopular truth +'into a shape likely to be misunderstood.' There must be war, or evils +worse than war. 'Struggles there must always be unless men stick like +limpets or spin like weathercocks.'[133] + +Hence we have our problem: liberty is good, not as opposed to coercion +in general, but as opposed to coercion in certain cases. What, then, are +the cases? Force is always in the background, the invisible bond which +corresponds to the moral framework of society. But we have still to +consider what limits may be laid down for its application. The general +reply of a Utilitarian must of course be an appeal to 'expediency.' +Force is good, says Fitzjames, following Bentham again, when the end to +be attained is good, when the means employed are efficient, and when, +finally, the cost of employing them is not excessive. In the opposite +cases, force of course is bad. Here he comes into conflict with Mill. +For Mill tries to lay down certain general rules which may define the +rightful limits of coercive power. Now there is a _prima facie_ ground +of suspicion to a sound utilitarian about any general rules. Mill's +rules were of course regarded by himself as based upon experience. But +they savoured of that absolute _à priori_ method which professes to +deduce principles from abstract logic. Here, therefore, he had, as his +opponent thought, been coquetting with the common adversary and seduced +into grievous error. A great part of the argument comes to this: Mill +advocates rules to which, if regarded as practical indications of +certain obvious limitations to the utility of Government interference, +Fitzjames has no objection. But when they are regarded as ultimate +truths, which may therefore override even the principle of utility +itself, they are to be summarily rejected. Thus, as we shall see, the +practical differences are often less than appears. It is rather a +question of the proper place and sphere of certain rules than of their +value in particular cases. Yet at bottom there is also a profound +divergence. I will try to indicate the main points at issue. + +Mill's leading tenet has been already stated; the only rightful ground +of coercing our neighbours is self-protection. Using the Benthamite +terminology, we may say that we ought never to punish self-regarding +conduct, or again interpolating the utilitarian meaning of 'ought' that +such punishment cannot increase the general happiness. Fitzjames +complains that Mill never tries to prove this except by adducing +particular cases. Any attempt to prove it generally, would, he thinks, +exhibit its fallacy. For, in brief, the position would really amount to +a complete exclusion of the moral element from all social action. Men +influence each other by public opinion and by law. Now if we take public +opinion, Mill admits, though he disputes the inference from the +admission, that a man must suffer the 'inconveniences strictly +inseparable from the unfavourable opinion of others.' But men are units, +not bundles of distinct qualities, some self-regarding, and others +'extra-regarding.' Everyone has the strongest interest in the character +of everyone else. A man alone in the world would no more be a man than a +hand without a body would be a hand.[134] We cannot therefore be +indifferent to character because accidentally manifested in ways which +do or do not directly and primarily affect others. Drunkenness, for +example, may hurt a man's health or it may make him a brute to his wife +or neglectful of his social duties. As moralists we condemn the +drunkard, not the results of his conduct, which may be this or that +according to circumstances. To regard Mill's principle as a primary +moral axiom is, therefore, contradictory. It nullifies all law, moral +or other, so far as it extends. But if Mill's admission as to the +'unfavourable opinions' is meant to obviate this conclusion, his theory +merely applies to positive law. In that case it follows that the +criminal law must be entirely divorced from morality. We shall punish +men not as wicked but as nuisances. To Fitzjames this position was +specially repulsive. His interest in the criminal law was precisely that +it is an application of morality to conduct. Make it a mere machinery +for enabling each man to go his own way, virtuous or vicious, and you +exclude precisely the element which constituted its real value. Mill, +when confronted with some applications of his theory, labours to show +that though we have no right to interfere with 'self-regarding' vice, we +may find reasons for punishing conspiracies in furtherance of vice. 'I +do not think,' replies Fitzjames, 'that the state ought to stand +bandying compliments with pimps.' It ought not to say that it can +somehow find an excuse for calling upon them to desist from 'an +experiment in living' from which it dissents. 'My feeling is that if +society gets its grip on the collar of such a fellow, it should say to +him, "You dirty fellow, it may be a question whether you should be +suffered to remain in your native filth untouched, or whether my opinion +should be printed by the lash on your bare back. That question will be +determined without the smallest reference to your wishes or feelings, +but as to the nature of my opinion about you there can be no +doubt."'[135] + +Hence the purely 'deterrent' theory of punishment is utterly +unsatisfactory. We should punish not simply to prevent crime, but to +show our hatred of crime. Criminal law is 'in the nature of a +persecution of the grosser forms of vice, and an emphatic assertion of +the principle that the feeling of hatred and the desire of vengeance +above mentioned, (i.e. the emotion, whatever its proper name, produced +by the contemplation of vice on healthily constituted minds) 'are +important elements in human nature, which ought in such cases to be +satisfied in a regular public and legal manner.[136] This is one of the +cases in which Fitzjames fully recognises the importance of some of +Mill's practical arguments, though he disputes their position in the +theory. The objections to making men moral by legislation are, according +to him, sufficiently recognised by the Benthamite criterion condemning +inadequate or excessively costly means. The criminal law is necessarily +a harsh and rough instrument. To try to regulate the finer relations of +life by law, or even by public opinion, is 'like trying to pull an +eyelash out of a man's eye with a pair of tongs: they may pull out the +eye, but they will never get hold of the eyelash.'[137] But it is not +the end, but the means that are objectionable. Fitzjames does not object +in principle even to sumptuary laws. He can never, he says, look at a +lace machine, and think of all the toil and ingenuity wasted, with +patience.[138] But he admits that repressive laws would be impossible +now, though in a simpler age they may have been useful. Generally, then, +the distinction between 'self-regarding' and 'extra-regarding' conduct +is quite relevant, so far as it calls attention to the condition of the +probable efficacy of the means at our disposal. But it is quite +irrelevant in a definition of the end. The end is to suppress +immorality, not to obviate particular inconveniences resulting from +immorality; and one great use of the criminal law is that, in spite of +its narrow limitations, it supplies a solid framework round which public +opinion may consolidate itself. The sovereign is, in brief, a great +teacher of the moral law so far as his arm can reach. + +The same principles are applied in a part of the book which probably +gave more offence than any other to his Liberal opponents. The State +cannot be impartial in regard to morals, for morality determines the +bonds which hold society together. Can it, then, be indifferent in +regard to religions? No; for morality depends upon religion, and the +social bond owes its strength to both. The state can be no more an +impartial bystander in one case than in the other. The 'free Church in a +free State' represents a temporary compromise, not an ultimate ideal. +The difference between Church and State is not a difference of +provinces, but a difference of 'sanctions.' The spiritual and the +secular sanctions apply to the same conduct of the same men. Both claim +to rule all life, and are ultimately compelled to answer the fundamental +questions. To separate them would be to 'cut human life in two,' an +attempt ultimately impossible and always degrading. To answer +fundamental questions, says Mill, involves a claim to infallibility. No, +replies Fitzjames, it is merely a claim to be right in the particular +case, and in a case where the responsibility of deciding is inevitably +forced upon us. If the state shrinks from such decisions, it will sink +to be a mere police, or, more probably, will at last find itself in a +position where force will have to decide what the compromise was meant +to evade. Once more, therefore, the limits of state action must be drawn +by expediency, not by an absolute principle. The Benthamite formula +applies again. Is the end good, and are the means adequate and not +excessively costly? Mill's absolute principle would condemn the levy of +a shilling for a school, if the ratepayer objected to the religious +teaching. Fitzjames's would, he grants, justify the Inquisition, unless +its doctrines could be shown to be false or the means of enforcing them +excessive or inadequate--issues, he adds, which he would be quite ready +to accept.[139] Has, then, a man who believes in God and a future life a +moral right to deter others from attacking those doctrines by showing +disapproval? Yes, 'if and in so far as his opinions are true.'[140] To +attack opinions on which the framework of society depends is, and ought +to be, dangerous. It should be done, if done at all, sword in hand. +Otherwise the assailant deserves the fate of the Wanderer in Scott's +ballad: + + Curst be the coward that ever he was born + That did not draw the sword before he blew the horn.[141] + +Such opinions seem to justify persecution in principle. Fitzjames +discusses at some length the case of Pontius Pilate, to which I may +notice he had often applied parallels from Ram Singh and other Indian +experiences. Pontius Pilate was in a position analogous to that of the +governor of a British province. He decides that if Pilate had acted upon +Mill's principles he would have risked 'setting the whole province in a +blaze.' He condemns the Roman persecutors as 'clumsy and brutal'; but +thinks that they might have succeeded 'in the same miserable sense in +which the Spanish Inquisition succeeded,' had they been more systematic, +and then would at least not have been self-stultified. Had the Roman +Government seen the importance of the question, the strife, if +inevitable, might have been noble. It would have been a case of +'generous opponents each working his way to the truth from opposite +sides,' not the case of a 'touching though slightly hysterical victim, +mauled from time to time by a sleepy tyrant in his intervals of +fury.'[142] Still, it will be said, there would have been persecution. I +believe that there was no man living who had a more intense aversion +than Fitzjames to all oppression of the weak, and, above all, to +religious oppression. It is oddly characteristic that his main +precedent is drawn from our interference with Indian creeds. We had +enforced peace between rival sects; allowed conversion; set up schools +teaching sciences inconsistent with Hindoo (and with Christian?) +theology; protected missionaries and put down suttee and human +sacrifices. In the main, therefore, we had shown 'intolerance' by +introducing toleration. Fitzjames had been himself accused, on the +occasion of his Native Marriages Bill, with acting upon principles of +liberty, fraternity, and equality. His point, indeed, is that a +government, even nervously anxious to avoid proselytism, had been +compelled to a upon doctrines inconsistent with the religions of its +subjects. I will not try to work out this little logical puzzle. In +fact, in any case, he would really have agreed with Mill, as he admits, +in regard to every actual question of the day. He admitted that the +liberal contention had been perfectly right under the special +circumstances. Their arguments were quite right so long as they took the +lower ground of expediency, though wrong when elevated to the position +of ultimate principles, overruling arguments from expediency.[143] +Toleration, he thinks, is in its right place as softening and moderating +an inevitable conflict. The true ground for moral tolerance is that +'most people have no right to any opinion whatever upon these subjects,' +and he thinks that 'the ignorant preacher' who 'calls his betters +atheists is not guilty of intolerance, but of rudeness and +ignorance.'[144] + +I must confess that this makes upon me the impression that Fitzjames was +a little at a loss for good arguments to support what he felt to be the +right mode of limiting his principles. The difficulty was due, I think, +to the views which he shared with Mill. The utilitarian point of view +tends to lower the true ground of toleration, because it regards +exclusively the coercive elements of law. I should hold that free +thought is not merely a right, but a duty, the exercise of which should +be therefore encouraged as well as permitted; and that the inability of +the coarse methods of coercion to stamp out particular beliefs without +crushing thought in general, is an essential part of the argument, not a +mere accident of particular cases. Our religious beliefs are not +separate germs, spreading disease and capable of being caught and +suppressed by the rough machinery of law, but parts of a general process +underlying all law, and capable of being suppressed only at the cost of +suppressing all mental activity. The utilitarian conception dwells too +much upon the 'sanctions,' and too little on the living spirit, of which +they are one expression. + +Fitzjames's view may so far be summed up by saying that he denies the +possibility of making the state a neutral in regard to the moral and +religious problems involved. Morality, again, coincides with 'utility '; +and the utility of laws and conduct in general is the criterion which we +must apply to every case by the help of the appropriate experience. We +must therefore reject every general rule in the name of which this +criterion may be rejected. This applies to Mill's doctrine of equality, +as well as to his doctrine of non-interference. I pass over some +comparatively commonplace remarks upon the inconsistency of 'liberty' +and 'equality.' The most unequivocal contradiction comes out in regard +to Mill's theory of the equality of the sexes. There was no dogma to +which Mill was more attached or to which Fitzjames was more decidedly +opposed. The essence of the argument, I take it, is this:[145] + +A just legislator, says Mill, will treat all men as equals. He must +mean, then, that there are no such differences between any two classes +of men as would affect the expediency of the applying the same laws to +both. What is good for one must therefore be good for another. Now, in +the first place, as Fitzjames urges, there is no presumption in favour +of this hypothesis; and, in the next place, it is obviously untrue in +some cases. Differences of age, for example, must be taken into account +unless we accept the most monstrous conclusions. How does this apply to +the case of sex? Mill held that the difference in the law was due simply +to the superiority of men to women in physical strength. Fitzjames +replies that men are stronger throughout, stronger in body, in nerve and +muscle, in mind and character. To neglect this fact would be silly; but +if we admit it, we must admit its relevance to legislation. Marriage, +for example, is one of the cases with which law and morality are both +compelled to deal. Now the marriage contract necessarily involves the +subordination of the weaker to the stronger. This, says Fitzjames, is as +clearly demonstrable as a proposition of Euclid.[146] For, either the +contract must be dissoluble at will or the rule must be given to one, +and if to one, then, as every one admits, to the husband. We must then +choose between entire freedom of divorce and the subordination of the +wife. If two people are indissolubly connected and differ in opinions, +one must give way. The wife, thinks Fitzjames, should give way as the +seaman should give way to his captain; and to regard this as humiliating +is a mark not of spirit but of a 'base, unworthy, mutinous +disposition.'[147] + +If, to avoid this, you made marriage dissoluble, you would really make +women the slaves of their husbands. In nine cases out of ten, the man is +the most independent, and could therefore tyrannise by the threat of +dismissing his wife. By trying to forbid coercion, you do not really +suppress it, but make its action arbitrary. + +He apologises to a lady in a letter referring to another controversy +upon the same subject in which he had used rather strong language about +masculine 'superiority.' 'When a beast is stirred up,' he says, 'he +roars rather too loud,' and 'this particular beast loves and honours and +worships women more than he can express, and owes most of the happiness +of his life to them.' By 'superior' he only meant 'stronger'; and he +only urges a 'division of labour,' and a correspondence between laws and +facts. This was, I think, strictly true, and applies to other parts of +his book. Partly from pugnacity and partly from contempt of +sentimentalism, he manages to put the harsher side of his opinions in +front. This appears as we approach the ultimate base of his theory. + +I have spoken more than once of Fitzjames's respect for Hobbes. For +Hobbes's theory of sovereignty, and even its application by the +ultramontane De Maistre, had always an attraction for him. Hobbes, with +his logical thoroughness, seems to carry the foundations of policy down +to the solid rock-bed of fact. Life is a battle; it is the conflict of +independent atoms; with differing aims and interests. The strongest, in +one way or other, will always rule. But the conflict may be decided +peacefully. You may show your cards instead of playing out the game; and +peace may be finally established though only by the recognition of a +supreme authority. The one question is what is to be the supreme +authority? With De Maistre it was the Church; with Fitzjames as with +Hobbes it was the State. The welfare of the race can only be secured by +order; order only by the recognition of a sovereign; and when that +order, and the discipline which it implies, are established, force does +not cease to exist: on the contrary, it is enormously increased in +efficacy; but it works regularly and is distributed harmoniously and +systematically instead of appearing in the chaotic clashing of countless +discordant fragments. The argument, which is as clear as Euclid in the +case of marriage, is valid universally. Society must be indissoluble; +and to be indissoluble must recognise a single ultimate authority in all +disputes. Peace and order mean subordination and discipline, and the +only liberty possible is the liberty which presupposes such 'coercion.' +The theory becomes harsh if by 'coercion' we mean simply 'physical +force' or the fear of pain. A doctrine which made the hangman the +ultimate source of all authority would certainly show brutality. But +nothing could be farther from Fitzjames's intention than to sanction +such a theory. His 'coercion' really includes an appeal to all the +motives which make peace and order preferable to war and anarchy. But it +is, I also think, a defect in the book that he does not clearly explain +the phrase, and that it slips almost unconsciously into the harsher +sense. He tells us, for example, that 'force is dependent upon +persuasion and cannot move without it.'[148] Nobody can rule without +persuading his fellows to place their force at his disposal; and +therefore he infers 'persuasion is a kind of force.' It acts by showing +people the consequences of their conduct. He calls controversy, again, +an 'intellectual warfare,' which, he adds, is far more searching and +effective than legal persecution. It roots out the weaker opinion. And +so, when speaking of the part played by coercion in religious +developments, he says that 'the sources of religion lie hid from us. +All that we know is that now and again in the course of ages someone +sets to music the tune which is haunting millions of ears. It is caught +up here and there, and repeated till the chorus is thundered out by a +body of singers able to drown all discords, and to force the unmusical +mass to listen to them.'[149] The word 'force' in the last sentence +shows the transition. Undoubtedly force in the sense of physical and +military force has had a great influence in the formation both of +religions and nations. We may say that such force is 'essential'; as a +proof of the energy and often as a condition of the durability of the +institutions. But the question remains whether it is a cause or an +effect; and whether the ultimate roots of success do not lie in that +'kind of force' which is called 'persuasion'; and to which nobody can +object. If coercion be taken to include enlightenment, persuasion, +appeals to sympathy and sentiment, and to imagination, it implies an +ultimate social groundwork very different from that generally suggested +by the word. The utilitarian and individualist point of view tends +necessarily to lay stress upon bare force acting by fear and physical +pain. The utilitarian 'sanctions' of law must be the hangman and the +gaoler. So long as society includes unsocial elements it must apply +motives applicable to the most brutal. The hangman uses an argument +which everyone can understand. In this sense, therefore, force must be +the ultimate sanction, though it is equally true that to get the force +you must appeal to motives very different from those wielded by the +executioner. The application of this analogy of criminal law to +questions of morality and religion affects the final conclusions of the +book. + +Fitzjames's whole position, if I have rightly interpreted him, depends +essentially upon his moral convictions. The fault which he finds with +Mill is precisely that Mill's theory would unmoralise the state. The +state, that is, would be a mere association for mutual insurance against +injury instead of an organ of the moral sense of the community. What, +then, is morality? How are we to know what is right and wrong, and what +are our motives for approving and disapproving the good and the bad? +Fitzjames uses phrases, especially in his letters, where he is not +arguing against an adversary, which appear to be inconsistent, if not +with utilitarianism, at least with the morality of mere expediency. Lord +Lytton, some time after this, wrote to him about his book, and he +replies to the question, 'What is a good man?'--'a man so constituted +that the pleasure of doing a noble thing and the pain of doing a base +thing are to him the greatest of pleasures and pains.' He was fond, too, +of quoting, with admiration, Kant's famous saying about the sublimity of +the moral law and the starry heavens. The doctrine of the 'categorical +imperative' would express his feelings more accurately than Bentham's +formulæ. But his reasoning was different. He declares himself to be a +utilitarian in the sense that, according to him, morality must be built +upon experience. 'The rightness of an action,' he concludes, 'depends +ultimately upon the conclusions at which men may arrive as to matters of +fact.'[150] This, again, means that the criterion is the effect of +conduct upon happiness. Here, however, we have the old difficulty that +the estimate of happiness varies widely. Fitzjames accepts this view to +some extent. Happiness has no one definite meaning, although he admits, +in point of fact, there is sufficient resemblance between men to enable +them to form such morality as actually exists. + +But is such morality satisfactory? Can it, for example, give sufficient +reasons for self-sacrifice--that is, neglect of my own happiness? +Self-sacrifice, he replies, in a strict sense, is impossible; for it +could only mean acting in opposition to our own motives of whatever +kind--which is an absurdity.[151] But among real motives he admits +benevolence, public spirit, and so forth, and fully agrees that they are +constantly strong enough to overpower purely self-regarding motives. So +far, it follows, the action of such motives may be legitimately assumed +by utilitarians. He is, therefore, not an 'egoistic' utilitarian. He +thinks, as he says in a letter referring to his book, that he is 'as +humane and public-spirited as his neighbours.' A man must be a wretched +being who does not care more for many things outside his household than +for his own immediate pains and pleasures. Had he been called upon to +risk health or life for any public object in India, and failed to +respond, he would never have had a moment's peace afterwards. This was +no more than the truth, and yet he would sometimes call himself +'selfish' in what I hold to be a non-natural sense. He frequently +complains of the use of such words as 'selfishness' and 'altruism' at +all. Selfishness, according to him, could merely mean that a man acts +from his own motives, and altruism would mean that he acted from +somebody else's motives. One phrase, therefore, would be superfluous, +and the other absurd. He insists, however, that, as he puts it, 'self is +each man's centre, from which he can no more displace himself than he +can leap off his own shadow.'[152] Since estimates of happiness differ, +the morality based upon them will also differ.[153] And from selfishness +in this sense two things follow. First, I have to act upon my own +individual conception of morality. + +If, then, I meet a person whose morality is different from mine, and +who justifies what I hold to be vices, I must behave according to my own +view. If I am his ruler, I must not treat him as a person making a +possibly useful experiment in living, but as a vicious brute, to be +restrained or suppressed by all available means. And secondly, since +self is the centre, since a 'man works from himself outwards,' it is +idle to propose a love of humanity as the guiding motive to morality. +'Humanity is only "I" writ large, and zeal for humanity generally means +zeal for My Notions as to what men should be and how they should +live.'[154] + +This, therefore, leads to the ultimate question: What, in the +utilitarian phrase, is the 'sanction' of morality? Here his answer is, +on one side at least, emphatic and unequivocal. Mill and the +positivists, according to him,[155] propose an utterly unsatisfactory +motive for morality. The love of 'humanity' is the love of a mere +shadowy abstraction. We can love our family and our neighbours; we +cannot really care much about the distant relations whom we shall never +see. Nay, he holds that a love of humanity is often a mask for a dislike +of concrete human beings. He accuses Mill of having at once too high and +too low an opinion of mankind.[156] Mill, he thinks, had too low an +estimate of the actual average Englishman, and too high an estimate of +the ideal man who would be perfectly good when all restraints were +removed. He excused himself for contempt of his fellows by professing +love for an abstraction. To set up the love of 'humanity,' in fact, as a +governing principle is not only impracticable, but often mischievous. A +man does more good, as a rule, by working for himself and his family, +than by acting like a 'moral Don Quixote,[157] who is capable of making +love for men in general the ground of all sorts of violence against men +in particular.' Indeed, there are many men whom we ought not to love. It +is hypocrisy to pretend to love the thoroughly vicious. 'I do not love +such people, but hate them,' says Fitzjames; and I do not want to make +them happy, because I could only do so by 'pampering their vices.'[158] + +Here, therefore, he reaches the point at which his utilitarian and his +Puritanical prepossessions coincide. All law, says the utilitarian, +implies 'sanctions'--motives equally operative upon all members of +society; and, as the last resort, so far as criminal law is concerned, +the sanction of physical suffering. What is the corresponding element in +the moral law? To this, says Fitzjames, no positivist can give a fair +answer. He has no reply to anyone who says boldly, 'I am bad and +selfish, and I mean to be bad and selfish.'[159] The positivists can +only reply, 'Our tastes differ.' The great religions have answered +differently. We all know the Christian answer, and 'even the Buddhists +had, after a time, to set up a hell.' The reason is simple. You can +never persuade the mass of men till you can threaten them. Religions +which cannot threaten the selfish have no power at all; and till the +positivists can threaten, they will remain a mere 'Ritualistic Social +Science Association.' Briefly, the utilitarian asks, What is the +sanction of morality? And the Puritan gives the answer, Hell. Here, +then, apparently, we have the keystone of the arch. What is the good of +government in general? To maintain the law? And what is the end of the +law? To maintain morality. And why should we maintain morality? To +escape hell. This, according to some of his critics, was Fitzjames's +own conclusion. It represents, perhaps in a coarse form, an argument +which Fitzjames was never tired of putting since the days when he worked +out the theory of hell at school. + +It would, however, be the grossest injustice to him if I left it to be +supposed for a moment that he accepted this version of his doctrine. He +repudiated it emphatically; and, in fact, he modifies the doctrine so +much that the real question is, whether he does not deprive it of all +force. No one was more sensible of the moral objections to the hell of +popular belief. He thought that it represented the Creator as a cruel +and arbitrary tyrant, whose vengeance was to be evaded by legal +fictions. Still, the absolute necessity of some 'sanction' of a +spiritual kind seemed clear to him. Without it, every religion would +fall to pieces, as every system of government would be dissolved without +'coercion.' And this is the final conclusion of his book in chapters +with which he was, as I find from his letters, not altogether satisfied. +He explains in the preface to his second edition that the question was +too wide for complete treatment in the limits. Briefly the doctrine +seems to be this. The Utilitarian or Positivist can frame a kind of +commonplace morality, which is good as far as it goes. It includes +benevolence and sympathy; but hardly gets beyond ordering men to love +their friends and hate their enemies. To raise morality to a higher +strain, to justify what it generally called self-sacrifice, to make men +capable of elevated action, they require something more. That something +is the belief in God and a future world. 'I entirely agree,' he says, +'with the commonplaces about the importance of these doctrines.'[160] +'If they be mere dreams life is a much poorer and pettier thing, and +mere physical comfort far more important than has hitherto been +supposed. Morality, he says, depends on religion. If it be asked whether +we ought to rise beyond the average utilitarian morality, he replies, +'Yes, if there is a God and a future state. No, if there is no God and +no future state.'[161] And what is to be said of those doctrines, the +ultimate foundation, if not of an average morality, yet of all morality +above the current commonplaces? Here we have substantially the religious +theory upon which I have already dwelt. He illustrates it here by +quotations from Mill, who admits the 'thread of consciousness' to be an +ultimate inexplicability, and by a passage from Carlyle, 'the greatest +poet of the age,' setting forth the mystery of the 'Me.' He believes in +a Being who, though not purely benevolent, has so arranged the universe, +that virtue is the law prescribed to his creatures. The law is stern and +inflexible, and excites a feeling less of love than of 'awful respect.' +The facts of life are the same upon any theory; but atheism makes the +case utterly hopeless. A belief in God is inextricably connected with a +belief in morality, and if one decays the other will decay with it. +Still it is idle to deny that the doctrines are insusceptible of proof. +'Faith says, I will, _though_ I am not sure; Doubt says, I will not, +_because_ I am not sure; but they both agree in not being sure.'[162] He +utterly repudiates all the attempts made by Newman and others to get out +of the dilemma by some logical device for transmuting a mere estimate of +probabilities into a conclusion of demonstrable certitude. We cannot get +beyond probabilities. But we have to make a choice and to make it at our +peril. We are on a pass, blinded by mist and whirling snow. If we stand +still, 'we shall be frozen to death. If we take the wrong road, we shall +be dashed to pieces. We do not certainly know whether there is any +right one. What must we do? "Be strong and of a good courage." Act for +the best, hope for the best, and take what comes. Above all let us dream +no dreams and tell no lies, but go our way, wherever we may land, with +our eyes open and our heads erect. If death ends all, we cannot meet it +better. If not, let us enter the next scene with no sophistry in our +mouths and no masks on our faces.'[163] + +A conclusion of this kind could commend itself neither to the dogmatist +who maintains the certainty of his theories, nor to the sceptic who +regards them as both meaningless and useless. I have dwelt upon them so +long because they seem to me to represent a substantially logical and +coherent view which commended itself to a man of very powerful +intellect, and which may be presumed to represent much that other people +hold less distinctly. The creed of a strong man, expressed with absolute +sincerity, is always as interesting as it is rare; and the presumption +is that it contains truths which would require to be incorporated in a +wider system. At any rate it represents the man; and I have therefore +tried to expound it as clearly as I could. I may take it for granted in +such references as I shall have to make in the following pages to my +brother's judgment of the particular events in which he took part. Mill +himself said, according to Professor Bain,[164] that Fitzjames 'did not +know what he was arguing against, and was more likely to repel than to +attract.' The last remark, as Professor Bain adds, was the truest. Mill +died soon afterwards and made no reply, if he ever intended to reply. +The book was sharply criticised from the positivist point of view by Mr. +Harrison, and from Mill's point of view by Mr. John Morley in the +'Fortnightly Review' (June and August 1873). Fitzjames replied to them +in a preface to a second edition in 1874. He complains of some +misunderstandings; but on the whole it was a fair fight, which he did +not regret and which left no ill-feeling. + + +III. DUNDEE ELECTION + +The last letter of the series had hardly appeared in the 'Pall Mall +Gazette,' when Fitzjames received an application to stand for Liverpool +in the Liberal interest. He would be elected without expense to himself. +He thought, as he observes, that he should find parliamentary life 'a +nuisance'; but a seat in the House might of course further both his +professional prospects and his schemes of codification. He consulted +Coleridge, who informed him that, if Government remained in office, a +codification Commission would be appointed. Coleridge was also of +opinion that, in that event, Fitzjames's claims to a seat on the +Commission would be irresistible. As, however, it was intended that the +Commissioners should be selected from men outside Parliament and +independent of political parties, Fitzjames would be disqualified by an +election for Liverpool. Upon this he at once declined to stand. A place +in a codification Commission would, he said, 'suit him better than +anything else in the world.' Coleridge incidentally made the remark, +which seems to be pretty obvious, that the authorship of the letters +upon 'Liberty, Equality, Fraternity' would be a rather awkward burthen +for a Liberal candidate to carry. + +For some time Fitzjames might hope, though he hoped with trembling, that +something would come of his various codifying projects. It was reported +that Mr. Bruce (Lord Aberdare) would introduce the Homicide Bill during +Russell Gurney's absence. Coleridge was able after many delays to +introduce the Evidence Bill. But it was crowded out of sight by more +exciting measures, and it was only upon its final withdrawal on the last +day of the session (August 5, 1873) that he could say a few words about +it.[165] The Bill was apparently ordered to be printed, but never became +public. It went to the parliamentary limbo with many of its brethren. + +In the session of 1873 the Government was beginning to totter. The +ministerial crisis of March, upon the defeat of the Irish University +Bill, was followed by Mr. Gladstone's resignation. He returned to +office, but had to attend to questions very different from codification. +'My castle of cards has all come down with a run,' writes Fitzjames +(March 14, 1873); 'Gladstone is out of office; Coleridge is going out; +my Evidence Act and all my other schemes have blown up--and here am I, a +briefless, or nearly briefless, barrister, beginning the world all over +again.... I have some reason to think that, if Gladstone had stayed in, +I should, in a few weeks, have been Solicitor-General, and on my way to +all sorts of honour and glory.' However, he comforts himself with +various proverbs. His favourite saying on these occasions, which were +only too common, was 'Patience, and shuffle the cards.' The Gladstone +Ministry, however, was patched up, and things looked better presently. +'I am,' he says in May, 'in the queerest nondescript position--something +between Solicitor-General and Mr. Briefless--with occasional spurts of +business' which look promising, but in frequency resemble angelic +visits. On June 27 he announces, however, that a whole heap of briefs +'has come in, and, to crown all, a solemn letter came yesterday from the +Lord Chancellor, offering to appoint me to act as circuit judge in the +place of Lush, who stays in town to try that lump of iniquity, the +Claimant.' He was, accordingly, soon at the Winchester Assizes, making a +serious experiment in the art of judging, and finding the position +thoroughly congenial. He is delighted with everything, including Chief +Baron Kelly, a 'very pleasant, chatty old fellow,' who had been called +to the bar fifty years before, and was still bright and efficient. +Fitzjames's duties exactly suit him. They require close attention, +without excessive labour. He could judge for nine hours a day all the +year round without fatigue. He gets up at 5.30, and so secures two or +three hours, 'reading his books with a quiet mind.' Then there is the +pleasure of choosing the right side, instead of having to take a side +chosen by others; while 'the constant little effort to keep counsel in +order, and to keep them also in good humour, and to see that all things +go straight and well, is to me perfectly exquisite.' His practice in +journalism has enabled him to take notes of the evidence rapidly, +without delaying the witnesses; and he is conscious of doing the thing +well and giving satisfaction. The leader of the circuit pays him 'a most +earnest compliment,' declaring that the 'whole bar are unanimous in +thinking the work done as well as possible. This,' he says, 'made me +very happy, for I know, from knowing the men and the bar, it is just the +case in which one cannot suspect flattery. If there are independent +critics in this world, it is British barristers.' Briefly, it is a +delicious 'Pisgah sight of Palestine.' If, in Indian phrase, he could +only become 'pucka' instead of 'kucha'--a permanent instead of temporary +judge--he would prefer it to anything in the world. He feels less +anxious, and declares that he has 'not written a single article this +week'; though he manages when work is slack, to find time for a little +writing, such as the chapter in Hunter's 'Life of Lord Mayo.' + +The assizes were being held at Salisbury soon afterwards, when Fitzjames +was summoned to London by a telegram from Coleridge. Coleridge had to +tell him that if he could stand for Dundee, where a vacancy had just +occurred, he would probably be elected; and that, if elected, he would +probably, though no pledge could be given, be made Solicitor-General. +Lord Romilly had retired from the Mastership of the Rolls in March. The +appointment of his successor was delayed until the Judicature Act, then +before Parliament, was finally settled. As, however, Coleridge himself +or the Solicitor-General, Sir G. Jessel, would probably take the place, +there would be a vacancy in the law offices. Fitzjames hesitated; but, +after consulting Lord Selborne, and hearing Coleridge's private opinion +that he would be appointed Solicitor-General even if he failed to win +the seat, he felt that it would be 'faint-hearted' to refuse. He was to +sit as judge, however, at Dorchester, and thought that it would be +improper to abandon this duty. The consequent delay, as it turned out, +had serious effects. From Dorchester he hurried off to Dundee. + +He writes from Dundee on Sunday, July 27, 1873, giving an account of his +proceedings. He had been up till 5 A.M. on the morning of the previous +Tuesday, and rose again at eight. He did not get to bed till 3 A.M. on +Wednesday. He was up at six, went to Dorchester, and attended a 'big +dinner,' without feeling sleepy. On Thursday he tried prisoners for four +hours; then went to London, and 'rushed hither and thither' from 10 P.M. +till 2 A.M. on Friday. He was up again at six, left by the 7.15 train, +reached Dundee at 10.30, and was worried by deputations till past +twelve. Part of the Liberal party had accepted another candidate, and +met him with a polite request that he would at once return to the place +whence he came. He preferred to take a night's rest and postpone the +question. On Saturday he again 'rushed hither and thither' all day; +spoke to 2,000 people for nearly two hours, was 'heckled' for another +hour in stifling heat, and had not 'the slightest sensation of fatigue,' +except a trifling headache for less than an hour. He was 'surprised at +his own strength,' feeling the work less than he had felt the +corresponding work at Harwich in 1865. + +The struggle lasted till August 5, the day of polling. Fitzjames had to +go through the usual experience of a candidate for a large constituency: +speaking often six times a day in the open air; addressing crowded +meetings at night; becoming involved in a variety of disputes, more or +less heated and personal in their nature; and seeing from the inside the +true nature of the process by which we manufacture legislators. It was +the second election in Dundee affected by Disraeli's extension of the +suffrage, and, I believe, the first election in the country which took +place under the provisions of the Ballot Act. The work was hard and +exciting, especially for a novice who had still to learn the art of +speaking to large public meetings; but it was such work as many eager +politicians would have enjoyed without reserve. To Fitzjames it was a +practical lesson in politics, to which he submitted with a kind of +rueful resignation, and from which he emerged with intensified dislike +of the whole system concerned. + +Dundee was a safe Liberal seat; the working classes under the new system +had an overwhelming majority; and no Tory candidate had ventured to +offer himself.[166] Fitzjames was virtually the Government candidate. +One of his opponents, Mr. Yeaman, had been provost of Dundee, but his +fame does not appear to have spread beyond his native town. While +Fitzjames was lingering at Dorchester another candidate had come +forward, Mr. Edward Jenkins, known as the author of 'Ginx's Baby.' This +very clever little book, which had appeared a couple of years +previously, had struck the fancy of the public, and run through a great +number of editions. It reflected precisely the school of opinion which +Fitzjames most cordially despised. The morality was that of Dickens's +'Christmas Carol,' and the political aim that of sentimental socialism. +Thus, though all three candidates promised to support Mr. Gladstone's +Government, one of Fitzjames's rivals represented the stolid +middle-class prejudices, and a second the unctuous philanthropic +enthusiasm, which he had denounced with his whole force in 'Liberty, +Equality, Fraternity.' No combination could have been contrived which +would have set before him more clearly the characteristics of the party +of which he still considered himself to be a member. + +From the beginning he felt himself to be, in some respects, in a false +position. 'My dislike of the business,' he says at starting, 'is not the +least due to weakness or over-delicacy, but to a deep-rooted disgust at +the whole system of elections and government by constituencies like +this.' Three days' experience do not change his view. It is, he says, +'hateful work--such a noise, such waste of time, such unbusinesslike, +raging, noisy, irregular ways, and such intolerable smallness in the +minds of the people, that I wonder I do not do it even worse.' He +could scarcely stand a month of it for a certainty of the +Solicitor-Generalship. On the day before the poll he observes that 'it +is wretched, paltry work.' A local paper is full of extracts from his +'Liberty, Equality, Fraternity,' which, he fears, will not help him. +However, 'it was very good fun writing it.' And meanwhile, Mr. Jenkins +was making speeches which showed that 'his heart beat in unison with the +people's,' and speaking 'earnest words' on Sunday afternoon to boys on a +training ship. Even an enthusiastic speech from one of Fitzjames's +supporters at a large meeting, which was followed by a unanimous vote of +approval, 'nearly made him sick--it was so unspeakably fulsome.' It was +no wonder that he should be inclined to be disgusted with the whole +business. + +Considering the general uncongeniality of the surroundings, the most +remarkable thing was that he made so good a fight as he did. He was +encouraged by the presence of his brother by adoption and affection, +Frederick Gibbs. 'No one,' he reports, 'could be kinder or more +sensible; and he is as cool as a cucumber, and not shocked by my cynical +heresies.' From Frederick Gibbs, as he afterwards reports, he has +received the 'best and wisest' advice on every point. The 'cynical +heresies' to which he refers were simply those already expounded in his +book. He said precisely what he thought, and as vigorously as he could +say it. A campaign paper, called the 'Torch,' published by some of his +supporters, sums up the difference between him and Mr. Jenkins. 'Mr. +Stephen's liberalism,' says the 'Torch,' 'is much nearer to radicalism +than the liberalism of Mr. Jenkins. Mr. Stephen's liberalism is the +liberalism of self-help, of individualism, of every form of conscious +industry and energy. It is the only liberalism which has the smallest +chance of success in Scotland. The liberalism of Mr. Jenkins is the +liberalism of state aid, of self-abasement, of incapacity and +indolence'; and leads straight to sentimental communism. According to a +'working man' who writes to the paper, Mr. Jenkins virtually proposes +that the industrious part of the working classes are to support the +children of the lazy, idle, and improvident--a principle which many +people now seem inclined to regard as defensible. + +Fitzjames's accounts of his own speeches are to the same purpose. He has +repeated, he says, what he has always and everywhere maintained--that +people must 'help themselves, and that every class of society is bound +together, and is in one boat and on one bottom.' I have read the reports +in the local newspapers, which fully confirm this statement; but I need +only notice one point. He manages to get in a good word for +codification, and illustrates his argument by an ingenious parallel with +Bradshaw's 'Railway Guide.' That 'code' is puzzling enough as it is; but +what would be our state if we had to discover our route by examining and +comparing all the orders given by the directors of railways from their +origin, and interpreting them in accordance with a set of unwritten +customs, putting special meanings upon the various terms employed? + +The educated classes, as the 'Torch' asserts, and as his supporters told +him, were entirely in his favour; and, had the old suffrage remained +unaltered, no one else would have had a chance against him. Not only so, +but they declared that every speech he made was converting the working +classes. He is told that, if he had longer time, he would be able to +'talk them all round.' His speeches obviously impressed his hearers for +the time. 'You cannot imagine,' he says on August 2, 'how well I get on +with the people here, working men as well as gentry. They listen with +the deepest attention to all I say, and question me with the keenest +intelligence.' He admits, indeed, that there is no political sympathy +between him and his hearers. They want a 'thorough-going radical,' and +he cannot pretend to be one--'it is forced out on all occasions.' In +fact, he was illustrating what he had said in his book. He heartily +liked the individual working man; but he had no sympathy with the +beliefs which find favour with the abstract or collective working man, +who somehow manages to do the voting. They seem to have admired his +force, size, and manliness. 'Eh, but ye're a wiselike mon ony way,' says +a hideous old woman (as he ungratefully calls her), which, he is told, +is the highest of Scottish compliments to his personal appearance. This +friendly feeling, and the encouragement of his supporters, and the +success of his speeches, raised his hopes by degrees, and he even 'felt +a kind of pride in it,' though 'it is poor work educating people by +roaring at them.' Towards the end he even thinks it possible that he may +win, and, if so, 'it will be an extraordinary triumph, for I have never +asked one single person to support me, and I have said the most +unpopular things to such an extent that my supporters told me I was +over-defiant, or, indeed, almost rude.' + +However, it was not to be. Whether, as his friends said, he was too good +for the place, or whether less complimentary reasons alleged by his +opponents might be justified, he was hopelessly behind at the polls. He +received 1,086 votes; Mr. Jenkins, 4,010; and Mr. Yeaman, 5,207--or +rather more than both his opponents together. Fitzjames comforts himself +by the reflection that both he and Mr. Jenkins had shown their true +colours; that the respectable people had believed in him 'with a +vengeance,' and that the working men were beginning to like him. But Mr. +Jenkins's views were, and naturally must be, the most popular. +Fitzjames's chief supporter gave a dinner in his honour, when his health +was drunk three times with boundless enthusiasm, and promises were made +of the heartiest support on a future occasion. The fulfilment of the +promises was not required; and Fitzjames, in spite of occasional +overtures, never again took an active part in a political contest. + +In 1881, Lord Beaconsfield wrote to Lord Lytton: 'It is a thousand +pities that J. F. Stephen is a judge; he might have done anything and +everything as leader of the future Conservative party.' Lord +Beaconsfield was an incomparably better judge than I can pretend to be +of a man's fitness for such a position. The opinion, too, which he thus +expressed was shared by some of Fitzjames's friends, who thought that +his masculine force of mind and downrightness of character would have +qualified him to lead a party effectively. I shall only say that it is +idle to speculate on what he might haw done had he received the kind of +training which seems to be generally essential to success in political +life. He might, no doubt, have learnt to be more tolerant of the +necessary compromises and concessions to the feelings engendered by +party government. As it was, he had, during his early life, taken so +little interest in the political movements of the day, and, before he +was dragged for a time into the vortex, had acquired so many +prepossessions against the whole system, that I cannot but think that he +would have found a difficulty in allying himself closely with any party. +He considered the Tories to be not much, if at all, better than the +Radicals; and he would, I fancy, have discovered that both sides had, in +Lowell's phrase, an equal facility for extemporising lifelong +convictions. Upon this, however, I need not dwell. In any case, I think +that the Dundee defeat was a blessing in disguise; for, had he been +elected and found himself enlisted as a supporter of Mr. Gladstone, his +position would have been almost comically inappropriate. A breach would, +doubtless, have followed; and perhaps it would have been an awkward +business to manage the transition with delicacy. + +Fitzjames, in fact, discovered at Dundee that he was not really a +'Liberal' in the sense used in modern politics. His 'liberalism,' as the +'Torch' said, meant something radically opposed to the ideas which were +becoming dominant with the party technically called by the name. His +growing recognition of a fact which, it may perhaps be thought, should +have already been sufficiently obvious, greatly influenced his future +career. Meanwhile, he went back to finish his duties as Commissioner at +the assizes, and to reflect upon the lessons which, as he said, he had +learnt at Dundee. He had fresh ideas, he said, as to politics and the +proper mode of treating them. He propounded some of his doctrines in a +couple of lectures upon 'Parliamentary Government,' delivered to the +Edinburgh Philosophical Society in the following November.[167] He +describes some of the familiar consequences; shows how our +administrative system has become an 'aggregate of isolated +institutions'; and how the reduction of the Royal power to a cipher has +led to the substitution of a set of ministers, each a little king in his +own department, and shifted backwards and forwards in obedience to +popular sentiment. One result is the subordination to party purposes of +important interests not essentially connected with them. At the present +moment, he says, a disaster on the west coast of Africa would affect the +prospects of popular education. That is as rational as it would be to +change your lawyer because you have had to discharge your cook. +Fitzjames, however, was under no illusions. He fully admits that +parliamentary government is inevitable, and that foreign systems are in +some respects worse, and, in any case, incapable of being introduced. +He confines himself to suggesting that some departments of +administration and legislation might be withdrawn from the influence of +our party system. + + +IV. CODIFICATION IN ENGLAND + +Fitzjames had returned to act again as Commissioner at Wells. There he +had to listen to a vehement sermon from Archdeacon Denison, in favour of +auricular confession, and glancing, as his hearer fancied, at a certain +article in the 'Pall Mall Gazette.' He had afterwards a pleasant chat +with Freeman, 'not a bad fellow at all,' though obviously a 'terrible +pedant.' He hears from Coleridge, who has finally decided against +accepting the Mastership of the Rolls, and hopes that Fitzjames may +still be his colleague. The old Chief Baron is still charming, and says +('though I don't believe it') that he never knew what mental fatigue +meant, and that when he was Solicitor-General he was never in bed for +more than two or three hours for four or five nights a week ('which, +again, I do not believe'). However, it is undeniable that he can still +do his work as well as many younger men. + +The chance of the Solicitor-Generalship was soon extinguished. Coleridge +was friendly, but explained that political considerations might prevent +any attention being paid to his personal wishes. In September, in fact, +Sir Henry James was appointed to the vacant post and the hope finally +disappeared. There was still, however, a possibility of a seat on the +bench, which would please him still better. He feels that his proper +place is out of Parliament. He could exercise more influence 'than all +the Solicitor-Generals in the world' by simply devoting himself to +writing, and he is full of plans for books. But he would like to be a +judge for the sake both of the money and the work. 'The administration +of justice is really the best thing which is going on in the nation.' On +January 9, 1874, however, he announces that his little 'bubble about the +judgeship, which looked a very bright bubble indeed, has gone where all +bubbles go.' Twenty people had congratulated him upon his appointment +and three judges had written to recommend clerks. Last night he had +heard decisively that he was not to have it. Coleridge, too, had become +Lord Chief Justice and the Government business had gone elsewhere. Well, +he will 'put on some extra work to keep hold of the wolf's ears which he +has held so long.' Coleridge, I may add, still took an interest in +Fitzjames's codification schemes, and they even agreed, or rather +vaguely proposed, to act the parts of 'Moses and Aaron,' Fitzjames +inspiring measures of which Coleridge was to take charge in the House of +Lords. This dream, however, vanished like others. + +The dissolution of Parliament in January, 1874, was followed by a +general election. Proposals were made to Fitzjames to stand at several +places; including Dundee, where, however, Mr. Jenkins was elected. For +one reason or other he declined the only serious offers, and was 'not +sorry.' He could not get over 'his dislike to the whole affair.' He +'loathed elections,' and 'could not stand the idea of Parliament.' +Disraeli soon came into office, and 'the new ministry knew not Joseph.' +Fitzjames had quite got over his disappointment about the judgeship, +though he admits that he had at first felt it 'bitterly.' He has not +known how to find favour with chancellors or ministers. He therefore +resolves to make his own way; he cares more for what he is in himself +than for the position he holds; and he reconciles himself 'to the +prospect which obviously lies before him,' of obscure hard 'labour for a +good many years.' He 'puts away all his fair hopes in his pocket, and +resolves to do three things: a good bit of codifying,' whether on his +own account or for Government; a little book about India; and finally +the _magnum opus_ which he had so long meditated, which he thought that +he ought to begin when he was fifty (he was at this time just +forty-five), and which might take about fifteen years. The little book +about India is afterwards frequently mentioned in his letters under its +proposed title, 'The English in India.' It was, I think, to be more or +less historical, and to occupy some of the ground covered by Sir Alfred +Lyall's 'British Dominion in India.' It never took definite shape, but +led to the work upon Impey, of which I shall have to speak hereafter. +Meanwhile he is not without some good professional omens. He feels that +he will have to 'restrict his circuiteering,' and not to go to most of +the towns without special retainers. Good work is coming to him in +London, though not so frequently as might be wished. + +The codifying, in fact, took up much of his time. The 'Homicide Bill' +was introduced into Parliament this year (1874) by Russell Gurney, and +referred to a Select Committee. They consulted Cockburn, Bramwell, and +Blackburn, who appear to have been on the whole hostile. Bramwell, +however, declared that the Bill was 'excellently drawn,' and in a +friendly letter to Fitzjames condemned the spirit of hostility in which +it had been received by other judges. The main objection put forward by +Cockburn and accepted by the Committee was the objection to a partial +measure. The particular question of homicide involved principles +applying to other parts of the criminal law; and a partial treatment +would only serve to introduce confusion and doubt. The Committee +accordingly recommended that the Bill should be dropped. Fitzjames +accepted this not as a reason for abandoning the attempt but for +extending the scope of the proposed measure. The result will appear +presently. + +The change of Government was not altogether unfavourable. Early in March +he received instructions from Lord Salisbury, who had succeeded the Duke +of Argyll at the India Office, to consolidate the Acts relating to the +government of India. He set to work with his usual energy, and a +statement prefixed to the printed draft of the Bill is dated June 2, +1874. In less than three months he had done a big piece of work. The +consolidation of these laws had been in contemplation in England and +India for some time. Various preparations had been made by Government, +including a draft of the proposed Act by Mr. Herman Merivale, then +permanent undersecretary at the India Office. Fitzjames, however, had to +go through the whole, and, as he laments, without such help as he could +have commanded from his subordinates in India. He prepared an elaborate +schedule showing every unrepealed section of every Act relating to India +since 1770. The 'kernel of the law' was contained in eight Acts; the +'Regulating Act' of 1773, the Acts upon the successive renewal of the +Company's charter, and the Acts passed upon the transference of the +Company's powers to the Crown. As each of these had been superposed upon +its predecessors without repealing them, it was necessary to go through +them all to discover what parts were still in force; how far any law had +been modified by later enactments, and what parts of the law it might be +desirable to leave unaltered; and then to fuse the whole into unity. +Fitzjames proposes to repeal forty-three Acts with the exception of +certain sections, and to substitute for the repealed portions a single +Act of 168 sections, shorter, as he remarks, than some of those +repealed. The result would be to save a great deal of labour to +hard-worked Indian officials, who required to know the precise limits +of their authority; and the Act would form a complete constitutional +code, determining the powers and the mutual relations of the whole +Indian administrative and legislative system. + +The draft was carefully criticised by the authorities. Fitzjames himself +went through it again in the following January with Maine and Sir +Erskine Perry, and it was finally made ready to be laid before +Parliament. Lord Salisbury introduced in the following session a +preparatory measure which would be incidentally required. This, however, +was withdrawn in consequence, it seems, of objections made by the +Legislative Council in India, and the whole code went to the usual +limbo. I do not know what was the precise nature of the objection, but +probably it was thought that the new law might stir up questions which +it was better to leave in repose. Anyhow, nothing came of it. 'You have +done your work and got your fee, and what more do you want?' observed a +cynical friend. To which Fitzjames could only reply, ruefully enough, +'True, O King.' + +This task interrupted another upon which he had been engaged, and which +he took up again as soon as it was finished. He writes upon July 3, +1874, that his prospects have improved, and that he has therefore +'turned his mind to his books in real earnest.' They are a 'large +family' and rather crowd upon him. However, his first enterprise will be +'a codification of the English law of contracts, founded upon the Indian +Act, but larger and more elaborate in every way.' If the country takes +to codifying (the dream had not yet vanished), this might become his +profession. Anyhow, he will be able to give his mind to what he really +cares for. He had been already hard at work upon his 'Contract Book' in +the winter before he was instructed to prepare the Acts for the +Government of India. This task, I may observe, had led him to study some +of the German jurists. He had perfected his German with the help of a +master in the summer of his return, and was now able to read the +language comfortably. He expresses at first sight anything but +acquiescence in German claims to philosophical pre-eminence, but after a +time he comes to understand the respect which Austin professed for +Savigny. His study of the Law of Contracts was apparently broken off by +a renewed call to take up once more the Criminal Law. Of this I shall +have to speak presently. + +The reference just quoted to improved prospects is to be explained by an +influx of parliamentary business which took place at this time. He was +leading counsel in the session of 1874 for the London, Chatham and Dover +Railway Company, and appeared for them in several cases. The impression +which he made upon professional observers has been reported to me by +more than one competent witness. It is such as may be foreseen. 'You are +bringing your steam hammer to crack a nut again,' was the remark made to +one of them by a friend. Admiration for his 'close reasoning, weighty +argument, and high tone of mind,' is cordially expressed. He never threw +a word away, always got to the core of a question, and drove his points +well home. And yet he did not seem to be in the field best adapted for +his peculiar gifts. He was too judicial, too reluctant to put a good +face upon a bad cause, not enough of a rhetorician, and not sufficiently +alert in changing front, or able to handle topics with the lightness of +touch suitable to the peculiar tastes of a parliamentary Committee. +Thus, though he invariably commanded respect, he failed to show the +talent necessary for the more profitable, if not more exalted lines of +professional success. Business still continued to present itself in the +most tantalising form; it came in gushes and spurts, falling absolutely +dead at one moment and then unexpectedly reviving. He had occasionally +successful circuits; but failed to step into the vacant place made by +the elevation to the bench of his old tutor, Lord Field, in 1875, and +gradually went his rounds less regularly. Meanwhile a good deal of +business of a different kind presented itself. At the end of 1874, I +find him mentioning that he had eleven cases before the Judicial +Committee of the Privy Council. He appeared in a good many colonial and +Indian appeals, and afterwards, as I shall have occasion to notice, in +certain ecclesiastical cases. I do not think, however, that I need dwell +upon this part of his career. + +One remark must be made. Fitzjames was still doomed to be an +illustration of the curious disproportion which may exist between a +man's intrinsic power and his fitness for professional success. Still, +as at college, he was distanced in the race by men greatly his inferiors +in general force of mind, but better provided with the talent for +bringing their gifts to market. Such a position was trying, for it was +inevitable that he should be himself more conscious of his abilities +than of his limitations. His incapacity for acquiring the dexterities by +which men accommodate themselves to their neighbours' wants implied a +tendency rather to under-estimate the worth, whatever it may be, of such +dexterities. The obstacle to his success was just the want of +appreciation of certain finer shades of conduct, and therefore remained +unintelligible to himself. He was like a painter of very keen and yet +narrowly limited vision, who could not see the qualities which lead +people to prefer the work of a long-sighted man. Yet he not only never +lost heart, but, so far as I can discover, was never for a moment +querulous or soured. He was never for an instant in danger of becoming a +'man with a grievance.' He thought, of course, that his views were +insufficiently appreciated; but he complained, not of individuals, but +of general causes which were practically irremovable, and against which +it was idle to fret. If, in writing to his closest friends, he indulges +in a momentary grumble over the 'bursting of a bubble,' he always adds +that he is ashamed of himself for the feeling, and emphatically declares +himself to be one of the happiest and most fortunate of men. When, +therefore, I report his various disappointments, I must be understood to +imply that they never lowered his courage even in the most trifling +degree, or threw over his course more than such passing fits of shadow +as even the strongest man must sometimes traverse. Nobody could have +been cheerier, more resolute, or more convinced that his lines had +fallen in pleasant places. + + +V. THE METAPHYSICAL SOCIETY + +Here I shall notice some of the employments in which he found +distraction from the various worries of his career. In the first place, +he had a boundless appetite for books. When he returned from India he +rubbed up his old classical knowledge; and, though he had far too much +sense to despise the help of 'cribs,' he soon found himself able to get +on pretty well without them. He mentions a number of authors, Homer, for +example, and Æschylus, who supplied a motto for 'Liberty, Equality, +Fraternity '; he reads Demosthenes, partly with a view to Greek law; +dips into Plato and Aristotle, and is intensely interested by Cicero's +'De Natura Deorum.' He declares, as I have said, that he cared little +for literature in itself; and it is no doubt true that he was generally +more interested in the information to be got from books than in the mode +of conveying it. This, however, increases his appetite for congenial +works. He admires Gibbon enthusiastically; he has read the 'Decline and +Fall' four or five times, and is always wishing to read it again. He can +imagine no happier lot than to be able to devote oneself to the +completion of such a book. He found it hard, indeed, to think of a novel +or a poem as anything but a trifling though fascinating amusement. He +makes an unfavourable criticism upon a novel written by a friend, but +adds that it is 'not really unfavourable.' 'A great novel,' he explains, +'a really lasting work of art, requires the whole time and strength of +the writer, ... and X. is too much of a man to go in for that.' After +quoting Milton's 'Lycidas' and 'Christmas Hymn,' which he always greatly +admired, he adds that he is 'thankful that he is not a poet. To see all +important things through a magnifying glass of strange brilliant +colours, and to have all manner of tunes continually playing in one's +head, and I suppose in one's heart too, would make one very wretched.' A +good commonplace intellect satisfied with the homely food of law and +'greedily fond of pastry in the form of novels and the like, is--well, +it is at all events, thoroughly self-satisfied, which I suppose no real +poet or artist ever was.' Besides, genius generally implies sensitive +nerves, and is unfavourable to a good circulation and a thorough +digestion. These remarks are of course partly playful, but they +represent a real feeling. A similar vein of reflection appears to have +suggested a comment upon Las Casas' account of Napoleon at St. Helena. +It is 'mortifying' to think that Napoleon was only his own age when sent +to St. Helena. 'It is a base feeling, I suppose, but I cannot help +feeling that to have had such gifts and played such a part in life would +be a blessing and a delight greater than any other I can think of. I +suppose the ardent wish to be stronger than other people, and to have +one's own will as against them, is the deepest and most general of human +desires. If it were a wish which fulfilled itself, how very strong and +how very triumphant I should be;--but it does not.' For this atrocious +wish, I must add, he apologises amply in a later letter. It is merely a +passing velleity. In truth it represents his version of Carlyle's +doctrine about the superiority of silence to speech, or rather of the +active to the contemplative life. The career of a great conqueror, a +great legislator, a man who in any capacity has moulded the doctrines of +the race, had a charm for his imagination which he could not find in the +pleasant idlers, who beguile our leisure by singing songs and telling +stories. + +Men who affect the religions of mankind belong rather to the active than +the contemplative class. Nobody could estimate more highly the +importance of philosophical speculations upon the great problems of +life. To write a book which should effectively present his own answer to +those problems was his permanent ambition. Even in going to India, he +said, he had been moved partly by the desire of qualifying himself by +fresh experience for such a work, which had been consciously before him +ever since he left college. He was never able to carry out the plan +which was very frequently in his thoughts. Certain articles, however, +written about this time, sufficiently indicate his general conclusions, +and I therefore shall here give some account of them. They were all more +or less connected with that curious body called the 'Metaphysical +Society.' + +A description of this institution was given in the 'Nineteenth Century' +for August 1885 by Mr. R. H. Hutton, who represents the discussions by +an imaginary conversation between the chief debaters. Mr. Knowles +prefixed a brief historical account. The Society was founded in +consequence of a conversation between Tennyson and Mr. Knowles, and held +its first meeting on April 21, 1869. Fitzjames joined it after his +return from India. The scheme of the founders was to provide an arena in +which the most important religious problems should be discussed with the +same freedom with which other problems are, or ought to be discussed in +the learned and scientific societies. Perhaps some light might be thrown +upon the question whether we have immortal souls, in which Tennyson was +much interested. Many very distinguished men became members, and after a +friendly dinner discussed papers which had been circulated for +consideration. Cardinal Manning, W. G. Ward, and Father Dalgairns were +the chief representatives of Catholicism; Professors Huxley, Tyndall, +and W. K. Clifford of a scientific agnosticism; Mr. Frederic Harrison of +Positivism; and Dr. Martineau, Mr. Ruskin, Mr. R. H. Hutton, of various +shades of rational theology. There were others, such as Mark Pattison +and Professor Henry Sidgwick, whom I should shrink from putting into any +definite class. Mr. Gladstone, Lord Selborne, and Fitzjames may perhaps +be described as intelligent amateurs, who, though occupied with more +practical matters, were keenly interested in philosophical speculations. +These names are enough to show that there was no lack of debating +talent. + +Fitzjames took the liveliest interest in these discussions, to which at +various times he contributed papers upon 'necessary truths,' +'mysteries,' the 'proof of miracles,' the 'effect upon morality of a +decline in religious faith,' and the 'utility of truth.' He enjoyed some +vigorous encounters with various opponents: and according to Mr. Hutton +his 'mighty bass' exercised 'a sort of physical authority' over his +hearers. The meetings were of course strictly private; and reports of +the debates, had reports been possible, would have been a breach of +confidence. Yet as the Society has excited a certain interest, I will +venture to record part of my impressions. I was not a member of the +Society in its early, and, as I take it, most flourishing days; and I +only once, for example, heard a few words from W. G. Ward, who was then +one of the more conspicuous interlocutors. But I had the honour of +membership at a later period, and formed a certain estimate of the +performances. + +I remarked, in the first place, what was not strange, that nobody's +preconceived opinions were changed, nor even, so far as I know, in the +smallest degree affected by the discussions. Nor were they calculated to +affect any serious opinions. Had any young gentleman been present who +had sat at the feet of T. H. Green or of Professor Sidgwick, and gained +a first class at either University, he would, as I always felt, have +remarked that the debaters did not know what they were talking about. So +far as the discussions were properly metaphysical, the remark would have +been more than plausible. With certain conspicuous exceptions, which I +shall not specify, it was abundantly clear that the talk was the talk of +amateurs, not of specialists. I do not speak from conjecture when I say, +for example, that certain eminent members of the Society had obviously +never passed that 'asses' bridge' of English metaphysics, the writings +of Bishop Berkeley, and considered his form of idealism, when it was +mentioned, to be a novel and startling paradox. It was, I fancy, a small +minority that had ever really looked into Kant; and Hegel was a name +standing for an unknown region wrapped in hopeless mist. This would be +enough to disenchant any young gentleman fresh from his compendiums of +philosophy. Persons, he would think, in so hopeless a state of ignorance +could no more discuss metaphysics to any purpose than men who had never +heard of the teaching of Newton or Darwin could discuss astronomy or +biology. It was, in fact, one result of the very varying stages of +education of these eminent gentlemen that the discussions became very +ambiguous. Some of the commonest of technical terms convey such +different meanings in different periods of philosophy that people who +use them at random are easily set at hopelessly cross-purposes.... +'Object' and 'subject,' 'intuition,' 'experience,' and so forth, as used +by one set of thinkers, are to others like words in an unknown language +which they yet do not know to be unknown. + +If metaphysics were really a separate and independent science upon which +experts alone had a right to speak, this remark would be a sufficient +criticism of the Society. It called itself metaphysical, and four out of +five of its members knew nothing of metaphysics. A defence, however, +might be fairly set up. Some of the questions discussed were independent +of purely metaphysical inquiries. And it may be denied, as I should +certainly deny, that experts in metaphysics have any superiority to +amateurs comparable to that which exists in the established sciences. +Recent philosophers have probably dispersed some fallacies and cleared +the general issues; but they are still virtually discussing the old +problems. To read Plato, for example, is to wonder almost equally at his +entanglement in puerile fallacies and at his marvellous perception of +the nature of the ultimate and still involved problems. If we could call +up Locke or Descartes from the dead in their old state of mind, we might +still be instructed by their conversation, though they had never heard +of the later developments of thought. And, for a similar reason, there +was a real interest in the discussion of great questions by political, +or legal, or literary luminaries, who had seen men and cities and mixed +in real affairs and studied life elsewhere than in books, even though +as specialists they might be probably ignorant. The difference was +rather, perhaps, a difference of dialect than of substance. Their +weapons were old-fashioned; but the main lines of attack and defence +were the same. + +Another criticism, however, was obvious, and is, I think, sufficiently +indicated in Mr. Hutton's imaginary conversation. The so-called +discussions were necessarily in the main a series of assertions. Each +disputant simply translated the admitted facts into his own language. +The argument came to saying, I say ditto to Hume, or to Comte, or to +Thomas Aquinas. After a brief encounter, one man declared that he +believed in God, and his opponent replied, I don't. It was impossible +really to get further. It was not a difference between two advocates +agreed upon first principles and disputing only some minor corollary, +but a manifestation of different modes of thought, and of diverging +conceptions of the world and of life, which had become thoroughly +imbedded in the very texture of the speaker's mind. When it is a +question of principles, which have been the battle-ground of +generations; when every argument that can be used has been worked out by +the subtlest thinkers of all times, a dispute can really come to nothing +but saying, I am of this or that turn of mind. The real discussion of +such questions is carried on by a dialectical process which lasts +through many generations, and is but little affected by any particular +champion. Thus the general effect necessarily was as of men each +securely intrenched in his own fastness, and, though they might make +sallies for a little engagement in the open, each could retreat to a +position of impregnable security, which could be assaulted only by long +siege operations of secular duration. + +It was, I fancy, a gradual perception of these difficulties which led +to the decay of the Society. Meanwhile there were many pleasant +meetings, and, if the discussions came to be little more than a mutual +exhibition to each other of the various persons concerned, I hope and +believe that each tended to the conviction that his antagonist had +neither horns nor hoofs. The discussions, moreover, produced a +considerable crop of Magazine articles; and helped to spread the +impression that certain very important problems were being debated, upon +the decision of which immense practical consequences might depend. It +might be curious to inquire how far the real interest in these arguments +extended, and whether the real state of the popular mind is a vivid +interest in the war between scientific theories and traditional beliefs, +or may more fitly be described as a languid amusement in outworn +problems. Fitzjames, at any rate, who always rejoiced, like Cromwell's +pikemen, when he heard the approach of battle, thought, as his letters +show, that the forces were gathering on both sides and that a deadly +struggle was approaching. The hostility between the antagonists was as +keen as it had been in the sixteenth and seventeenth centuries, though +covered for the present by decent pretences of mutual toleration. He +contributed during this period a paper upon Newman's 'Grammar of Assent' +to 'Fraser's Magazine'; and he wrote several articles, partly the +product of the Metaphysical Society, in the 'Contemporary Review' and +the 'Nineteenth Century,' both under the editorship of Mr. Knowles. + +I shall speak of them so far as they illustrate what was, I think, his +definite state of mind upon the matters involved. His chief encounters +were with Cardinal Manning ('Contemporary Review,' March and May 1874), +and with W. G. Ward ('Contemporary Review,' December 1874), and with Mr. +Gladstone ('Nineteenth Century,' April 1877). The controversy with Mr. +Gladstone turned upon certain points raised in Sir G. C. Lewis's book +upon 'Authority in Matters of Opinion.' The combatants were so polite, +and their ultimate difference, which was serious enough, was so mixed up +with discussions of Lewis's meaning, that a consideration of the +argument would be superfluous. The articles directed against Manning, to +which his antagonist replied in succeeding numbers of the Review, were +of more interest. The essence of Fitzjames's argument was a revival of +his old challenge to Newman. He took occasion of a pamphlet by Manning +to ask once more the very pertinent question: You claim to represent an +infallible and supernatural authority which has indefeasible rights to +my allegiance; upon what grounds, then, is your claim based? To +establish it, you have first to prove that we have such a knowledge of +God as will enable us to draw special inferences as to particular +institutions; next, that Christ was an incarnation of that God; then, +that Christ founded a particular institution; and, finally, that the +institution was identical with the Catholic Church. The argument covers +a very wide ground; and I think that Fitzjames never wrote with more +concentrated vigour. I have a certain difficulty in speaking of +Manning's reply; because it has apparently come to be understood that we +are bound to pay insincere compliments to a good man's understanding +when he disagrees with our views. Now I am quite willing to admit that +Manning was a most amiable and well-meaning person; but I am unable to +consider him seriously as a reasoner. The spectacle which he presented +on this occasion, at least, was that of a fluent popular preacher, +clutched by a powerful logician, and put into a witness-box to be +thoroughly cross-examined. The one quality I can discover in his +articles is a certain dexterity in evading plain issues and covering +inconsistencies by cheap rhetoric. The best suggestion to be made on +his side would be that he was so weak an advocate that he could not do +justice to the argument. + +The controversy with W. G. Ward was of different character. Ward, with +his usual courtesy to intellectual antagonists, had corresponded with +Fitzjames, in whose writings he was much interested. He now challenged +his opponent to republish a paper upon 'necessary truths,' which had +been read to the Metaphysical Society. Fitzjames accordingly reproduced +it with a comment, and Ward replied in the next number. Ward was +undoubtedly a man of much dialectical ability, and, I think, in some +directions more familiar than his opponent with metaphysical subtleties. +Fitzjames considered himself to have had the best of the argument, and +says that the 'Tablet' admitted his superiority. I presume, however, +that Ward would have returned the opposite verdict. I am the less +inclined to pronounce any opinion because I believe that most competent +people would now regard the whole discussion as turning upon a false +issue. In fact, it was the old question, so eagerly debated by J. S. +Mill and Ward, as to the existence of intuitions and 'necessary truths.' +Neither Mill's empiricism nor Ward's belief in intuitions 'in the sense +required' would, I fancy, be now regarded as satisfactory. I think that +Fitzjames was greatly superior in vigour of expression; but the argument +is not one to be answered by a single Yes or No. + +I cannot even touch such controversies here. My only desire is to +indicate Fitzjames's intellectual attitude. It is sufficiently manifest +in these articles. He argues that Ward's position is really suicidal. +Certain things are pronounced by Ward to be impossible even for +Omnipotence--as, for example, to make a trilateral figure which shall +not be also triangular. Carry out this view, says Fitzjames, and you +make our conceptions the measure of reality. Mysteries, therefore, +become nonsense, and miracles an impossibility. In fact, Ward's logic +would lead to Spinoza, not to the deity of Catholic belief. Ward might +retort that Fitzjames's doctrines would lead to absolute scepticism or +atheism. Fitzjames, in fact, still accepts Mill's philosophy in the +fullest sense. All truth, he declares, may be reduced to the type, 'this +piece of paper is blue, and that is white.' In other words, it is purely +empirical and contingent. The so-called intuitive truths 'two and two +make four' only differ from the truth, 'this paper is white' in that +they are confirmed by wider experience. All metaphysical verbiage, says +Fitzjames, whether Coleridge's or Ward's, is an attempt to convert +ignorance into superior kind of knowledge, by 'shaking up hard words in +a bag.' Since all our knowledge is relative to our faculties, it is all +liable to error. All our words for other than material objects are +metaphors, liable to be misunderstood--a proposition which he confirms +from Horne Tooke's nominalism. All our knowledge, again, supposes memory +which is fallible. All our anticipations assume the 'uniformity of +nature,' which cannot be proved. And, finally, all our anticipations +also neglect the possibility that new forces of which we know nothing +may come into play. + +Such convictions generally imply agnosticism as almost a necessary +consequence. They might seem to show that what I have called the +utilitarian element in his thoughts had effectually sapped the base of +the Puritanic element. I certainly think that this was to some extent +the case. Fitzjames had given up the belief that the Gospel narrative +could be proved after the Paley method, and that was the only method +which, according to him, was legitimate. He had, therefore, ceased to +believe in the historical truth of Christianity. After going to India he +did not take part in church services, and he would not, I am sure, have +used such language about his personal convictions as he used in all +sincerity at the time of the 'Essays and Reviews' controversy. In short, +he had come to admit that no belief in a supernatural revelation could +be maintained in the face of modern criticism. He often read Renan with +great interest; Renan, indeed, seemed to him to be sentimental, and too +favourable to the view that a religion might have a certain artistic +value independent of its truth. But he was as far as Renan or as the +most thorough-going of historical critics from believing in the divinity +of Christ or the truth of the Christian inspiration. But, in spite of +this, he still held to his version of the doctrine of probability. It is +summed up in Pascal's famous _il faut parier_. We can neither put aside +the great religious questions nor give a positive answer to them. We +must act on the hypothesis that one answer or the other is true; but we +must not allow any juggling to transmute a judgment of probability into +an undoubting conviction of truth. There are real arguments on both +sides, and we must not ignore the existence of either. In the attack +upon Manning he indicates his reasons for believing in a God. He accepts +the argument from final causes, which is, of course, the only argument +open to a thorough empiricist, and holds that it is not invalidated, +though it is, perhaps, modified by recent scientific inquiries. It is +probable, therefore, that there is a God, though we cannot regard the +point as proved in such a sense as to afford any basis for expecting or +not expecting a revelation. On the contrary, all analogy shows that in +theological, as in all other matters, the race has to feel its way +gradually to truth through innumerable errors. In writing to a friend +about the Manning article he explains himself more fully. Such articles, +he says, give a disproportionate importance to the negative side of his +views. His positive opinions, if 'vague, are at least very deep.' He +cannot believe that he is a machine; he believes that the soul must +survive the body; that this implies the existence of God; that those two +beliefs make 'the whole difference between the life of a man and the +life of a beast.' The various religions, including Christianity, try to +express these beliefs, and so long as they are honestly and simply +believed are all good in various degrees. But when the creeds are held +on the ground of their beauty or utility, not on the ground of their +demonstrable truth, they become 'the most corrupt and poisonous objects +in the world, eating away all force, and truth, and honour so far as +their influence extends.' To propose such beliefs on any ground but the +ground of truth, 'is like keeping a corpse above ground because it was +the dearest and most beloved of all objects when it was alive.' He does +not object to authority as such. He has no objection to follow a +doctor's directions or to be loyal to an official superior, and would +equally honour and obey anyone whom he could trust in religious +questions. But he has never found such a guide. 'A guide is all very +well if he knows the way, but if he does not, he is the most fatal piece +of luggage in the world.' + +To use his favourite language, therefore, he still regarded a 'sanction' +as absolutely necessary to the efficacy of moral or religious teaching. +His constant criticism upon positivists and agnostics is that their +creeds afford no satisfactory sanction. They cannot give to the bad man +a reason for being good. But he was equally opposed to sham sanctions +and sham claims to authority. As a matter of fact, his attack upon such +claims led most people to classify him with the agnostics. Nor was this +without reason. He differed less in reality, I think, from Professor +Huxley or Mr. Harrison than from Ward or Cardinal Manning. In the +arguments at the 'Metaphysical Society' he was on the left wing as +against both Catholics and the more or less liberal theologians, whose +reasoning seemed to him hopelessly flimsy. His first principles in +philosophy were those of the agnostics, and in discussing such +principles he necessarily took their part. He once told Mr. Harrison +that he did not wish to have any more controversies with him, because +dog should not fight dog. He sympathised as heartily as any man could do +in the general spirit of rationalism and the desire that every belief +should be the outcome of the fullest and freest discussions possible. +Every attempt to erect a supernatural authority roused his +uncompromising antagonism. So long as people agreed with him upon that +point, they were at one upon the main issue. His feeling was apparently +that expressed in the old phrase that he would go with them as far as +Hounslow though he did not feel bound to go to Windsor. + +Writing a few months later to the same correspondent, he observes that +the difference between them is partly a difference of character. +Circumstances have developed in him a 'harsh and combative way of +thinking and writing in these matters.' Yet he had felt at times that it +required so much 'effort of will to face dreary and unpleasant +conclusions' that he could hardly keep his mind in the direction, or +what he thought the direction, of truth without much pain. He could +happily turn to neutral subjects, and had (I rather doubt the accuracy +of the phrase) 'a peculiarly placid turn of mind.' He admits that a +desire for knowledge is right and inevitable, but all experience shows +our fallibility and the narrow limits of our knowledge. We know, +however, that 'we are bound together by innumerable ties, and that +almost every act of our lives deeply affects our friends' happiness.' +The belief again (in the sense always of belief of a probability) in the +fundamental doctrines of God and a future state imposes an 'obligation +to be virtuous, that is, to live so as to promote the happiness of the +whole body of which I am a member. Is there,' he asks, 'anything +illogical or inconsistent in this view?' + +At any rate, it explains his 'moral indignation' against Roman +Catholicism. In the first place, Catholicism claims 'miraculous +knowledge' where there should be an honest confession of ignorance. This +original vice has made it 'to the last degree dishonest, unjust, and +cruel to all real knowledge.' It has been the enemy of government on +rational principles, of physical science, of progress in morals, of all +knowledge which tends to expose its fundamental fallacies. Its +theological dogmas are not only silly but immoral. The doctrines of +hell, purgatory, and so forth, are not 'mysteries,' but perfectly +unintelligible nonsense, first representing God as cruel and arbitrary, +and then trying to evade the consequence by qualifications which make +the whole 'a clumsy piece of patchwork.' God the Father becomes a 'stern +tyrant,' and God the Son a 'passionate philanthropist.' Practically his +experience has confirmed this sentiment. He does 'really and truly love, +at all events, a large section of mankind, though pride and a love of +saying sharp things have made me, I am sorry to say, sometimes write as +if I did not,' and whatever he has tried to do, he has found the Roman +Catholic Church 'lying straight across his path.' Men who are +intellectually his inferiors and morally 'nothing at all extraordinary,' +have ordered him to take for granted their views upon law, morals, and +philosophy, and when he challenges their claim can only answer that he +is wicked for asking questions. + +He fully admits the beauty of some of the types of character fostered by +the Roman Catholic Church, although they imply a false view of certain +Cardinal points of morality, and argues that to some temperaments they +may have a legitimate charm. But that does not diminish the strength of +his convictions that the dogmas are radically absurd and immoral, or +that the whole claim to authority is opposed to all rational progress. +In the Manning articles he ends by accepting the issue as between the +secular view and the claims of a priesthood to authority. In the last +resort it is a question whether State or Church shall rule. He prefers +the State, because it has more rational aims, uses more appropriate +means, has abler rulers, produces verifiable results, and has generally +'less nonsense about it.' The clergy are 'male old maids'; often very +clever, charitable, and of good intentions, but totally devoid of real +wisdom or force of mind or character, and capable on occasions of any +amount of spite, falsehood, and 'gentle cruelty.' It is impossible to +accept the claims of the priesthood to supernatural authority. If +ultimately a division has to be made, human reason will have to decide +in what shape the legal sanction, 'or, in other words, disciplined and +systematic physical force,' shall be used. We shall then come to the +_ultima ratio_, after all compromises have been tried. There may be an +inevitable conflict. The permanent principles of nature and society, +which are beyond all laws, will decide the issue. But Manning's is a +mere quack remedy. + +This represents one aspect of Fitzjames's character. The struggle which +is going on is a struggle between priest and layman, mysticism and +common sense, claims to supernatural authority and clear downright +reasoning from experience, and upon all grounds of theory and practice +he is unequivocally on the side of reason. I need only add a remark or +two. In the first place, I think that he never materially altered this +position, but he was rather less inclined after a time to take up the +cudgels. He never lost a conviction of the importance of his 'sanction.' +He always held to the necessity of some kind of religious belief, +although the precise dogma to be maintained became rather more shadowy. +But, as the discussion went on, he saw that in practice his own +standing-ground was becoming weaker. The tendency of men who were +philosophically on his own side was to regard the whole doctrine of a +future life as not only beyond proof but beyond all legitimate +speculation. Hence he felt the force of the dilemma to which he was +exposed. A genuine religion, as he says in a remarkable letter, must be +founded, like all knowledge, on facts. Now the religions which include a +theology rest on no facts which can stand criticism. They are, +therefore, doomed to disappear. But the religions which exclude +theology--he mentions Buddhism and Positivism as examples--give no +adequate sanction. Hence, if theology goes, the moral tone of mankind +will be lowered. We shall become fiercer, more brutal, more sensual. +This, he admits, is a painful and even a revolting conclusion, and he +therefore does not care to enlarge upon it. He is in the position of +maintaining that a certain creed is at once necessary to the higher +interests of mankind, and incapable of being established, and he leaves +the matter there. + +I may just add, that Fitzjames cared very little for what may be called +the scientific argument. He was indifferent to Darwinism and to theories +of evolution. They might be of historical interest, but did not affect +the main argument. The facts are here; how they came to be here is +altogether a minor question. Oddly enough, I find him expressing this +opinion before the 'Origin of Species' had brought the question to the +front. Reviewing General Jacob's 'Progress of Being' in the 'Saturday +Review 'of May 22, 1858, he remarks that the argument from development +is totally irrelevant. 'What difference can it make,' he asks, 'whether +millions of years ago our ancestors were semi-rational baboons?' This, I +may add, is also the old-fashioned empirical view. Mill, six years +later, speaks of Darwin's speculations, then familiar enough, with equal +indifference. In this, as in other important matters, Fitzjames +substantially adhered to his old views. To many of us on both sides +theories of evolution in one form or other seem to mark the greatest +advance of modern thought, or its most lamentable divergence from the +true line. To Fitzjames such theories seemed to be simply unimportant or +irrelevant to the great questions. Darwin was to his mind an ingenious +person spending immense labour upon the habits of worms, or in +speculating upon what may have happened millions of years ago. What does +it matter? Here we are--face to face with the same facts. Fitzjames, in +fact, agreed, though I fancy unconsciously, with Comte, who condemned +such speculations as 'otiose.' To know what the world was a billion +years ago matters no more than to know what there is on the other side +of the moon, or whether there is oxygen in the remotest of the fixed +stars. He looked with indifference, therefore, upon the application of +such theories to ethical or political problems. The indication is, I +think, worth giving; but I shall say nothing as to my own estimate of +the importance of the theories thus disregarded. + + +VI. THE CRIMINAL CODE + +I return to the sphere upon which Fitzjames spent his main energies, and +in which, as I think, he did his most lasting work. Three months of the +spring of 1874 had been spent in consolidating the laws relating to the +government of India. About the same time, I may observe parenthetically, +he had a scheme for publishing his speeches in the Legislative Council; +and, at one period, hoped that Maine's might be included in the volume. +The publishers, however, declined to try this experiment upon the +strength of the English appetite for Indian matters; and the book was +dropped. He returned for a time to the Contract Law; but must soon have +given up the plan. He writes on September 23, 1874, that Macmillan has +applied to him for a new edition of his 'Criminal Law'; and that he has +been reading for some time with a view to it. He has been labouring +through 3,000 royal 8vo. pages of 'Russell on Crimes.' They are full of +irrelevant illustrations; and the arrangement is 'enough to make one go +crazy.' The 'plea of _autrefois acquit_ comes at the end of a chapter +upon burglary'--a fact to make even the ignorant shudder! He would like +to put into his book a penal code, a code of criminal procedure, and an +evidence code. 'I could do it too if it were not too much trouble, and +if a large part of the law were not too foolish to be codified.' He is, +however, so convinced of the impracticability of parliamentary help or +of a commission that he is much inclined to try. A fortnight later +(October 8) he has resolved to convert his second edition into a draft +penal code and code of criminal procedure. + +The work grew upon his hands.[168] He found crudities in the earlier +work and a difficulty in stating the actual law from the absence of any +adequate or tolerably arranged text-book. Hence he resolved to make such +a book for himself, and to this task he devoted nearly all of what he +humorously called his leisure during the later part of 1874 and the +whole of 1875 and 1876. Moreover, he thought for a time that it would be +desirable to add full historical notes in order to explain various facts +of the law. These, however, were ultimately set aside and formed +materials for his later history. Thus the book ultimately took the form +simply of a 'Digest of the Criminal Law,' with an explanatory +introduction and notes upon the history of some of the legal doctrines +involved. It was published in the spring of 1877,[169] and, as he says +in a letter, it represented the hardest work he had ever done. + +It coincided in part with still another hard piece of work. In December +1875 he was appointed Professor of Common Law at the Inns of Court. He +chose for the subject of his first course of lectures the law of +evidence. His Indian Code and the bill introduced by Coleridge in 1873 +had made him thoroughly familiar with the minutiæ of the subject. Here +again he was encountered by the same difficulty in a more palpable +shape. A lecturer naturally wishes to refer his hearers to a text-book. +But the only books to which he could refer his hearers filled thousands +of pages, and referred to many thousands of cases. The knowledge +obtained from such books and from continual practice in court may +ultimately lead a barrister to acquire comprehensive principles, or at +least an instinctive appreciation of their application in particular +cases. But to refer a student to such sources of information would be a +mockery. He wants a general plan of a district, and you turn him loose +in the forest to learn its paths by himself. Fitzjames accordingly set +to work to supply the want by himself framing a 'digest' of the English +Law of Evidence. Here was another case of 'boiling down,' with the +difficulty that he has to expound a law--and often an irrational +law--instead of making such a law as seems to him expedient. He +undoubtedly boiled his materials down to a small size. The 'Digest' in a +fourth edition contains 143 articles filling 155 moderate pages, +followed by a modest apparatus of notes. I believe that it has been +found practically useful, and an eminent judge has told me that he +always keeps it by him. + +Fitzjames held his office of professor until he became a judge in 1879. +He had certainly one primary virtue in the position. He invariably began +his lecture while the clock was striking four and ceased while it was +striking five. He finally took leave of his pupils in an impressive +address when they presented him with a mass of violets and an ornamental +card from the students of each inn, with a kindly letter by which he was +unaffectedly gratified. His class certainly had the advantage of +listening to a teacher who had the closest practical familiarity with +the working of the law, who had laboured long and energetically to +extract the general principles embedded in a vast mass of precedents and +technical formulas, and who was eminently qualified to lay them down in +the language of plain common sense, without needless subtlety or +affectation of antiquarian knowledge. I can fully believe in the truth +of Sir C. P. Ilbert's remark that whatever the value of the codes in +other respects, their educational value must be considerable. They may +convince students that law is not a mere trackless jungle of arbitrary +rules to be picked up in detail, but that there is really somewhere to +be discovered a foundation of reason and common sense. It was one of +Fitzjames's favourite topics that the law was capable of being thus +exhibited; and that fifty years hence it would be a commonplace that it +would be treated in a corresponding spirit, and made a beautiful and +instructive branch of science. + +The publication of these two books marked a rise in his general +reputation. In the introduction to the 'Digest of the Criminal Law' he +refers to the rejection of his 'Homicide Bill.' The objections then +assigned were equivalent to a challenge to show the possibility of +codifying. He had resolved to show the possibility by actually codifying +'as a private enterprise.' The book must therefore be regarded as 'an +appeal to the public at large' against the judgment passed upon his +undertaking by Parliament and by many eminent lawyers. He does not make +the appeal 'in a complaining spirit.' The subject, he thinks, 'loses +nothing by delay,' and he hopes that he has improved in this book upon +the definitions laid down in his previous attempts. In connection with +this I may mention an article which he contributed to the 'Nineteenth +Century' for September 1879 upon a scheme for 'improving the law by +private enterprise.' He suggests the formation of a Council of 'legal +literature,' to co-operate with the Councils for law-reporting and for +legal education. He sketches various schemes, some of which have been +since taken up, for improving the law and legal knowledge. Digests of +various departments of the law might be of great service as preparing +the way for codification and illustrating defects in the existing state +of the law. He also suggests the utility of a translation of the +year-books, the first sources of the legal antiquary; a continuation of +the State Trials, and an authentic collection of the various laws of the +British Empire. Sir C. P. Ilbert has lately drawn attention to the +importance of the last; and the new State Trials are in course of +publication. The Selden Society has undertaken some of the antiquarian +researches suggested. + +Meanwhile his codification schemes were receiving a fresh impulse. When +preparing the 'Digest,' he reflected that it might be converted into a +penal code. He communicated this view to the Lord Chancellor (Cairns) +and to Sir John Holker (afterwards Lord Justice Holker), then +Attorney-General. He rejoiced for once in securing at last one real +convert. Sir John Holker, he says, appreciated the scheme with +'extraordinary quickness.' On August 2, 1877, he writes that he has just +received instructions from the Lord Chancellor to draw bills for a penal +code, to which he was soon afterwards directed to add a code of criminal +procedure. He set to work, and traversed once more the familiar ground. +The 'Digest,' indeed, only required to be recast to be converted into a +code. The measure was ready in June and was introduced into Parliament +by Sir John Holker in the session of 1878. It was received favourably, +and he reports that the Chancellor and the Solicitor-General, as well as +the Attorney-General, have become 'enthusiastic' in their approbation. +The House of Commons could not spare from more exciting occupations the +time necessary for its discussion. A Commission, however, was appointed, +consisting of Lord Blackburn, Mr. Justice Barry, Lord Justice Lush, and +himself to go into the subject. The Commission sat from November 1878 to +May 1879, and signed a report, written by Fitzjames, on June 12, 1879. +They met daily for over five months, discussed 'every line and nearly +every word of every section,' carefully examined all the authorities and +tested elaborately the completeness of the code. The discussions, I +gather, were not so harmonious as those in the Indian Council, and his +letters show that they sometimes tried his temper. The ultimate bill, +however, did not differ widely from the draft produced by Fitzjames, and +he was glad, he says,[170] that these thorough discussions brought to +light no serious defect in the 'Digest' upon which both draft-codes +were founded. The report was too late for any action to be taken in the +session of 1879. Cockburn wrote some observations, to which Fitzjames +(now a judge) replied in the 'Nineteenth Century' of January 1880. He +was studiously courteous to his critic, with whom he had some agreeable +intercourse when they went the next circuit together. I do not know +whether the fate of the measure was affected by Cockburn's opinion. In +any case the change of ministry in 1880 put an end to the prospects of +the code for the time. In 1882, to finish the story, the part relating +to procedure was announced as a Government measure in the Queen's +speech. That, however, was its last sign of life. The measure vanished +in the general vortex which swallows up such things, and with it +vanished any hopes which Fitzjames might still entertain of actually +codifying a part of English law. + + +VII. ECCLESIASTICAL CASES + +Fitzjames's professional practice continued to be rather spasmodic; +important cases occurring at intervals, but no steady flow of profitable +work setting in. He was, however, sufficiently prosperous to be able to +retire altogether from journalism. The 'Pall Mall Gazette' during his +absence had naturally got into different grooves; he had ceased to +sympathise with some of its political views; and as he had not time to +throw himself so heartily into the work, he could no longer exercise the +old influence. A few articles in 1874 and 1875 were his last +contributions to the paper. He felt the unsatisfactory nature of the +employment. He calculates soon afterwards that his collected works would +fill some fifty volumes of the size of 'Liberty, Equality, Fraternity,' +and he is anxious to apply his energy to less ephemeral tasks. His +profession and his codes gave him work enough. + +His most remarkable professional employment arose out of certain +ecclesiastical cases. Sir Francis Jeune, who was concerned in some of +them, has kindly described his impressions to me. Fitzjames's connection +with certain prosecutions directed against the ritualists arose from a +conversation between Sir F. Jeune, who was then junior counsel to the +English Church Union, and its secretary the late Sir Charles Young. A +counsel was required who should unite 'plenty of courage' to an intimate +knowledge of the Criminal Law and power of appreciating the results of +historical research. Fitzjames 'combined these requirements in a +wonderful way.' Sir F. Jeune makes reservations similar to those which I +have had to notice in other applications, as to Fitzjames's want of the +subtlety and closeness of reasoning characteristic of the greatest +lawyers. He saw things 'rather broadly,' and his literary habits tended +to distract him from the precise legal point. 'I always thought of his +mind,' says Sir Francis, 'as of a very powerful telescope pulled out +just a little too much.' The sharp definitions, perceptible sometimes to +inferior minds, were in his a little blurred. These peculiarities, +however, were even advantages in this special class of business. The +precedents and principles involved were rather vague, and much of the +work within the province rather of the historian than of the lawyer. It +involved questions as to the spirit in which the articles and rubrics +had been composed by their authors. The requirement of 'courage' was +amply satisfied. 'I shall never forget,' says Sir Francis, 'one +occasion' in which Fitzjames was urged to take a course which he thought +improper, though it was not unnaturally desired by irritated clients +fighting against what they considered to be harsh legal restraint. +Fitzjames at once made it clear that no client should make him deviate +from the path of professional propriety. He had, in fact, indignantly +refused, as I find from one of his letters, to adopt a position which +implied distrust of the impartiality of the judges. + +Of the cases themselves I must say generally that they often provoked a +grim smile from the advocate. When, in earlier days, he had defended Dr. +Williams he had spoken not merely as an advocate, but as a man who had +felt that he was vindicating the intellectual liberty of the Church of +which he was a member. The cases in which he was now concerned could +appeal to him only as an advocate. The first in which he appeared, +February 16, 1876, was sufficiently grotesque.[171] A clergyman had +refused to administer the sacrament to a gentleman who had published a +volume of 'Selections' from the Bible--implying, it was suggested, that +he did not approve of the part not selected--and who had his doubts +about the devil. The clergyman was reported to have said, 'Let him sit +down and write a calm letter, and say he believes in the devil, and I +will give him the sacrament.' The only legitimate causes in a legal +sense for refusing the sacrament would be that a man was an 'open and +notorious evil liver,' or a 'common and notorious depraver of the Book +of Common Prayer.' The Court of Arches apparently held that the +gentleman came under this description; but the Judicial Committee of the +Privy Council, after hearing Fitzjames, decided that he did not. A man +might disbelieve in the devil, without being a 'notorious evil liver,' +however irrational may be his scepticism. + +The most important of his appearances was in the Folkestone case.[172] +His 'opening argument, and even more his reply' (upon the appeal), 'were +masterpieces, and they obtained from the Privy Council a judgment in +very marked contrast to those which had preceded it.' His argument, as +Sir F. Jeune thinks, induced the Privy Council to some extent 'to +retrace, or at least seem to retrace, its steps.' The judgment +sanctioned what is known as the 'Eastern position,' and certain other +ritualistic practices. In another case,[173] it was decided, in +accordance with Fitzjames's argument, that a sculptured representation +of the Crucifixion, as opposed to the exhibition of a crucifix, was +lawful. + +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. + + +VIII. CORRESPONDENCE WITH LORD LYTTON + +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 æsthetic 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? + + +IX. APPOINTMENT TO A JUDGESHIP + +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. + + +NOTE + +***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. + +FOOTNOTES: + +[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.] + + + + +CHAPTER VI + +_JUDICIAL CAREER_ + +I. HISTORY OF CRIMINAL LAW + + +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."' + +[Illustration: _From a Photograph by Bassano, 1886_ + +London. Published by Smith Elder & Co 15. Waterloo Place.] + +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 mediæval 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 13-1/2_d._ 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 cælo, 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. + + +II. 'NUNCOMAR AND IMPEY' + +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 mediæval +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. + +It will be enough to give one instance of Macaulay's audacity. 'Every +schoolboy of fourteen' knows by heart his vivid account of the reign of +terror produced by Impey's exercise of the powers of the supreme court, +and of the bribe by which Hastings bought him off. A powerful and gloomy +picture is drawn in two or three expressive paragraphs. The objection to +the story, says Fitzjames, 'is that it is absolutely false from end to +end, and in almost every particular.'[187] Fitzjames proceeds not only +to assert the absence of evidence, but to show what was the supposed +evidence out of which Macaulay's imagination conjured this vision of +horror. Fitzjames remarks in a letter that his investigations had given +him a very low opinion of the way in which history was written, and +certainly, if + +Macaulay's statement was a fair specimen, the estimate could hardly be +too low. + +I may admit that, to my mind, the purely judicial method followed by +Fitzjames has its disadvantages. It tends to the exclusion of +considerations which, though rightly excluded from a criminal inquiry, +cannot be neglected by an historian. A jury would be properly directed +to acquit Hastings upon the charge of having instigated the prosecution +of Nuncomar. Yet, after all, it is very hard to resist the impression +that he must have had some share, more or less direct, in producing an +event which occurred just at the right moment and had such fortunate +results for him. It would be very wrong to hang a man upon such +presumptions; but it is impossible to deny that they have a logical +bearing upon the facts. However this may be, I think it is undeniable +that Fitzjames did good service to history in showing once for all the +ruthlessness and extravagance of Macaulay's audacious rhetoric. It is +characteristic that while making mincemeat of Macaulay's most famous +essay, Fitzjames cannot get rid of his tenderness for the great 'Tom' of +his boyish days. Besides praising the literary skill, which indeed, is +part of his case, he parts from his opponent with the warm eulogy which +I have previously noticed. He regards Macaulay as deluded by James Mill +and by the accepted Whig tradition. He condemns Mill, whose dryness and +severity have gained him an undeserved reputation for impartiality and +accuracy; he speaks--certainly not too strongly--of the malignity of +Francis; and he is, I think, a little hard upon Burke, Sheridan, and +Elliot, who were misled by really generous feelings (as he fully admits) +into the sentimental rhetoric by which he was always irritated. He +treats them as he would have put down a barrister trying to introduce +totally irrelevant eloquence. Macaulay escapes more easily. Fitzjames +felt that the essay when first published was merely intended as a +summary of the accepted version, making no pretensions to special +research. The morality of this judgment is questionable. Burke, +believing sincerely that Hastings was a wicked and corrupt tyrant, +inferred logically that he should be punished. Macaulay, accepting +Burke's view of the facts, calmly asserts that Hastings was a great +criminal, and yet with equal confidence invites his readers to worship +the man whose crimes were useful to the British empire. Fitzjames +disbelieved in the crimes, and could therefore admire Hastings without +reserve as the greatest man of the century. His sympathy with Macaulay's +patriotism made him, I think, a little blind to the lax morality with +which it was in this case associated. There is yet another point upon +which I think that Macaulay deserves a severer sentence. 'It is to be +regretted,' says Fitzjames, 'that Macaulay should never have noticed the +reply made to the essay by Impey's son.'[188] Unluckily this is not a +solitary instance. Macaulay, trusting to his immense popularity, took no +notice of replies which were too dull or too complicated to interest the +public. Fitzjames would himself have been utterly incapable of behaviour +for which it is difficult to discover an appropriate epithet, but which +certainly is inconsistent with a sincere and generous love of fair play. +If he did not condemn Macaulay more severely, I attribute it to the +difficulty which he always felt in believing anything against a friend +or one associated with his fondest memories. Had I written the book +myself, I should have felt bound to say something unpleasant: but I am +hardly sorry that Fitzjames tempered his justice with a little excess of +mercy. + +The scheme of continuing this book by an account of Warren Hastings was +not at once dropped, but its impracticability became obvious before many +months had passed. Fitzjames was conducting the Derby assizes in April +1885, when he had a very serious attack of illness. His wife was +fortunately with him, and, after consulting a doctor on the spot, he +returned to London, where he consulted Sir Andrew Clark. A passage from +a letter to Lady Egerton explains his view of what had happened. 'I +suppose,' he says (April 29, 1885), 'that Mary has told you the dreadful +tale of my getting up in the morning and finding that my right hand had +either forgot its cunning or had turned so lazy that I could not write +with it, and how I sent for a Derby doctor, and how he ordered me up to +London, and how Clark condemned me to three months' idleness and prison +diet--I must admit, of a sufficiently liberal kind. Fuller sees the +sentence carried out in detail. I have had about three days' experience +of it, and I must own that I already feel decidedly better. I think that +after the long vacation I shall be thoroughly well again. In the +meantime, I feel heartily ashamed of myself. I always did consider any +kind of illness or weakness highly immoral, but one must not expect to +be either better or stronger than one's neighbours; and I suppose there +is some degree of truth in what so many people say on Sundays about +their being miserable sinners.' He adds that he is having an exceedingly +pleasant time, which would be still more pleasant if he could write with +his own hand (the letter is dictated). He has 'whole libraries of books' +into which he earnestly desires to look. He feels like a man who has +exchanged dusty boots for comfortable slippers; he is reading Spanish +'with enthusiasm'; longing to learn Italian, to improve his German, and +even to read up his classics. He compares himself to a traveller in +Siberia who, according to one of his favourite anecdotes, loved +raspberries and found himself in a desert entirely covered with his +favourite fruit. + +He took the blow gallantly; perhaps rather too lightly. He was, of +course, alarmed at first by the symptoms described. Clark ultimately +decided that, while the loss of power showed the presence of certain +morbid conditions, a careful system of diet might keep at bay for an +indefinite time the danger of the development of a fatal disease. +Fitzjames submitted to the medical directions with perhaps a little +grumbling. He was not, like his father, an ascetic in matters of food. +He had the hearty appetite natural to his vigorous constitution. He was +quite as indifferent as his father to what, in the old phrase, used to +be called 'the pleasures of the table.' He cared absolutely nothing for +the refinements of cookery, and any two vintages were as +indistinguishable to him as two tunes--that is, practically identical. +He cared only for simple food, and I used, in old days, to argue with +him that a contempt for delicacies was as fastidious as a contempt for +plain beef and mutton. However that may be, he liked the simplest fare, +but he liked plenty of it. To be restricted in that matter was, +therefore, a real hardship. He submitted, however, and his health +improved decidedly for the time. Perhaps he dismissed too completely the +thought of the danger by which he was afterwards threatened. But, in +spite of the improvement, he had made a step downwards. He was allowed +to go on circuit again in the summer, after his three months' rest, and +soon felt himself quite equal to his work. But, from this time, he did +not add to his burthens by undertaking any serious labours of +supererogation. + + +III. JUDICIAL CHARACTERISTICS + +I will here say what I can of his discharge of the judicial functions +which were henceforth almost his sole occupation. In the first place, he +enjoyed the work, and felt himself to be in the position most suitable +to his powers. Independent observers took, I believe, the same view. I +have reported the criticisms made upon his work at the bar, and have +tried to show what were the impediments to his success. In many respects +these impediments ceased to exist, and even became advantages, when he +was raised to the bench. The difficulty which he had felt in adapting +himself to other men's views, the contempt for fighting battles by any +means except fair arguments upon the substantial merits of the case, +were congenial, at least, to high judicial qualities. He despised +chicanery of all kinds, and formed independent opinions upon broad +grounds instead of being at the mercy of ingenious sophistry. He was +free from the foibles of petty vanity upon which a dexterous counsel +could play, and had the solid, downright force of mind and character +which gives weight to authority of all kinds. I need not labour to prove +that masculine common sense is a good judicial quality. Popular opinion, +however, is apt to misconstrue broad epithets and to confound vigour +with harshness. Fitzjames acquired, among careless observers, a certain +reputation for severity. I have not the slightest wish to conceal +whatever element of truth there might be in such a statement. But I must +begin by remarking a fact which, however obvious, must be explicitly +stated. If there was one thing hateful to Fitzjames, and sure to call +out his strongest indignation, it was oppression in any form. The +bullying from which he suffered at school had left, as I have said, a +permanent hatred for bullies. It had not encouraged him, as it +encourages the baser natures, to become a bully in his turn, but rather +to hate and trample down the evil thing wherever he met it. His +theories, as I have said, led him to give a prominent place (too +prominent, as I think) to what he called 'coercion.' Coercion in some +form was inevitable upon his view; but right coercion meant essentially +the suppression of arbitrary violence and the substitution for it of +force regulated by justice. Coercion, in the form of law, was identical +with the protection of the weak against the strong and the erection of +an impregnable barrier against the tyrannous misuse of power. This +doctrine exactly expressed his own character, for, as he was strong, he +was also one of the most magnanimous of men. He was incapable of being +overbearing in social intercourse. He had the fighting instinct to the +full. An encounter with a downright enemy was a delight to him. But the +joy of battle never deadened his instinct of fair play. He would speak +his mind, sometimes even with startling bluntness, but he never tried to +silence an opponent by dogmatism or bluster. The keenest argument, +therefore, could not betray him into the least discourtesy. He might +occasionally frighten a nervous antagonist into reticence and be too apt +to confound such reticence with cowardice. But he did not take advantage +of his opponent's weakness. He would only give him up as unsuited to +play the game in the proper temper. In short, he represented what is +surely the normal case of an alliance between manliness and a love of +fair play. It is the weaker and more feminine, or effeminate, nature +that is generally tempted to resort to an unfair use of weapons. + +When, therefore, Fitzjames found himself in a position of authority, he +was keenly anxious to use his power fairly. He became decidedly more +popular on the bench than he had been at the bar. His desire to be +thoroughly fair could not be stronger; but it had a better opportunity +of displaying itself. The counsel who practised before him recognised +his essential desire to allow them the fullest hearing. He learnt to +'suffer fools' patiently, if not gladly. I apologise, of course, for +supposing that any barrister could be properly designated by such a +word; but even barristers can occasionally be bores. Some gentlemen, who +are certainly neither the one nor the other, have spoken warmly of his +behaviour. The late Mr. Montagu Williams, for example, tells with +pleasant gratitude how Fitzjames courteously came down from the bench to +sit beside him and so enabled him to spare a voice which had been +weakened by illness. His comment is that Fitzjames concealed 'the +gentleness of a woman' under a stern exterior. So Mr. Henry Dickens +tells me of an action for slander in which he was engaged when a young +barrister. Both slanderer and slandered were employed in Billingsgate. +The counsel for the defence naturally made a joke of sensibility to +strong language in that region. Mr. Dickens was in despair when he saw +that the judge and jury were being carried away by the humorous view of +the case. Knowing the facts, he tried to bring out the serious injury +which had been inflicted. Fitzjames followed him closely, became more +serious, and summed up in his favour. When a verdict had been returned +accordingly, he sent a note to this effect:--'Dear Dickens, I am very +grateful to you for preventing me from doing a great act of injustice.' +'He was,' says Mr. Dickens, 'one of the fairest-minded men I ever knew.' +His younger son has described to me the kindness with which he +encouraged a young barrister--the only one who happened to be +present--to undertake the defence of a prisoner, and helped him through +a difficult case which ended by an acquittal upon a point of law. 'I +only once,' says my nephew, 'heard him interrupt counsel defending a +prisoner,' except in correcting statements of fact. The solitary +exception was in a case when palpably improper matter was being +introduced. + +In spite of his patience, he occasionally gave an impression of +irritability, for a simple reason. He was thoroughly determined to +suppress both unfairness and want of courtesy or disrespect to the +court. When a witness or a lawyer, as might sometimes happen, was +insolent, he could speak his mind very curtly and sharply. A powerful +voice and a countenance which could express stern resentment very +forcibly gave a weight to such rebukes, not likely to be forgotten by +the offender. He had one quaint fancy, which occasionally strengthened +this impression. Witnesses are often exhorted to 'watch his lordship's +pen' in order that they may not outrun his speed in taking notes. Now +Fitzjames was proud of his power of rapid writing (which, I may remark, +did not include a power of writing legibly). He was therefore nervously +irritable when a witness received the customary exhortation: 'If you +watch my pen,' he said to a witness, 'I will send you to prison': which, +as he then had to explain, was not meant seriously. It came to be +understood that, in his case, the formula was to be avoided on pain of +being considered wantonly offensive. + +He rigidly suppressed, at any rate, anything which could lower the +dignity of the proceedings. He never indulged in any of those jokes to +which reporters append--sometimes rather to the reader's +bewilderment--the comment, 'loud laughter.' Nor would he stand any +improper exhibitions of feeling in the audience. When a spectator once +laughed at a piece of evidence which ought to have caused disgust, he +ordered the man to be placed by the side of the prisoner in the dock, +and kept him there till the end of the trial. He disliked the +promiscuous attendance of ladies at trials, and gave offence on one +occasion by speaking of some persons of that sex who were struggling for +admission as 'women.' He was, however, a jealous defender of the right +of the public to be present under proper conditions; and gave some +trouble during a trial of dynamiters, when the court-house had been +carefully guarded, by ordering the police to admit people as freely as +they could. His sense of humour occasionally made itself evident in +spite of his dislike to levity. He liked to perform variations upon the +famous sentence, 'God has, in his mercy, given you a strong pair of legs +and arms, instead of which you go about the country stealing ducks'; and +he would detail absurd or trifling stories with an excess of solemnity +which betrayed to the intelligent his perception of their comic side. + +Fitzjames thought, and I believe correctly, that he was at his best when +trying prisoners, and was also perhaps conscious, with equal reason, I +believe, that no one could do it better. His long experience and +thorough knowledge of the law of crime and of evidence were great +qualifications. His force of character combined with his hatred of mere +technicalities, and his broad, vigorous common sense, enabled him to go +straight to the point and to keep a firm hand upon the whole management +of the case. No rambling or irrelevance was possible under him. His +strong physique, and the deep voice which, if not specially harmonious, +was audible to the last syllable in every corner of the court, +contributed greatly to his impressiveness. He took advantage of his +strength to carry out his own ideal of a criminal court as a school of +morality. 'It may be truly said,' as he remarks, 'that to hear in their +happiest moments the summing up of such judges as Lord Campbell, Lord +Chief Justice Erle, or Baron Parke, was like listening not only (to use +Hobbes's famous expression) to law living and armed, but to justice +itself.'[189] He tried successfully to follow in their steps. + +Justice implies fair play to the accused. I have already noticed how +strongly he insists upon this in his writings. They show how deeply he +had been impressed in his early years at the bar by the piteous +spectacle of poor ignorant wretches, bewildered by an unfamiliar scene, +unable to collect their thoughts, or understand the nature of the +proceedings, and sometimes prevented by the very rules intended for +their protection from bringing out what might be a real defence. Many +stories have been told me of the extreme care with which he would try to +elicit the meaning of some muddled remonstrance from a bewildered +prisoner, and sometimes go very near to the verge of what is permitted +to a judge by giving hints which virtually amounted to questions, and so +helping prisoners to show that they were innocent or had circumstances +to allege in mitigation. He always spoke to them in a friendly tone, so +as to give them the necessary confidence. A low bully, for example, was +accused of combining with two women to rob a man. A conviction seemed +certain till the prisoners were asked for their defence; when one of +them made a confused and rambling statement. Fitzjames divined the +meaning, and after talking to them for twenty minutes, during which he +would not directly ask questions, succeeded in making it clear that the +prosecutor was lying, and obtained an acquittal. One other incident out +of many will be enough. A man accused of stabbing a policeman to avoid +arrest, pleaded guilty and was sentenced to seven years' penal +servitude. On being removed by the warders he clung to the rail, +screaming, 'You can't do it. + +You don't know what you are doing!' Fitzjames shouted to the warders to +put him back; discovered by patient hearing that the man was meaning to +refer to some circumstance in extenuation, and after calling the +witnesses found that the statement was confirmed. 'Now, you silly +fellow,' he said, 'if you had pleaded "not guilty," as I told you, all +this would have come out. It is true that I did not know what I was +doing, but it was your own fault.' He then reduced the sentence to nine +months, saying, 'Does that satisfy you?' 'Thank you, my Lord,' replied +the man, 'that's quite right,' and left the court quite cheerfully. +Fitzjames was touched by the man's confidence in a judge, and by his +accurate knowledge of the proper legal tariff of punishment. Fitzjames +was scrupulously anxious in other ways not to wrest the law, even if +unsatisfactory in itself, out of dislike to the immediate offender. One +instance is given by the curious case of the Queen v. Ashwell (in 1885). +A man had borrowed a shilling from another, who gave him a sovereign by +mistake. The borrower discovered the mistake an hour afterwards, and +appropriated the sovereign. Morally, no doubt, he was as dishonest as a +thief. But the question arose whether he was in strict law guilty of +larceny. Fitzjames delivered an elaborate judgment to show that upon the +accepted precedents of law, he was not guilty, inasmuch as the original +act of taking was innocent. + +Another aspect of justice, upon which Fitzjames dwells in his books, was +represented in his practice. A judge, according to him, is not simply a +logic machine working out intellectual problems, but is the organ of the +moral indignation of mankind. When, after a studiously fair inquiry, a +man had been proved to be a scoundrel, he became the proper object of +wrath and of the punishment by which such wrath is gratified. Fitzjames +undeniably hated brutality, and especially mean brutality; he thought +that gross cruelty to women and children should be suppressed by the +lash, or, if necessary, by the gallows. His sentences, I am told, were +not more severe than those of other judges: though mention is made of +one case in early days in which he was thought to be too hard upon a +ruffian who, on coming out of gaol, had robbed a little child of a +sixpence. But his mode of passing sentence showed that his hatred of +brutality included hatred of brutes. He did not affect to be reluctant +to do his duty. He did not explain that he was acting for the real good +of the prisoner, or apologise for being himself an erring mortal. He +showed rather the stern satisfaction of a man suppressing a noxious +human reptile. Thus, though he carefully avoided anything savouring of +the theatrical, the downright simplicity with which he delivered +sentence showed the strength of his feeling. He never preached to the +convicts, but spoke in plain words of their atrocities. The most +impressive sentence I ever heard, says one of his sons, was one upon a +wife-murderer at Norwich, when he rigidly confined himself to pointing +out the facts and the conclusiveness of the evidence. Another man was +convicted at Manchester of an attempt to murder his wife. He had stabbed +her several times in the neck, but happened to miss a fatal spot; and he +cross-examined her very brutally on the trial. Fitzjames, in delivering +sentence, told him that a man who had done the same thing, but with +better aim, 'stood at the last assizes where you now stand, before the +judge who is now sentencing you. The sentence upon him was that he +should be hanged by the neck till he was dead, and he was hanged by the +neck till he was dead.' The words emphatically pronounced produced a +dead silence, with sobs from the women in court. It was, he proceeded, +by a mere accident that the result of the prisoner's crime was +different, and that, therefore, the gravest sentence was the only proper +sentence; and that is 'that you be kept in penal servitude for the term +of your natural life.' This again was spoken with extreme earnestness: +and the 'life' sounded like a blow. There was a scream from the women, +and the prisoner dropped to the ground as if he had been actually +struck. Fitzjames spoke as if he were present at the crime, and uttering +the feelings roused by the ferocious treatment of a helpless woman. + +Some of his letters record his sense of painful responsibility when the +question arose as to reprieving a prisoner. He mentions a case in which +he had practically had to decide in favour of carrying out a capital +sentence. 'For a week before,' he writes, 'I had the horrible feeling of +watching the man sinking, and knowing that I had only to hold out my +hand to save his life. I felt as if I could see his face and hear him +say, "Let me live; I am only thirty-five; see what a strong, vigorous, +active fellow I am, with perhaps fifty years before me: must I die?" and +I mentally answered, Yes, you must. I had no real doubts and I feel no +remorse; but it was a very horrible feeling--all the worse because when +one has a strong theoretical opinion in favour of capital punishment one +is naturally afraid of being unduly hard upon a particular wretch to +whom it is one's lot to apply the theory.' On another occasion he +describes a consultation upon a similar case with Sir W. Harcourt, then +Home Secretary. Both of them felt painfully the contrast with their old +free conversations, and discussed the matter with the punctilious +ceremony corresponding to the painfulness of the occasion. There was +something, as they were conscious, incongruous in settling a question of +life and death in a talk between two old friends. + +I must briefly mention two such cases which happened to excite public +attention. On July 27 and 28, 1887, a man named Lipski was tried for a +most brutal murder and convicted. His attorney wrote a pamphlet +disputing the sufficiency of the evidence.[190] Fitzjames was trying a +difficult patent case which took up the next fortnight (August 1 to 13). +He saw the attorney on Monday, the 8th, and passed that evening and the +next morning in writing his opinion to the Home Secretary (Mr. H. +Matthews). On Thursday he had another interview with the attorney and a +thorough discussion of the whole matter with Mr. Matthews. Some points +had not been properly brought out on the trial; but the inquiry only +strengthened the effect of the evidence. Mr. Matthews decided not to +interfere, and Fitzjames went to stay with Froude at Salcombe on the +Saturday. Meanwhile articles full of gross misstatements had appeared in +certain newspapers. Fitzjames himself reflected that his occupation with +the patent case had perhaps prevented his giving a full consideration to +the case, and that an immediate execution of the sentence would at least +have an appearance of undue haste. He therefore telegraphed to suggest a +week's respite, though he felt that the action might look like yielding +to the bullying of a journalist. Mr. Matthews had independently granted +a respite upon a statement that a new piece of evidence could be +produced. Fitzjames returned on the Monday, and spent a great part of +the week in reading through all the papers, reexamining a witness, and +holding consultations with Mr. Matthews. The newspapers were still +writing, and 100 members of Parliament signed a request for a +commutation of the sentence. After the most careful consideration, +however, Fitzjames could entertain no reasonable doubt of the rightness +of the verdict, and Mr. Matthews agreed with him. A petition from three +jurors was sent in upon Sunday, the 21st, but did not alter the case. +Finally, upon the same afternoon, Lipski confessed his guilt and the +sentence was executed next day. 'I hope and believe that I have kept the +right path,' writes Fitzjames, 'but it has been a most dreadful affair.' +'I hardly ever remember so infamous and horrible a story.' He was +proportionally relieved when it was proved that he had acted rightly. + +The other case, for obvious reasons, must be mentioned as briefly as +possible. On August 7, 1889, Mrs. Maybrick was convicted of the murder +of her husband. The sentence was afterwards commuted with Fitzjames's +approval, and, I believe, at his suggestion, to penal servitude for +life, upon the ground, as publicly stated, that although there was no +doubt that she had administered poison, it was possible that her husband +had died from other causes. A great deal of feeling was aroused: +Fitzjames was bitterly attacked in the press, and received many +anonymous letters full of the vilest abuse. Hatred of women generally, +and jealousy of the counsel for the defence were among the causes of his +infamous conduct suggested by these judicious correspondents. I, of +course, have nothing to say upon these points, nor would I say anything +which would have any bearing upon the correctness of the verdict. But as +attacks were made in public organs upon his behaviour as judge, I think +it right to say that they were absolutely without foundation. His +letters show that he felt the responsibility deeply; and that he kept +his mind open till the last. From other evidence I have not the least +doubt that his humanity and impartiality were as conspicuous in this as +in other cases, and I believe were not impugned by any competent +witnesses, even by those who might doubt the correctness of the +verdict. + +Fitzjames's powers were such as naturally gave him unsurpassed authority +with juries in criminal cases. A distinguished advocate was about to +defend a prisoner upon two similar counts before Fitzjames and another +eminent judge. The man was really guilty: but, said the counsel, and his +prediction was verified, I shall obtain a verdict of 'not guilty' before +the other judge, but not before Stephen. In civil cases, I am told that +an impartial estimate of his merits would require more qualification. +The aversion to technicality and over-subtlety, to which I have so often +referred, appears to have limited his powers. He did not enjoy for its +own sake the process of finding a clue through a labyrinth of refined +distinctions, and would have preferred a short cut to what seemed to him +the substantial merits of the case. He might, for example, regard with +some impatience the necessity of interpreting the precise meaning of +some clause in a legal document which had been signed by the parties +concerned as a matter of routine, without their attention being drawn to +the ambiguities latent in their agreement. His experience had not made +him familiar with the details of commercial business, and he had to +acquire the necessary information rather against the grain. To be a +really great lawyer in the more technical sense, a man must, I take it, +have a mind full of such knowledge, and feel pleasure in exercising the +dialectical faculty by which it is applied to new cases. In that +direction Fitzjames was probably surpassed by some of his brethren; and +he contributed nothing of importance to the elaboration of the more +technical parts of the law. I find, however, that his critics are agreed +in ascribing to him with remarkable unanimity the virtue of +'open-mindedness.' His trenchant way of laying down his conclusions +might give the impression that they corresponded to rooted prejudices. +Such prejudices might of course intrude themselves unconsciously into +his mind, as they intrude into the minds of most of us. But no one could +be more anxious for fair play in argument as in conduct. He would give +up a view shown to be erroneous with a readiness which often seemed +surprising in so sturdy a combatant. He spared no pains in acquiring +whatever was relevant to a case; whether knowledge of unfamiliar facts +or of legal niceties and previous judicial decisions. Though his mind +was not stored with great masses of cases, he never grudged the labour +of a long investigation. He aimed at seeing the case as a whole; and +bringing out distinctly the vital issues and their relation to broad +principles. He used to put the issues before the jury as distinctly as +possible, and was then indifferent to their decision. In a criminal case +he would have been inexpressibly shocked by a wrongful conviction, and +would have felt that he had failed in his duty if a conviction had not +taken place when the evidence was sufficient. In a civil case, he felt +that he had done his work when he had secured fair play by a proper +presentation of the question to the jury. His mastery of the laws of +evidence would give weight to his opinion upon facts; though how far he +might be open to the charge of cutting too summarily knots which might +have been untied by more dexterity and a loving handling of legal +niceties, is a question upon which I cannot venture to speak positively. + +I will only venture to refer to two judgments, which may be read with +interest even by the unprofessional, as vigorous pieces of argument and +lucid summaries of fact. One is the case (1880) of the 'Attorney-General +v. the Edison Telephone Company,'[191] in which the question arose +whether a telephonic message was a telegram. If so, the Company were +infringing the act which gave to the Post Office the monopoly of +transmitting telegrams. It was argued that the telephone transmitted the +voice itself, not a mere signal. Fitzjames pointed out that it might be +possible to hear both the voice transmitted through the air and the +sound produced by the vibrations of the wire. Could the two sounds, +separated by an interval, be one sound? The legal point becomes almost +metaphysical. On this and other grounds Fitzjames decided that a +telephone was a kind of telegraph, and the decision has not been +disturbed. The other case was that of the Queen v. Price,[192] tried at +Cardiff in 1883. William Price, who called himself a Druid, was an old +gentleman of singularly picturesque appearance who had burnt the body of +his child in conformity, I presume, with what he took to be the rites of +the Druids. He was charged with misdemeanour. Fitzjames gave a careful +summary of the law relating to burials which includes some curious +history. He concluded that there was no positive law against burning +bodies, unless the mode of burning produced a nuisance. The general +principle, therefore, applied that nothing should be a crime which was +not distinctly forbidden by law. The prisoner was acquitted, and the +decision has sanctioned the present practice of cremation. Fitzjames, as +I gather from letters, was much interested in the quaint old Druid, and +was gratified by his escape from the law. + + +IV. MISCELLANEOUS OCCUPATIONS + +I have now described the most important labours which Fitzjames +undertook after his appointment to a judgeship. Every minute of the +first six years (1879-85) might seem to have been provided with ample +occupation. Even during this period, however, he made time for a few +short excursions into other matters, and though after 1885 he undertook +no heavy task, he was often planning the execution of the old projects, +and now and then uttering his opinions through the accustomed channels. +He was also carrying on a correspondence, some of which has been kindly +shown to me. The correspondence with Lord Lytton continued, though it +naturally slackened during Lytton's stay in England, from 1880 to 1887. +It revived, though not so full and elaborate as of old, when, in 1887, +Lytton became ambassador at Paris. Fitzjames's old friend, Grant Duff, +was Governor of Madras from 1881 to 1886, and during that period +especially, Fitzjames wrote very fully to Lady Grant Duff, who was also +a correspondent both before and afterwards. If I had thought it +desirable to publish any number of these or the earlier letters, I might +have easily swelled this book to twice or three times its size. That is +one good reason for abstaining. Other reasons are suggested by the +nature of the letters themselves. They are written with the utmost +frankness, generally poured out at full speed in intervals of business +or some spare moments of his so-called vacation. They made no +pretensions to literary form, and approach much more to discursive +conversations than to anything that suggests deliberate composition. +Much of them, of course, is concerned with private matters which it +would be improper to publish. A large part, again, discusses in an +unguarded fashion the same questions of which he had spoken more +deliberately in his books. There is no difference in the substance, and +I have thought it only fair to him to take his own published version of +his opinions, using his letters here and there where they incidentally +make his views clearer or qualify sharp phrases used in controversy. I +have, however, derived certain impressions from the letters of this +period and from the miscellaneous articles of the same time; which I +shall endeavour to describe before saying what remains to be said of his +own personal history. + +One general remark is suggested by a perusal of the letters. Fitzjames +says frequently and emphatically that he had had one of the happiest of +lives. In the last letter of his which I have seen, written, indeed, +when writing had become difficult for him, he says that he is 'as happy +as any man can be,' and had nothing to complain of--except, indeed, his +illegible handwriting. This is only a repetition of previous statements +at every period of his life. When he speaks of the twenty-five years of +long struggle, which had enabled him to rise from the bar to the bench, +he adds that they were most happy years, and that he only wishes that +they could come over again. It is difficult, of course, to compare our +lot with that of our neighbours. We can imagine ourselves surrounded by +their circumstances, but we cannot so easily adopt their feelings. +Fitzjames very possibly made an erroneous estimate of the pains and +pleasures which require sensibilities unlike his own; and conversely it +must be remembered that he took delight in what would to many men be a +weariness of the flesh. The obviously sincere belief, however, in his +own happiness proves at least one thing. He was thoroughly contented +with his own position. He was never brooding over vexations, or dreaming +of what might have been. Could he have been asked by Providence at any +time, Where shall I place you? his answer would almost always have been, +Here. He gives, indeed, admirable reasons for being satisfied. He had +superabundant health and strength, he scarcely knew what it was to be +tired, though he seemed always to be courting fatigue, or, if tired, he +was only tired enough to enjoy the speedy reaction. His affections had +a strength fully proportioned to his vigour of mind and body; his +domestic happiness was perfect; and he had a small circle of friends +both appreciative and most warmly appreciated. Finally, if the outside +world was far from being all that he could wish, it was at least +superabundantly full of interest. Though indifferent to many matters +which occupy men of different temperament, he had quite enough not only +to keep his mind actively engaged, but to suggest indefinite horizons of +future inquiry of intense interest. He was in no danger of being bored +or suffering from a famine of work. Under such conditions, he could not +help being happy. + +Yet Fitzjames's most decided convictions would have suited a +thorough-going pessimist. Neither Swift nor Carlyle could have gone much +beyond him in condemning the actual state of the political or religious +condition of the world. Things, on the whole, were in many directions +going from bad to worse. The optimist is apt to regard these views as +wicked, and I do not know whether it will be considered as an +aggravation or an extenuation of his offence that, holding such +opinions, Fitzjames could be steadily cheerful. I simply state the fact. +His freedom from the constitutional infirmities which embittered both +the great men I have mentioned, and his incomparably happier domestic +circumstances, partly account for the difference. But, moreover, it was +an essential part of his character to despise all whining. There was no +variety of person with whom he had less sympathy than the pessimist +whose lamentations suggest a disordered liver. He would have fully +accepted the doctrine upon which Mr. Herbert Spencer has insisted, that +it is a duty to be happy. Moreover, the way to be happy was to work. +Work, I might almost say, was his religion. 'Be strong and of a good +courage' was the ultimate moral which he drew from doubts and +difficulties. Everything round you may be in a hideous mess and jumble. +That cannot be helped: take hold of your tools manfully; set to work +upon the job that lies next to your hand, and so long as you are working +well and vigorously, you will not be troubled with the vapours. Be +content with being yourself, and leave the results to fate. Sometimes +with his odd facility for turning outwards the ugliest side of his +opinions, he would call this selfishness. It is a kind of selfishness +which, if everyone practised it, would not be such a bad thing. + +I must mention, though briefly, certain writings which represent his +views upon religious matters: I have sufficiently indicated his +position, which was never materially changed. His thoughts ran in the +old grooves, though perhaps with a rather clearer perception of their +direction. In June 1884 he published an article upon the 'Unknown and +the Unknowable' in the 'Nineteenth Century,' declaring that Mr. Herbert +Spencer's 'Unknowable' and Mr. Harrison's 'Humanity' were mere shadowy +figments. 'Religion,' he maintains, will not survive theology. To this, +however, he adds, with rather surprising calmness, that morality will +survive religion. If the Agnostics and Positivists triumph, it will be +transformed, not abolished. The Christian admiration for self-sacrifice, +indeed, and the Christian mysticism will disappear, and it will turn out +that the respectable man of the world and the lukewarm believer were +after all in the right. Considering his own dislike to the mystic and +the priestly view of things, this might almost seem to imply a +reconciliation with the sceptics. He observes, indeed, in a letter that +there is really little difference between himself and Mr. Harrison, +except in Mr. Harrison's more enthusiastic view of human nature. But he +confesses also that the article has given pleasure to his enemies and +pain to his friends. Though his opinions, in short, are sceptical, the +consequences seem to him so disagreeable that he has no desire to insist +upon them. In fact, he wrote little more upon these topics. He was, +indeed, afterwards roused to utterance by an ingenious attempt of Mr. +Mivart to show a coincidence between full submission to the authority of +the Catholic Church and an equal acceptance of the authority of reason. +In a couple of articles in the 'Nineteenth Century' (October 1887 and +January 1888), he argued with his old vigour that Mr. Mivart was in fact +proposing to put a match in a powder barrel and expect half to explode +and the other half to remain unaffected. This was his last encounter +upon the old question of authority. In the same year (April and May +1888) he wrote two articles upon a book by which he was singularly +interested, Professor Max Müller's 'Science of Thought'; he expounds +Professor Max Müller's philology in the tone of an ardent disciple, but +makes his own application to philosophy. I do not suppose that the +teacher would accept all the deductions of his follower. Fitzjames, in +fact, found in the 'Science of Thought' a scientific exposition of the +nominalism which he had more or less consciously accepted from Hobbes or +Horne Tooke. Max Müller, he says, in a letter, has been knocking out the +bottom of all speculative theology and philosophy. Thought and language, +as he understands his teacher to maintain, are identical. Now language +is made up of about 120 roots combined in various ways. The words +supposed to express more abstract conceptions, some of them highly +important in theology, are mere metaphors founded upon previous +metaphors, twisted and changed in meaning from century to century. +Nothing remains but an almost absolute scepticism, for on such terms no +certainty can be obtained. In a letter he states that the only problems +which we can really solve are those of space and number; that even +astronomy involves assumptions to which there are 'unanswerable +objections'; that what is loosely called science, Darwinism, for +example, is 'dubious in the extreme'; that theology and politics are so +conjectural as to be practically worthless; and judicial and historical +evidence little more than a makeshift. In short, his doctrine is +'scepticism directed more particularly against modern science and +philosophy.' I do not take these hasty utterances as expressing a +settled state of opinion. I only quote them as vehement expressions of +an instinctive tendency. His strong conviction of the fallacies and +immoralities of the old theological dogmatism was combined with an +equally strong conviction of the necessity of some embodiment of the +religious instincts and of the impotence of the scientific dogmatism to +supply it. He therefore was led to a peculiar version of the not +uncommon device of meeting the sceptic by a more thorough-going +scepticism. It is peculiar because he scorned to take the further step +of accepting a dogmatic belief on sceptical grounds; but it certainly +left him in a position of which silence was, if I may say so, the only +obvious expression of his feeling. + +One curious illustration of his feelings is given by an utterance at the +beginning of this period. Nobody had less tendency to indulge in +versification. When a man has anything to say, he observes to Lord +Lytton on one occasion, as an excuse for not criticising his friend +adequately, 'I am always tempted to ask why he cannot say it in plain +prose.' I find now that he once wrote some lines on circuit, putting a +judgment into rhyme, and that they were read with applause at a dinner +before the judges. They have disappeared; but I can quote part of his +only other attempt at poetry. Tennyson's poem called 'Despair' had just +appeared in the 'Nineteenth Century' for November 1881. The hero, it +will be remembered, maddened by sermons about hell and by 'know-nothing' +literature, throws himself into the sea with his wife and is saved by +his preacher. The rescuer only receives curses instead of thanks. +Fitzjames supplies the preacher's retort.[193] I give a part; omitting a +few lines which, I think, verged too much on the personal:-- + + So you're minded to curse me, are you, for not having let you be, + And for taking the trouble to pull you out when your wife was drowned + in the sea? + I'm inclined to think you are right--there was not much sense in it; + But there was no time to think--the thing was done in a minute. + You had not gone very far in; you had fainted where you were found, + You're the sort of fellow that likes to drown with his toe on the + ground. + However, you turn upon me and my creed with all sorts of abuse, + As if any preaching of mine could possibly be of use + To a man who refused to see what sort of a world he had got + To live in and make the best of, whether he liked it or not. + I am not sure what you mean; you seem to mean to say + That believing in hell you were happy, but that one unfortunate day + You found out you knew nothing about it, whereby the troubles of life + Became at once too heavy to bear for yourself and your wife. + That sounds silly; so, perhaps, you may mean that all is wrong all + round, + My creed and the know-nothing books, and that truth is not to be + found-- + That's sillier still: for, if so, the know-nothing books are right, + And you're a mere spiritless cur who can neither run nor fight, + Too great a coward to live and too great a coward to die, + Fit for nothing at all but just to sit down and cry. + + . . . . . . . . . + + Why, man, we're all in one boat, as everyone can see, + Bishops, and priests, and deacons, and poor little ranters like me. + There's hell in the Church of England and hell in the Church of Rome, + And in all other Christian Churches, abroad as well as at home. + The part of my creed you dislike may be too stern for you, + Many brave men believe it--aye, and enjoy life, too. + The know-nothing books may alarm you; but many a better man + Knows he knows nothing and says so, and lives the best life he can. + If there is a future state, face its hopes and terrors gravely; + The best path to it must be to bear life's burthens bravely. + And even if there be none, why should you not live like a man, + Enjoying whatever you have as much and as long as you can? + In the world in which we are living there's plenty to do and to know; + And there's always something to hope for till it's time for us to go. + 'Despair' is the vilest of words, unfit to be said or thought, + Whether there is a God and a future state or not. + If you really are such a wretch, that you're quite unfit to live, + And ask my advice, I'll give you the best that I have to give: + Drown yourself by all means; I was wrong and you were right. + I'll not pull you out any more; but be sure you drown yourself quite. + +'Despair is the vilest of words.' That expresses Fitzjames's whole +belief and character. Faiths may be shaken and dogmas fade into +meaningless jumbles of words: science may be unable to supply any firm +ground for conduct. Still we can quit ourselves like men. From doubt and +darkness he can still draw the practical conclusion, 'Be strong and of a +good courage.' And, therefore, Fitzjames could not be a pessimist in the +proper sense; for the true pessimist is one who despairs of the +universe. Such a man can only preach resignation to inevitable evil, and +his best hope is extinction. Sir Alfred Lyall's fine poem describes the +Hindoo ascetic sitting by the bank of the sacred stream and watching the +legions as they pass while cannon roar and bayonets gleam. To him they +are disturbing phantoms, and he longs for the time when they will +flicker away like the smoke of the guns on the windswept hill. He +meanwhile sits 'musing and fasting and hoping to die.' Fitzjames is the +precise antithesis: his heart was with the trampling legions, and for +the ascetic he might feel pity, but certainly neither sympathy nor +respect. He goes out of his way more than once to declare that he sees +nothing sublime in Buddhism. 'Nirvana,' he says in a letter, 'always +appeared to me to be at bottom a cowardly ideal. For my part I like far +better the Carlyle or Calvinist notion of the world as a mysterious hall +of doom, in which one must do one's fated part to the uttermost, acting +and hoping for the best and trusting' that somehow or other our +admiration of the 'noblest human qualities' will be justified. He had +thus an instinctive dislike not only for Buddhism, but for the strain of +similar sentiment in ascetic versions of Christianity. He had a great +respect for Mohammedanism, and remarks that of all religious ceremonies +at which he had been present, those which had most impressed him had +been a great Mohammedan feast in India and the service in a simple +Scottish kirk. There, as I interpret him, worshippers seem to be in the +immediate presence of the awful and invisible Power which rules the +universe; and without condescending to blind themselves by delusive +symbols and images and incense and priestly magic, stand face to face +with the inscrutable mystery. The old Puritanism comes out in a new +form. The Calvinist creed, he says in 'Liberty, Equality, Fraternity,' +was the 'grain on which the bravest, hardiest, and most vigorous race of +men that ever trod the earth were nourished.' That creed, stripped of +its scholastic formulas, was sufficient nourishment for him. He +sympathises with it wherever he meets it. He is fond of quoting even a +rough blackguard, one Azy Smith, who, on being summoned to surrender to +a policeman, replied by sentencing 'Give up' to a fate which may be left +to the imagination. Fitzjames applied the sentiment to the British +Empire in India. He was curiously impressed, too, by some verses which +he found in an Australian newspaper and was afterwards given to quoting. +They turned out to be written by Adam Lindsay Gordon (the 'Sick +Stockrider'). + + I have had my share of pastime, and I've done my share of toil, + And life is short--the longest life a span. + I care not now to tarry for the corn or for the oil, + Or for the wine that maketh glad the heart of man; + For good undone and time misspent and resolutions vain + 'Tis somewhat late to trouble--this I know; + I would live the same life over if I had to live again + And the chances are I go where most men go. + +I am perfectly well aware of the comments which that statement may +suggest. The orthodox may, if they please, draw a moral for their own +tastes; and I could draw a moral which is not quite orthodox. I only say +that I have tried to describe his final position in the matter, without +reserve; and that, in my opinion, whatever else it shows, it reveals +both the sincerity and the manliness of a man who dared to look facts in +the face. + +I must speak, though briefly, of his political sympathies in this +period, for they were exceedingly deep and strong. His position as a +judge gave him the solace of an employment which could divert his mind +from annoying reflections. It may be held that it should also have +restrained him more completely than it did from taking any part in party +controversies. I confess that to be my own opinion. He felt that he +ought to keep within limits; but I cannot help thinking that they might +have been a little closer than he would quite acknowledge. The old +journalistic impulse, however, stirred within him when he saw certain +political moves, and he found it impossible quite to keep silence. The +first occasion of his writing was upon the starting of the 'St. James's +Gazette,' under the editorship of his old friend Mr. Greenwood. Both +personal and political sympathy induced him, as he put it, 'to take Mr. +Greenwood's shilling,' and I believe that he also enlisted Maine. +Besides the poem which I have quoted, he wrote a good many articles upon +legal and literary topics from 1881 to 1883, and some which came very +close to contemporary politics. The doctrine may be pretty well summed +up in the phrase which he quotes more than once--[Greek: Dêmos psêphizôn +megalên archên dialysei.] I need not follow the applications which he +indicates both to Indian matters and to Mr. Gladstone's Irish policy. + +He ceased to contribute after the beginning of 1883, but he wrote +occasional letters under his own name to the 'Times.' The chief of +these (I believe that there were others) were reprinted, and attracted +some notice. In 1883 a question arose in which he had a special +interest. In passing the Criminal Procedure Bill he had accepted what +was described as a compromise. Magistrates were to receive powers of +dealing summarily in trifling cases with Europeans who had previously +had a right to be tried by juries before the High Courts. Fitzjames +accepted the proposal that the power should be entrusted only to +magistrates of European birth. The 'Ilbert Bill,' in 1883, proposed to +remove this restriction, and so to confer a right of imprisoning +Europeans for three months upon native magistrates, of whom there were +now a greater number. Fitzjames, whose name had been mentioned in the +controversy, wrote very earnestly against this proposal.[194] He +asserted the right of Englishmen to be tried by magistrates who could +understand their ways of thought, and approved the remark that if we +were to remove all anomalies from India, our first step should be to +remove ourselves. This, however, was, to his mind, only one example of +the intrusion of an evil principle. A more serious case occurred upon +Mr. Gladstone's introduction of the first Home Rule Bill in 1886. +Fitzjames wrote some elaborate letters upon the 'Irish Question,' when +the measure was anticipated, and wrote again upon the bill when the +debates upon Mr. Gladstone's proposals were in progress.[195] The +letters begin by disavowing any 'party politics'--a phrase which he does +not consider to exclude an emphatic expression of opinion both upon Home +Rule and upon the Land Legislation. It is entirely superfluous to +summarise arguments which have been repeated till nobody can want to +hear more of them. Briefly, I may say that Fitzjames's teaching might be +summarised by saying that Ireland ought to be governed like +India--justly, and in any case firmly. The demands both for Home Rule +and for land legislation are, according to him, simply corollaries from +the general principles of Jacobinism and Socialism. The empire will be +destroyed and the landlords will be plundered. Virtually we are dealing +with a simple attempt at confiscation supported by an organised system +of crime. The argument is put with his usual downright force, and +certainly shows no symptoms of any decline of intellectual vigour. He +speaks, he says, impelled by the 'shame and horror' which an Englishman +must feel at our feebleness, and asks whether we are cowards to be +kicked with impunity? Sometimes he hoped, though his hopes were not +sanguine, that a point would yet be reached at which Englishmen would be +roused and would show their old qualities. But as a rule he turned, as +his letters show, from the contemplation of modern politics with simple +disgust. He is glad that he is, for the time at least, behind a safe +breakwater, but no one can say how much longer it will withstand the +advancing deluge. + +Three months' rest after the attack of 1885 enabled him to go the summer +circuit, and during the latter part of the year he was recovering +strength. He became so much better that he was, perhaps, encouraged to +neglect desirable precautions, and early in 1886 he writes that he has +been able to dismiss from his mind a passing fear which had been vaguely +present, that he might have to resign. In the following September, Mr. +W. H. Smith requested him to become chairman of a Commission to inquire +into the Ordnance Department. What he learnt in that capacity +strengthened his conviction as to the essential weakness of our +administrative system; although the rumours of corruption, to which, I +believe, the Commission was owing, were disproved. He made, however, +such suggestions as seemed practicable under the circumstances. While +the Commission lasted he presided three days a week, and sat as judge +upon the other three. He felt himself so competent to do his duties as +to confirm his belief that he had completely recovered. He did a certain +amount of literary work after this. He made one more attempt to produce +a second edition of the 'View of the Criminal Law.' Indeed, the +title-page gives that name to his performance. Once more, however, he +found it impossible to refrain from re-writing. The so-called second +edition is more properly an abbreviated version of the 'History,' though +the reports of trials still keep their place; and, as the whole forms +only one moderately thick volume, it represents much less labour than +its predecessors. It includes, however, the result of some later +inquiries and of his judicial experience. He abandons, for example, an +opinion which he had previously maintained in favour of a Court of +Appeal in criminal cases, and is now satisfied with the existing system. +In this shape it is virtually a handbook for students, forming an +accompaniment to the 'Digest' and the 'History.' It was the last of his +works upon legal topics. + +Meanwhile, if he wrote little, he was still reading a great variety of +books, and was deeply interested in them. His letters are full of +references to various authors, old and new. His criticisms have the +primary merits of frankness and independence. He says exactly what he +feels, not what the critics tell him that he ought to feel. No criticism +can be really valuable which does not fulfil those conditions. I must +admit, however, that a collection of his remarks would include a good +many observations rather startling to believers in the conventional +judgments. Purely literary qualities impress him very little unless they +are associated with some serious purpose. He shows the same sort of +independence which enabled him to accept a solitary position in +religious and political matters. In private letters, moreover, he does +not think it necessary to insist upon the fact, which he would have +fully admitted, that the great object of criticism is always the critic +himself. A man who says that he can't see, generally proves that he is +blind, not that there is no light. If only for this reason, I would not +quote phrases which would sound unduly crude or even arrogant when taken +as absolute judgments, instead of being, as they often are, confessions +of indifference in the form of condemnations. When a great writer really +appeals to him, he shows no want of enthusiasm. During the enforced rest +in 1885 he studied Spanish with great zeal; he calls it a 'glorious +language,' and had the proverbial reward of being enabled to read 'Don +Quixote' in the original. 'Don Quixote,' he says, had always attracted +him, even in the translations, to a degree for which he cannot quite +account. His explanation, however, is apparently adequate, and certainly +characteristic. He sees in Cervantes a man of noble and really +chivalrous nature, who looks kindly upon the extravagance which +caricatures his own qualities, but also sees clearly that the highest +morality is that which is in conformity with plain reason and common +sense. Beneath the ridicule of the romances there is the strongest +sympathy with all that is really noble. + +After Spanish and Cervantes, Fitzjames turned to Italian and Dante. +Dante, too, roused his enthusiasm, and he observes, quaintly enough, +that he means to be as familiar with the 'Divina Commedia' as he once +was with Bentham--two authors rarely brought into contact. Dante +conquered him the more effectually by entering over the ruins of Milton. +Some years before he had pronounced the 'Paradise Lost' to be 'poor, +contradictory, broken-down stuff, so far as the story goes.' He inferred +that 'poetry was too slight an affair to grapple with such an awful +subject.' He had, however, already read Dante in Cary's translation, and +thereby recognised something far greater. When he came to the original +he was profoundly impressed. It is strange, he says, that he has learnt +for the first time at the age of sixty what a really great poem could +be. Poor Milton's adaptation of pagan mythology to the Hebrew legends, +in order to expound Puritan theology, results in a series of solecisms, +which even the poet could not expect his readers to take seriously. The +story, taken for history, certainly breaks down sufficiently to justify +a severe remark. But Dante's poem, embodying a consistent imagery into +which was worked the whole contemporary philosophy and theology, is of +absorbing interest even to those who are comparatively indifferent to +its more purely literary merits. Fitzjames does not make any detailed +criticisms, but fittingly expresses his astonishment and admiration upon +Dante's revelation of a new world of imagination. I think that it is +possible to show fitting reverence for Dante without deposing Milton +from his much lower, though still very lofty place. But to one brought +up in the old English traditions it was difficult to avoid the rather +superfluous contrast. + +With the help of such studies and frequent visits to old friends, and +minor literary tasks, Fitzjames could find ample means of filling up any +spaces left by his judicial duties. In spite of the disgust with which +he regarded the political world, he was happy in his own little world; +and his time passed in a peaceful round of satisfactory work. A few +troublesome cases, those especially of which I have spoken, gave him +occasional worry; but he could adhere to his principle of never fretting +unnecessarily. But now was to begin the painful experience which comes +to the survivors when the ranks begin to thin. He felt such losses +deeply, if with little display of feeling. I find a remark in one of his +letters which is, I think, characteristic. He says that his first +feeling upon a severe blow had been something like shame at not +suffering more. But in a few weeks the sense of loss had become deeper +and stronger; and he had to remind himself of the necessity of +conquering his depression. I have no need, I hope, to dwell upon the +strength of his affections. I can never forget one occasion when his +sympathies were deeply stirred; and when his sense of a certain +awkwardness in expressing himself, a relic of his old prejudice against +'sentimentalism,' served only to bring out most pathetically the power +of the emotions with which he was struggling. + +Two severe losses marked the year 1888. Maine died on February 3. The +old friendship had lost none of its warmth; and Fitzjames had frequently +enjoyed visits to the lodge at Trinity Hall, where Maine, as master, +presided over the Christmas gatherings. Fitzjames commemorated his +friend by an article in the 'Saturday Review.[196] In a warm eulogy, he +praises the 'clearness and sobriety of Maine's generalisations as well +as their intrinsic probability,' and declares that the books were +written 'as if by inspiration.' Maine, he says, was equally brilliant as +a journalist, as a statesman, and as a thinker. Fitzjames speaks, though +a little restrained by his usual reserve, of the 'brotherly intimacy of +forty years, never interrupted by a passing cloud'; and ends by saying +that there are 'persons to whom the world can never have the same aspect +again as when Maine lived in it.' It had been a great pleasure, I may +add, that he had been able to appoint one of his friend's sons, who died +soon after the father, to a clerkship of assize on the South Wales +circuit. + +In the autumn Maine was followed by Venables. Fitzjames paid an annual +visit to the house where Venables lived with his brother at Llysdinam, +on the border of Radnorshire. He often mentions in his letters the +filial affection with which he regarded Venables. In the previous year +(1887) he had an opportunity of expressing this more directly than +usual. One of Venables' friends, Mr. Pember, had suggested that they +might show their affection by presenting a stained glass window to a +church which Venables had built. Fitzjames took up the plan warmly, and +with the help of a few other friends carried out the scheme. When it was +made known to Venables, who of course was much gratified, Fitzjames +wrote to him a letter (August 1, 1887) of which I quote the important +part. 'I found your letter on my return from the country this morning. +You are quite right in thinking that I did say a great deal less than I +meant. I feel shy in putting into quite plain words what I feel about +you; but I do not like such things to prevent me from saying just once +that I like you, honour you, and respect and admire you more than almost +any man I ever knew. For nearer forty than thirty years you have been to +me a sort of spiritual and intellectual uncle or elder brother, and my +feelings about you have constantly grown and strengthened as my own +experience of men and books has ripened and deepened and brought me into +closer and closer sympathy with you and more complete conscious +agreement with all your opinions and sentiments. I can recall none of +your words and writings which I have not cordially approved of, and I +shall always feel deeply grateful to Mrs. Lyster Venables (Venables' +sister-in-law), for whom also I feel the warmest friendship, and to +Pember for suggesting to me a way of showing my feelings about you, +which would never have occurred to a person so abundantly gifted with +clumsy shyness as myself. However, I do not believe you will like me the +worse for having the greatest possible difficulty in writing to any man +such a letter as this.' + +The three lights of the window, representing Moses, Aaron, and Joshua, +were intended as portraits of Venables and his two brothers. Beneath was +the inscription suggested by Mr. Pember, 'Conditori hujus ecclesiæ +amicissimi quidam.' Fitzjames adds that he had felt 'a passing wish' to +add his favourite words, 'Be strong and of a good courage,' which, at +his suggestion, Dean Stanley had taken as the text for a funeral sermon +upon Lord Lawrence. I will only add that Fitzjames had said in private +letters substantially what he said to Venables himself. On October 8, +1888, he heard of his old friend's death, and again wrote an article of +warm appreciation in the 'Saturday Review.' + + +V. JAMES KENNETH STEPHEN + +I have now to give a brief notice of events which had a saddening +influence upon the later years. Fitzjames, as I have remarked, had seen +comparatively little of his elder children in their infancy. As they +grew up, however, they had been fully admitted to his intimacy and +treated on the footing of trusted and reasonable friends. The two +younger daughters had been playthings in their infancy, and grew up in +an atmosphere of warm domestic affection. Just before Venables' death +Fitzjames made a little tour in the West of Ireland with his daughter +Rosamond, who has preserved a little account of it. I shall only say +that it proves that she had a delightful travelling companion; and that +his straightforward ways enabled him to be on the friendliest terms with +the natives whom he encountered. Among the frequent declarations of the +happiness of his life, he constantly observes that one main condition +was that his children had never given him a moment's uneasiness. Two, +indeed, had died in infancy; and Frances, a very promising girl, had +died of rheumatic fever July 27, 1880. Such troubles, however deeply +felt, cannot permanently lessen the happiness of a healthy and energetic +life. His three sons grew into manhood; they all became barristers, and +had all acted at different times as his marshals. I shall say nothing of +the survivors; but I must speak briefly of the one who died before his +father. + +James Kenneth Stephen was born on February 25, 1859.[197] His second +name commemorates his father's friendship for his godfather, Kenneth +Macaulay. He was a healthy lad, big and strong, and soon showed much +intellectual promise. He was at the school of Mr. William Browning at +Thorpe Mandeville; and in 1871 won a foundation scholarship at Eton, +where he became the pupil of Mr. Oscar Browning, the brother of his +former master. He already gave promise of unusual physical strength, and +of the good looks which in later years resulted from the singular +combination of power and sweetness in his features. The head of his +division was H. C. Goodhart, afterwards Professor of Latin at the +University of Edinburgh.[198] Other boys in the division were George +Curzon and Cecil Spring Rice. James was surpassed in scholarship by +several of his friends, but enjoyed a high reputation for talent among +his cleverest contemporaries. The school, it appears, was not quite so +much absorbed by the worship of athletics as was sometimes imagined. +James, however, rowed for two years in the boats, while his weight and +strength made him especially formidable at the peculiar Eton game of +football 'at the wall.' The collegers, when supported by his prowess, +had the rare glory of defeating the Oppidans twice in succession. He was +ever afterwards fond of dilating with humorous enthusiasm upon the +merits of that game, and delighted in getting up an eleven of old +Etonians to play his successors in the school. He was, however, more +remarkable for intellectual achievements. With Mr. Spring Rice and +another friend he wrote the 'Etonian,' which lasted from May 1875 to +August 1876; and several of the little poems which he then wrote were +collected afterwards in his 'Lapsus Calami.'[199] They are, of course, +chiefly in the humorous vein, but they show sufficiently that Eton was +to him very different from what it had been to his father. He was a +thoroughly loyal and even enthusiastic Etonian; he satirises a caviller +by putting into his mouth the abominable sentiment-- + + Ye bigot spires, ye Tory towers, + That crown the watery lea, + Where grateful science still adores + The aristocracy. + +His genuine feeling is given in the lines on 'My old School':-- + + And if sometimes I've laughed in my rhymes at Eton, + Whose glory I never could jeopardise, + Yet I'd never a joy that I could not sweeten, + Or a sorrow I could not exorcise, + + By the thought of my school and the brood that's bred there, + Her bright boy faces and keen young life; + And the manly stress of the hours that sped there, + And the stirring pulse of her daily strife. + +To the last he cherished the memory of the school, and carefully +maintained his connection with it. One odd incident occurred in 1875, +when James got up a 'constitutional opposition' to the intrusion of the +revivalist preachers Moody and Sankey. His father wrote him a judicial +letter of advice, approving his action so long as it was kept within due +limits. He takes occasion to draw the moral that the whole power of such +people depends upon the badness of their hearers' consciences. A man who +has nothing to hide, who is 'just, benevolent, temperate and brave,' can +'look at things coolly and rate such people at their value.' Those 'few +words' (i.e. the names of the virtues) 'are the summary of all that is +worth having in life. Never forget any one of them for one moment, +though you need not talk about them any more than you talk about your +watch.' James had a marked influence in the college; he was a leading +orator in the school debating societies; and his good sayings were as +familiarly quoted as those of Sydney Smith or Luttrell in the larger +world. Mr. Cornish, who was his tutor for a time, tells me of the charm +of James's talk with his elders, and says that, although he was careless +on some matters upon which schoolmasters set a high value, he always +showed power and originality. He won an English Essay prize in 1875, the +History prize in 1876 and 1877, the Declamation prize in 1878, and was +one of the 'select' for the Newcastle in 1877. + +James went to King's with a scholarship in 1878. He gave up classics and +took to history. He took a first class (bracketed first in the class) in +the historical tripos, but was only in the second class in the law +tripos. Besides prizes for college essays, he won the 'Member's Prize' +for an essay upon Bolingbroke in 1880, and the Whewell Scholarship for +International Law in 1881. He succeeded in every competition for which +he really exerted himself; although, like his father, he was rather +indifferent to the regular course of academical instruction. Among his +contemporaries, however, he enjoyed the kind of fame which is perhaps of +still better augury for future success. King's College in his day, says +Mr. Browning, was only emerging slowly from the effects of its close +dependence upon Eton. It had been in former days chiefly a little clique +of older schoolboys. James helped much to change this, and distinctly +raised the intellectual tone of the place. He was a well-known speaker +at the Union, of which he was president in 1882. He was an 'Apostle' +too; and in May 1881 his father visited him in Cambridge, and attended a +meeting of the Society where James read a paper. Although, therefore, he +scarcely won such a share of academical honours as might have been +expected, James was regarded by his friends as the man of his time who +was most definitely marked out for distinction in later years. His +friends, indeed, were innumerable; and from all with whom I have +communicated there is a unanimous testimony not only to his intellectual +promise, but to his influence in promoting a high tone of thought and +feeling. His father's letters frequently refer to him. James, he says, +is a 'splendid young fellow'; he will surpass his father in due time, +and be the fourth distinguished man of his name. James, he says once, +using the epithet which in his mouth conveyed the highest praise, is a +'sturdier' fellow in many ways than I was, and writes better than I +could at his age. One achievement of the son rather extorted than +attracted his father's praise. He appeared in a Greek play as Ajax, a +part for which his massive frame and generally noble appearance fitted +him admirably. The father admitted that he had a certain dislike to a +man's exhibiting himself personally, but was reconciled by observing +that James acted more like a gentleman amusing himself than like a +professional performer. + +How far these anticipations of success would ever have been fulfilled +must remain uncertain. James may not have had his father's extraordinary +vigour, but he undoubtedly had one quality in which his father was +defective. He had a surprising facility in making friendly alliances +with all sorts and conditions of men. His opinions partly resembled his +father's. In politics he was of the Conservative tendency, and he was +certainly not of the orthodox persuasion in theology. But he was equally +at ease with Tories and Home Rulers, Roman Catholics and Agnostics; and +his cheery, cordial manners put him at once on the best understanding +with everybody. There was something contagious in the enthusiasm of a +young man who seemed so heartily to appreciate the simple joy of living. +Perhaps his weakness was to be a little too versatile in his sympathies +and interests. + +After taking his degree, James spent some time in Germany and France. He +was elected to a fellowship at King's College in 1885, and as a +candidate wrote dissertations upon 'Political Science' and +'International Law.'[200] He was elected, it is said, as much upon the +strength of his general ability as for any special performance. + +He was called to the bar in 1884, and naturally employed his spare time +upon journalism. He wrote a good deal for Mr. Greenwood in the 'St. +James's Gazette,' and had extraordinary facility as a writer. Mr. +Reginald Smith tells me how James once wrote a leading article in the +train between Paddington and Maidenhead. Many of the little poems which +he contributed to periodicals were improvised. He was famous for wit and +readiness as an after-dinner speaker; and showed an oratorical power in +electioneering speeches which gave the highest hopes of parliamentary +success. Indeed, from all that I have heard, I think that his powers in +this direction made the greatest impression upon his friends, and +convinced them that if he could once obtain an opening, he would make a +conspicuous mark in public life. + +At the end of 1886 he had an accident, the effects of which were far +more serious than appeared at the time. He was staying at Felixstowe, +and while looking (December 29, 1886) at an engine employed in pumping +water he received a terrible blow upon the head. He returned to his work +before long, but it was noticed that for some time he seemed to have +lost his usual ease in composition. He was supposed, however, to have +recovered completely from the effects of the blow. In the early part of +1888 he astonished his friends by producing a small weekly paper called +the 'Reflector.' It appeared from January 1 to April 21, 1888. He +received help from many friends, but wrote the chief part of it himself. +The articles show the versatility of his interests, and include many +thoughtful discussions of politics and politicians, besides excursions +into literature. Perhaps its most remarkable quality was not favourable +to success. It was singularly candid and moderate in tone, and obviously +the work of a thoughtful observer. Probably the only chance of success +for such a periodical would have been to make a scandal by personality +or impropriety. To expect a commercial success from a paper which relied +only upon being well written was chimerical, unless the author could +have afforded to hold out in a financial sense for a much longer period. +The expense gave a sufficient reason for discontinuing it; and it is +now, I fear, to be inferred that the venture was one of the first signs +of a want of intellectual balance. + +Meanwhile, it seemed to indicate that James had literary tastes which +would interfere with his devotion to the bar. Some months later (June +1888) his father appointed him to the clerkship of assize on the South +Wales circuit, which had become vacant by the death of Maine's son. + +He now took comparatively little interest in his profession and spoke of +taking more exclusively to literature. Clearer symptoms showed +themselves before long of the disease caused by the accident. I have no +wish to dwell upon that painful topic. It is necessary, however, to say +that it gradually became manifest that he was suffering from a terrible +disease. He had painful periods of excitement and depression. +Eccentricities of behaviour caused growing anxiety to his family; and +especially to his father, whose own health was beginning to suffer from +independent causes. I will only say that exquisitely painful as the +position necessarily was to all who loved him, there was something +strangely pathetic in his whole behaviour. It happened that I saw him +very frequently at the time; and I had the best reasons for remarking +that, under all the distressing incidents, the old most lovable nature +remained absolutely unaffected. No one could be a more charming +companion, not only to his contemporaries but to his elders and to +children, for whose amusement he had a special gift. He would reason in +the frankest and most good-humoured way about himself and his own +affairs, and no excitement prevented him for a moment from being +courteous and affectionate. + +He resolved at last to settle at Cambridge in his own college in October +1890; resigning his clerkship at the same time. At Cambridge he was +known to everyone, and speedily made himself beloved both in the +University and the town. He spoke at the Union and gave lectures, which +were generally admired. And here, too, in 1891 he published two little +volumes of verse: 'Lapsus Calami' and 'Quo Musa Tendis?' Four editions +of the first were published between April and August.[201] It started +with an address to Calverley, most felicitous of minor poets of +Cambridge; and the most skilful practisers of the art thought that James +had inherited a considerable share of his predecessor's gift. I, +however, cannot criticise. No one can doubt that the playful verses and +the touches of genuine feeling show a very marked literary talent, if +not true poetic power. He seems, I may remark, to have had a special +affinity for Browning, whom he parodied in a way which really implied +admiration. He took occasion to make a graceful apology in some verses +upon Browning's death.[202] But to me the little volume and its +successor speak more of the bright and affectionate nature which it +indicates, and the delight, veiled by comic humour, in his friendships +and in all the school and college associations endeared by his friends' +society. The 'Quo Musa Tendis?' composed chiefly of poems contributed to +various papers in the interval, appeared in September 1891. + +Mr. Oscar Browning quotes some phrases from one of James's letters in +November, which dwell with lively anticipation upon the coming term. For +a time, in fact, he seemed to be in excellent spirits and enjoying his +old pursuits and amusements. But a change in his condition soon +occurred. He had to leave Cambridge at the end of November; and he died +on February 3, 1892. Many bright hopes were buried with him; but those +who loved him best may find some solace in the thought that few men have +been so surrounded by the affection of their fellows, or have had, in +spite of the last sad troubles, so joyous or so blameless a life. + +James's college friends have put up a brass to his memory in King's +College Chapel. His family erected a fountain near Anaverna. His father +added a drinking-cup as his own special gift, and took the first draught +from it October 25, 1892, when about to take his final leave of the +place. + + +VI. CONCLUSION + +What remains to be told of Fitzjames's life shall be given as briefly as +may be. The death of James had been preceded by the death of Lord +Lytton, November 24, 1891, which was felt deeply by the survivor. His +own health gave fresh cause for anxiety during the latter part of 1889, +though happily he had little suffering at any time beyond some +incidental inconvenience. On March 17, 1890, he had an attack of illness +during the assizes at Exeter resembling that which he had previously had +at Derby. He was again ordered to rest for three months. Sir A. Clark +allowed him to go on circuit in the summer. Lord Coleridge was his +colleague, and Fitzjames enjoyed his society. He afterwards went to +Anaverna, and, though unable to walk far, took much pleasure in long +drives. Meanwhile it began to be noticed that his mind was less powerful +than it had hitherto been. It was an effort to him to collect his +thoughts and conduct a case clearly. A competent observer stated as his +general view that Fitzjames was at intervals no longer what he had +been--a remarkably strong judge--but that he could still discharge his +duties in a way which would have caused no unfavourable comments had he +been new to the work. Remarks, however, began to be made in the press +which may have been more or less exaggerated. I need only say that +Fitzjames himself was quite unconscious of any inability to do his duty, +and for some time heard nothing of any comments. In March 1891 he was on +circuit at Exeter again with Lord Coleridge. It was thought right that +certain public remarks should be brought under his notice. He +immediately took the obviously right course. He consulted Sir Andrew +Clark, who advised resignation. Fitzjames did his last work as judge at +Bristol, March 15 to 23, and finally resigned on April 7, 1891, when he +took leave of his colleagues at an impressive meeting. The +Attorney-General, Sir R. Webster, expressed the feelings of the bar; and +the final 'God bless you all,' with which he took leave of the members +of his old profession, remains in the memory of his hearers. He was +created a baronet in recognition of his services, and received the usual +pension. + +I may here mention that he was elected a corresponding member of the +'Institut de France' in 1888 ('Académie des Sciences morales et +politiques'). The election, I believe, was due to M. de Franqueville, +the distinguished French jurist, with whom he had formed a warm +friendship in later years. He also received the honorary degree of LL.D. +from the University of Edinburgh in 1884, and was an honorary member of +the American Academy of Arts and Sciences. + +After his retirement his health fluctuated. He visited Froude at +Salcombe in June, and was able to enjoy sailing. He afterwards went to +Homburg, and in the autumn was able to walk as well as drive about +Anaverna. He wrote an article or two for the 'Nineteenth Century,' and +he afterwards amused himself by collecting the articles of which I have +already spoken, published in three small volumes (in 1892) as 'Horæ +Sabbaticæ.' On the whole, however, he was gradually declining. The +intellect was becoming eclipsed, and he was less and less able to leave +his chair. Early in 1893 he became finally unable to walk up and down +stairs, and in the summer it was decided not to go to Anaverna. He was +moved to Red House Park, Ipswich, in May, where he remained to the end. +It had the advantage of a pleasant garden, which he could enjoy during +fine weather. During this period he still preserved his love of books, +and was constantly either reading or listening to readers. His friends +felt painfully that he was no longer quite with them in mind. Yet it was +touching to notice how scrupulously he tried, even when the effort had +become painful, to receive visitors with all due courtesy, and still +more to observe how his face lighted up with a tender smile whenever he +received some little attention from those dearest to him. It is needless +to say that of such loving care there was no lack. I shall only mention +one trifling incident, which concerned me personally. I had been to see +him at Ipswich. He was chiefly employed with a book, and though he said +a few words, I felt doubtful whether he fully recognised my presence. I +was just stepping into a carriage on my departure when I became aware +that he was following me to the door leaning upon his wife's arm. Once +more his face was beaming with the old hearty affection, and once more +he grasped my hand with the old characteristic vigour, and begged me to +give his love to my wife. It was our last greeting. + +I can say nothing of the intercourse with those still nearer to him. He +had no serious suffering. He became weaker and died peacefully at +Ipswich, March 11, 1894. He was buried at Kensal Green in the presence +of a few friends, and laid by the side of his father and mother and the +four children who had gone before him. One other grave is close by, the +grave of one not allied to him by blood, but whom he loved with a +brotherly affection that shall never be forgotten by one survivor. + +I have now told my story, and I leave reflections mainly to my readers. +One thing I shall venture to say. In writing these pages I have +occasionally felt regret--regret that so much power should have been +used so lavishly as to disappoint the hopes of a long life, for I always +looked to my brother as to a tower of strength, calculated to outlast +such comparative weaklings as myself; and regret, too, that so much +power was expended upon comparatively ephemeral objects or upon aims +destined to fail of complete fulfilment. Such regrets enable me to +understand why the work which he did in India made so deep an impression +upon his mind. And yet I feel that the regrets are unworthy of him. The +cases are rare indeed where a man's abilities have been directed +precisely into the right channel from early life. Almost all men have to +acknowledge that they have spent a great portion of their energy upon +tasks which have led to nothing, or led only to experience of failure. A +man who has succeeded in giving clear utterance to the thoughts that +were in him need care comparatively little whether they have been +concentrated in some great book or diffused through a number of +miscellaneous articles. Fitzjames's various labours came to a focus in +his labours upon the Criminal Law. During his short stay in India he +succeeded in actually achieving a great work; and I hope that, if his +hopes of achieving similar results in England were disappointed, he will +have successors who will find some help from the foundations which he +laid. But, as he said of his father, the opportunity of directing your +powers vigorously and in a worthy direction is its own reward. If to +have taken advantage of such opportunities be the true test of success, +whatever opinions may be held of you by others, and to whatever account +they may turn your labours, Fitzjames may be called eminently +successful. It often appears to me, indeed, that a man does good less by +his writings or by the mark which he may make upon public affairs than +by simply being himself. The impression made upon his contemporaries by +a man of strong and noble character is something which cannot be +precisely estimated, but which we often feel to be invaluable. The best +justification of biography in general is that it may strengthen and +diffuse that impression. That, at any rate, is the spirit in which I +have written this book. I have sought to show my brother as he was. +Little as he cared for popularity (and, indeed, he often rather rejected +than courted it), I hope that there will not be wanting readers who will +be attracted even by an indifference which is never too common. And +there is one thing which, as I venture to believe, no one can deny, or +deny to be worth considering. Whatever may be thought of Fitzjames's +judgments of men and things, it must be granted that he may be called, +in the emphatical and lofty sense of the word, a true man. In the dark +and bewildering game of life he played his part with unfaltering courage +and magnanimity. He was a man not only in masculine vigour of mind and +body, but in the masculine strength of affection, which was animated and +directed to work by strenuous moral convictions. If I have failed to +show that, I have made a failure indeed; but I hope that I cannot have +altogether failed to produce some likeness of a character so strongly +marked and so well known to me from my earliest infancy. + +FOOTNOTES: + +[Footnote 176: _History of Criminal Law_, i. 418.] + +[Footnote 177: _History of Criminal Law_, i. 265-272.] + +[Footnote 178: Fitzjames had given a slighter account of this curious +subject in the _Contemporary Review_ for February 1871.] + +[Footnote 179: _History of Criminal Law_, ii. 81-3.] + +[Footnote 180: _Ibid._ iii. 84.] + +[Footnote 181: _History of Criminal Law_, ii. 175.] + +[Footnote 182: _History of Criminal Law_, i. 442.] + +[Footnote 183: Fitzjames discussed this question for the last time in +the _Nineteenth Century_ for October 1886. Recent changes had, he says, +made the law hopelessly inconsistent; and he points out certain +difficulties, though generally adhering to the view given above.] + +[Footnote 184: _History of Criminal Law_, iii. 367.] + +[Footnote 185: _Nuncomar and Impey_, i. 1.] + +[Footnote 186: _Nuncomar and Impey_, ii. 114.] + +[Footnote 187: _Ibid._ ii. 247.] + +[Footnote 188: _Nuncomar and Impey_, i. 7.] + +[Footnote 189: _History of Criminal Law_, i. 456.] + +[Footnote 190: Fitzjames kept a journal for a short time at this period, +which gives the facts, also noticed in his letters.] + +[Footnote 191: _Law Reports, 6 Queen's Bench Division_, pp. 244-263.] + +[Footnote 192: _Law Reports, 12 Queen's Bench Division_, pp. 247-256.] + +[Footnote 193: The verses were published in the _St. James's Gazette_ of +Dec. 2, 1881.] + +[Footnote 194: His letters appeared in the _Times_ of March 1 and 2 and +June 9, 1883, and were afterwards collected.] + +[Footnote 195: His letters appeared on January 1, 4, and 21, and on +April 29 and May 1, 1886.] + +[Footnote 196: February 11, 1888; reprinted in the biographical notice +by Sir M. E. Grant Duff, prefixed to the collection of Maine's speeches +and minutes in 1892.] + +[Footnote 197: I have used a notice in the _Cambridge Review_ of +February 11, 1892, and some notes by Mr. Oscar Browning. I have also to +thank several of James's friends for communications; especially Mr. +Cornish, now Vice-Provost of Eton College, Mr. Lowry, now an Eton +master, Mr. Reginald J. Smith, Q.C., and Mr. H. F. Wilson, of Lincoln's +Inn.] + +[Footnote 198: I deeply regret to say that Professor Goodhart died while +these pages were going through the press. The schoolboy affection had +been maintained to the end; and Goodhart was one of James's most +intimate and valued friends.] + +[Footnote 199: Mr. Lowry mentions some other ephemeral writings, the +_Salt Hill Papers_ and the _Sugar Loaf Papers_.] + +[Footnote 200: The last was published at the end of 1884.] + +[Footnote 201: A bibliographical account of the changes in these +editions is given in the fourth.] + +[Footnote 202: A 'Parodist's Apology,' added in the later edition of the +_Lapsus_.] + + + + +BIBLOGRAPHICAL NOTE + +The independent books published by Sir J. F. Stephen were as follows:-- + + 1. _Essays by a Barrister_ (reprinted from the _Saturday Review_). + London, 1862, Smith, Elder & Co. 1 vol. 8vo. (Anonymous.) Pp. 335. + + 2. _Defence of the Rev. Rowland Williams, D.D., in the Arches Court + of Canterbury_, by James Fitzjames Stephen, M.A., of the Inner + Temple, barrister-at-law, recorder of Newark-on-Trent. London, + 1862, Smith, Elder & Co. 1 vol. 8vo. Pp. xlviii. 335. + + 3. _A General View of the Criminal Law of England_, by James + Fitzjames Stephen, M.A., of the Inner Temple, barrister-at-law, + recorder of Newark-on-Trent. London and Cambridge, 1863, Macmillan + & Co. 1 vol. 8vo. Pp. xii. 499. + + 4. _Liberty, Equality, Fraternity_, by James Fitzjames Stephen, + Q.C. London, 1873, Smith, Elder & Co. Pp. vi. 350. Second edition + of the same (with new preface and additional notes), 1874. Pp. + xlix. 370. + + 5. _A Digest of the Law of Evidence_, by James Fitzjames Stephen, + Q.C. London, 1874, Macmillan & Co. Pp. xlii. 198. Reprinted with + slight alterations, September 1876, December 1876; with many + alterations, 1877. Second edition, 1881. Third, 1887. Fourth, 1893. + + 6. _A Digest of the Criminal Law_ (_Crimes and Punishments_), by + Sir James Fitzjames Stephen, K.C.S.I., Q.C. London, 1877, Macmillan + & Co. Pp. lxxxii. 412. Second edition, 1879. Third, 1883. Fourth, + 1887. Fifth, 1894. + + 7. _A Digest of the Law of Criminal Procedure in Indictable + Offences_, by Sir James Fitzjames Stephen, K.C.S.I., D.C.L., a + judge of the High Court of Justice, Queen's Bench Division, and + Herbert Stephen, Esq., LL.M., of the Inner Temple, + barrister-at-law. London, Macmillan &Co. 1883. Pp. xvi. 230. + + 8. _A History of the Criminal Law of England_, by Sir James + Fitzjames Stephen, K.C.S.I., D.C.L., a judge of the High Court of + Justice, Queen's Bench Division. London, 1883, Macmillan & Co. 3 + vols. 8vo. Pp. xviii. 576; 497; 592. + + 9. _The Story of Nuncomar and the Impeachment of Sir Elijah Impey_, + by Sir James Fitzjames Stephen, K.C.S.I., one of the judges of the + High Court of Justice, Queen's Bench Division. London, 1885, + Macmillan & Co. 2 vols. 8vo. Pp. 267, 336. + + 10. _A General View of the Criminal Law of England_, by Sir James + Fitzjames Stephen, K.C.S.I., D.C.L., Honorary Fellow of Trinity + College, Cambridge, a corresponding member of the French Institute, + a judge of the Supreme Court, Queen's Bench Division. (Second + edition.) London, 1890, Macmillan & Co. Pp. xii. 398. + + 11. _Horæ Sabbaticæ, Reprint of Articles contributed to the + Saturday Review_, by Sir James Fitzjames Stephen, Bart., K.C.S.I. + London, 1892, Macmillan & Co. First, second and third series. Pp. + 347, 417, 376. + +The following is a list of the chief contributions to quarterly and +monthly periodicals. + + +_Cambridge Essays_ + +1. Oct. 1855. Relation of Novels to Life. + +2. July 1857. Characteristics of English Criminal Law. + + +_National Review_ + +1. April 1856. Cambridge Reform. + +2. Nov. 1864. The Public Schools Commission. + + +_Edinburgh Review_ + +1. July 1856. Cavallier. + +2. July 1857. Novelists. + +3. Jan. 1858. Tom Brown's Schooldays. + +4. April 1858. Buckle's 'Civilisation.' + +5. Oct. 1858. Guy Livingstone. + +6. April 1859. Hodson. + +7. Oct. 1861. Jurisprudence. + + +_Cornhill Magazine_ + +1. Sept. 1860. Luxury. + +2. Dec. 1860. Criminal Law and the Detection of Crime. + +3. April 1861. The Morality of Advocacy. + +4. May 1861. Dignity. + +5. June and July 1861. The Study of History. + +6. Aug. 1861. The Dissolution of the Union. + +7. Sept. 1861. Keeping up Appearances. + +8. Nov. 1861. National Character. + +9. Dec. 1861. Competitive Examinations. + +10. Jan. 1862. Liberalism. + +11. Feb. 1862. Commissions of Lunacy. + +12. March 1862. Gentlemen. + +13. May 1862. Superstition. + +14. June 1862. Courts Martial. + +15. July 1862. Journalism. + +16. Sept. 1862. The State Trials. + +17. Nov. 1862. Circumstantial Evidence. + +18. Jan. 1863. Society. + +19. Feb. 1863. The Punishment of Convicts. + +20. April 1863. Oaths. + +21. June 1863. Spiritualism. + +22. July 1863. Commonplaces on England. + +23. July 1863. Professional Etiquette. + +24. Sept. 1863. Anti-respectability. + +25. Oct. 1863. A Letter to a Saturday Reviewer. + +26. Dec. 1863. Marriage Settlements. + +27. Jan. 1864. Money and Money's Worth. + +28. June 1864. The Church as a Profession. + +29. July 1864. Sentimentalism. + +30. Dec. 1864. The Bars of France and England. + +31. Jan. 1867. The Law of Libel. + + +_Fraser's Magazine_ + +(A few earlier articles had appeared in this magazine.) + +1. Dec. 1863. Women and Scepticism. + +2. Jan. 1864. Japan. + +3. Feb. 1864. Theodore Parker. + +4. April 1864. Mr. Thackeray. + +5. May 1864. The Privy Council. + +6. June 1864. Capital Punishment. + +7. Sept. 1864. Newman's 'Apologia.' + +8. Nov. 1864. Dr. Pusey and the Court of Appeal. + +9. Dec. 1864. Kaye's 'Indian Mutiny.' + +10. Feb. 1865. Law of the Church of England. + +11. March 1965. Merivale's 'Conversion of the Roman Empire.' + +12. June and July 1865. English Ultramontanism. + +13. Nov. 1865. Mr. Lecky's 'Rationalism.' + +14. Feb. 1866. Capital Punishment. + +15. June and July 1866. 'Ecce Homo.' + +16. Nov. 1866. Voltaire. + +17. Nov. 1869. Religious Controversy. + +18. Jan. 1872. Certitude in Religious Assent. + +19. July 1873. Froissart's 'Chronicles.' + + +_Fortnightly Review_ + +1. Dec. 1872. Codification in India and England. + +2. March 1877. A Penal Code. + +3. March 1884. Blasphemy and Seditious Libel. + + +_Contemporary Review_ + +1. Dec. 1873 and March 1874. Parliamentary Government. + +2. March 1874. Cæsarism and Ultramontanism. + +3. May 1874. Cæsarism and Ultramontanism: a Rejoinder. + +4. Dec. 1874. Necessary Truth. + +5. Feb. 1875. The Law of England as to the Expression of Religious +Opinion. + + +_Nineteenth Century_ + +1. April 1877. Mr. Gladstone and Sir G. C. Lewis on Authority. + +2. May 1877. Morality and Religious Belief. + +3. Sept. 1877. Improvement of the Law by Private Enterprise. + +4. Dec. 1877. Suggestions as to the Reform of the Criminal Law. + +5. Jan. 1880. The Criminal Code (1879). + +6. Jan. 1881. The High Court of Justice. + +7. April 1882. A Sketch of the Criminal Law. + +8. Oct. 1883. India; the Foundations of Government. + +9. June 1884. The Unknowable and the Unknown. + +10. May 1885. Variations in the Punishment of Crime. + +11. Oct. 1886. Prisoners as Witnesses. + +12. Dec. 1886. The Suppression of Boycotting. + +13. Oct. 1887. Mr. Mivart's 'Modern Catholicism.' + +14. Jan. 1888. A Rejoinder to Mr. Mivart. + +15. April and May 1888. Max Müller's 'Science of Thought.' + +16. June 1891. The Opium Resolution. + +17. July 1891. Gambling and the Law. + + + + +INDEX + + + Aberdare, Lord, 340 + + Aberdeen in 1775-77, 11 + + Achill, Sir J. F. Stephen at, 409 + + Adams, Professor, 93 + + Adams, Mr. Henry, 24_n_ + + Addison, Joseph, 430 + + Afghanistan, Lord Lytton's policy in, and the subjugation of its + tribes,391-401 + + Agency Committee, organised by George Stephen, 28 + + Albert, Prince Consort, 95 + + Allen, William, 309 + + America, the Civil War in, 319 + + American Academy of Arts and Sciences, Sir J. F. Stephen an honorary + member of, 478 + + Anaverna House, 386, 406-409, 477-479 + + Annet, Peter, last Deist imprisoned for blasphemous libel, 8 + + 'Anti-Slavery Reporter,' the, 47 + + 'Apostles,' the, at Cambridge, 100-106, 300, 472 + + Aquinas, Thomas, 60, 364 + + Argyll, Duke of, 354 + + Arnold, Matthew, 165 + + Arnold, Rev. Dr., 76, 221 + + Ashton, John, Jacobite conspirator, 34 + + Ashton, Miss. _See_ Venn, Rev. Richard + + Ashwell, R. _v._, 443 + + Athenæum Club, the, 302 + + Auerbach's 'Auf der Höhe,' 298 + + Austen, Jane, 103 + + Austerlitz, 60 + + Austin, Charles, 123 + + Austin, John, as a writer compared with Sir J. Stephen, 54; + John and Mrs. Austin's associations with Sir J. Stephen, 60, 76; + influence of Austin's works on Sir J. F. Stephen, 116, 204-206, + 220, 317, 396, 413; + death, 172 + + Austin, Miss Lucy. _See_ Gordon, Lady Duff + + + Bacon murder trial, 146-148, 173 + + Bain, Professor, 339 + + Balmat, Auguste, 143 + + Balston, Mr., 80, 81, 86 + + Balzac, Honoré, 156 + + Barkley, Mr. D. G., 256 + + Barry, Mr. Justice, 380 + + Bate, Parson. _See_ Dudley, Sir Henry Bate + + Bathurst, Earl, and Sir J. Stephen, 32 + + Batten, Rev. Ellis, Master at Harrow, his wife (Miss Caroline Venn) + and daughter, 36_n._, 39, 129 + + Baxter and his writings, Sir J. Stephen on, 56, 57, 116 + + Beaconsfield, Lord, 344, 349, 352 + + Beattie, Dr., 11 + + Beaumont, W. J., 85 + + Bellingham, Henry, murderer of Mr. Perceval, 20 + + Bentham, Jeremy, Sir J. F. Stephen + and his writings, 71, 101, 116, 123-125, 159, 189, 204, 206-208, 210, + 211, 308, 309, 311, 312, 317, 321, 322, 325, 333, 413, 423, 424, + 464; + his efforts on behalf of codification, 246, 247 + + Bethell Sir Richard. _See_ Westbury, Lord + + Blackburn, Lord, 353, 380 + + Blackstone, Mr. Justice, 26, 412, 418 + + Blakesley, Canon, 100 + + Blomfield, Bishop, 37 + + Blücher, Field-Marshal, 21 + + Board of Trade, Sir J. Stephen's connection with the, 42, 49 + + Bolingbroke, James Kenneth Stephen's essay on, 472 + + Bonney, Professor, 4_n_ + + Bowen, Lord Justice, 150, 232, 413 + + Brahmos sect (India), 260-266 + + Bramwell, Lord, 140, 353 + + Brand, Lieut., his share in the execution of Gordon, 229 + + Bright, John, 107, 160, 224, 304, 394 + + Brontë, Charlotte, 103 + + Brougham, Lord, 19, 20, 22, 24_n_ + + Brown, Mary. _See_ Stephen, Mr. James + + Browning, Mr. Oscar, 469, 472, 476 + + Browning, Robert, 5, 476 + + Browning, Mr. William, 469 + + Bryce, Mr. James, 32_n_ + + Buckle, T. H., 312, 320 + + Buller, Mr. Charles, 46, 100 + + Bunyan, John, 69 + + Burke, Edmund, 433, 434 + + Butler, Bishop, Sir James Stephen and his 'Analogy,' 18; + Sir J. F. Stephen and Butler's works, 161, 196, 423 + + Butler, Mr. Montague, 99_n_ + + Buxton, Mr. Charles, his connection with the Jamaica Committee, + 228_n_ + + Buxtn, Sir Thomas Fowell, his efforts to suppress the slave trade, 28 + + Byron, Lord, 103, 400 + + + Cairns, Lord, 380 + + Calcutta, work and life at, 241, 244, 304 + + Calder, Mrs., daughter of Mr. James Stephen, 2 + + Calverley, C. S., 476 + + 'Cambridge Essays,' 149, 155, 203, 206, 484 + + 'Cambridge Review,' the, 469_n_ + + Cambridge University, John Venn at, 35; + connection of Sir J. Stephen with, 56; + Sir J. F Stephen at, 93-106; + the 'Apostles,' 100; + J. K. Stephen at, 472-3, 476-7 + + Cameron, C. H., his share in codifying Indian Penal Laws, 247 + + Campbell's Poems, 40, 68 + + Campbell, Mr. J. Dykes, 33_n_ + + Campbell, Lord, Chief Justice, 140, 441, 442 + + Campbell, Sir George, 269 + + Canning, Lord, 399 + + Capital punishment, 426, 445 + + Carlyle, Jane Welsh, 201 + + Carlyle, Thomas, 50, 53, 54; + his political and philosophic writings, 77, 104, 159, 180, 182, + 225, 230, 315, 453, 458; + friendship with Sir J. F. Stephen, 201-203, 238, 245, 302, 305, + 309, 360, 385, 419 + + Caroline, Queen, 27 + + Cashmire Gate, the, 398 + + Castlereagh, Lord, 22 + + Cavagnari, Major, 397, 399 + + Cavaignac and the French revolution of 1848, 108 + + Cavallier, 162, 163 + + Cayley, Professor, 93 + + Cervantes, 464 + + Chamberlain, Mr. Joseph, 231, 232 + + Charlemagne, 319 + + Charles II., criminal law in his day 241 + + Charlotte, Princess, 21 + + Chenery, Thomas, Editor of the 'Times,' 85 + + Chillingworth, William, 186 + + Chitty, Mr. Justice, 85 + + 'Christian Observer,' 127-130, 149 + + Christie, W. D., 100_n_ + + Church Missionary Society, 33, 35 + + 'Clapham Sect,' the, 24_n_, 32-35, 55-57, 83, 84, 127 + + Clark, Sir Andrew, 435, 436, 477, 478 + + Clarke, Mrs. _See_ Stephen, Mr. James + + Cleasby, Baron, 402, 403 + + Clifford, Professor W. K., 361 + + Clifton _v._ Ridsdale, 384 + + Club 'The,' 385 + + Cobden, Richard, 107, 160 + + Cockburn, Sir Alexander, Lord Chief Justice, his charge regarding the + alleged murder of Gordon, 229; + and the Homicide Bill, 353; + on the Criminal Code Bill, 381 + + Cockerell, Mr., 246_n_, 254 + + Codification, in India, 233, 249, 303, 392, 393, 418; + in England, 302, 305, 340, 341, 347, 351-358, 379-381, 388, 389, + 392, 393 + + Colenso, Bishop, 219 + + Coleridge, Mr. Arthur, 77, 78, 80, 85, 139-141 + + Coleridge, Herbert, 82, 85 + + Coleridge, Lord, Chief Justice, 165, 303, 305, 306, 340, 341, 343, + 351, 352, 377, 389, 477, 478 + + Coleridge, Samuel Taylor, 58, 84, 105, 168, 221, 368 + + Colonial Department and Office, 32, 42-45 + + Colquhoun's 'Wilberforce' cited, 24_n_ + + Comte, Auguste, 375 + + Congreve, Mr., 161 + + 'Contemporary Review,' the, 350_n_, 365, 422_n_, 485 + + Contracts, Sir J. F. Stephen and the law of, 276-278, 355, 376 + + Conybeare and Philips, their work on Geology, cited, 4_n_ + + Cook, John Douglas, 148, 149, 150, 153 + + Copyright Commission, the, 402 + + 'Cornhill Magazine,' the, 139_n_, 175, 177, 178, 182-184, 208_n_, + 212, 214, 223, 484, 485 + + Cornish, Mr., Vice-Provost of Eton, 469_n_, 471 + + Cosmopolitan Club, the, 385, 386 + + Courts-Martial, Sir J. F. Stephen on, 208 + + Cowie, Mr., Advocate-General, 261 + + Cowper, the poet, 34, 40 + + Cremation, 450 + + Criminal Law, 149; + 'General View' of, 203-212, 412, 413, 463, 483, 484; + 'Digest' of, 375-377, 412, 463, 483; + the Criminal Code, 380, 381, 402, 418; + 'History' of, 410-428, 463, 483; + Court of Criminal Appeal, 463 + + Croker, John Wilson, 21 + + Cumming, Dr., and the 'Saturday Review,' 154 + + Cunningham, Sir Henry Stewart, 130, 234, 235, 237, 245, 246_n_, 249, + 275_n_, 295, 298, 304, 305 + + Cunningham, Rev. J. W., 128-130 + + Curzon, Hon. George, 470 + + Cust, Mr. Robert, 257 + + + Dalgairns, Father, 361 + + Dalhousie, Lord, 399 + + Dante, 464, 465 + + Darwinism, 374, 375, 456 + + Davies, Rev. J. Llewelyn, 99, 106, 125, 126, 132 + + Delhi, 237, 245; the great Durbar at (1877), 398 + + De Maistre, 226, 330 + + Denison, Archdeacon, 351 + + Derby, Earl of (Edward Geoffrey), 47, 48, 53 + + Derby, Earl of (Edward Henry), 102 + + Descartes, 363 + + De Vere, Aubrey, 59 + + Dicey, Professor Albert Venn, Mr. Edward, Mr. Frank, and Mr. Henry, + 31 + + Dicey, Mr. Thomas Edward, 29-31, 76, 85, 120 + + Dickens, Charles, 155, 156, 158, 160, 180, 345 + + Dickens, Mr., Q.C., 439 + + Dove, trial of, 146 + + Dowden, Professor, 55_n_ + + Dromquina, Ireland, 235, 236, 405, 406 + + Dudley, Sir Henry Bate ('Parson' Bate), 14 + + Duff, James Grant, 171 + + Duff, Sir Mountstuart Elphinstone Grant, and Lady, 119, 120, 139, + 140, 171, 190, 235, 303, 451, 466_n_ + + Dundee, candidature for, 343-348, 352 + + + 'Ecce Homo,' review of, 200, 221 + + Ecclesiastical cases, 381-386 + + Edinburgh, Duke of (Prince Alfred), 245 + + 'Edinburgh Review,' the, 55, 150, 153, 160, 162, 163, 172_n_, 175, + 204, 205, 484 + + Education Commission (1859), 165-167, 172, 203 + + Egerton, Lady, 130, 234, 245, 403, 404, 435 + + Egerton, Sir Robert, 400 + + Eldon, Earl of, 247 + + Elliot, Gilbert (Earl Minto), 433 + + Elliott, Miss Charlotte, 72, 73 + + Elliott, E. B., 154 + + Elliott, Rev. Henry Venn, 72, 73 + + Ellis, Mr. Leslie, 93, 97 + + Erie, Lord Chief Justice, 442 + + 'Essays and Reviews,' 184, 219, 369 + + 'Essays by a Barrister,' 170_n_, 172_n_, 177; + character of its contents, 178-182, 412 + + Estlin, John Prior, 31 + + Eton, 76-86, 469-472 + + 'Etonian,' the, 470 + + Evidence, Digest of the Law of, 483 + + Evidence Act (India) and Bill (England), 277, 278, 291, 305, 306, 341 + + Extradition Commission, the, 402 + + Eyre, Governor, 227-230, 296 + + + Fane, Julian, 102, 104 + + Farish, Professor William, 8_n_, 31, 36 + + Fawcett, Professor Henry, 222 + + Field, Lord, 118, 120, 212, 357 + + Fielding, Sir John, 7 + + Flowers, Mr. F., 138 + + Forbes, Miss Mary. _See_ Stephen, Mr. William + + Forster, the Rt. Hon. W. E., 167 + + 'Fortnightly Review,' the, 246_n_, 340, 485 + + Francis, Sir Philip, 433 + + Francis, Miss Elizabeth, 40 + + Franqueville, M. de, 478 + + 'Fraser's Magazine,' 163, 184, 188, 190, 194, 200, 202, 225, 226, + 365, 485 + + Freeman, Professor E. A., 150, 351 + + Freshfield, Messrs., 27 + + Froude, James Anthony, 151_n_, 200, 201, 236, 238, 300, 302, 304, + 385, 405, 446, 478 + + Fuller, Mr., 435 + + + Galway, Ireland, 409 + + Garratt, Rev. Samuel, 30_n_ + + Garratt, Mr. W. A., 29, 30, 180 + + George III., criminal law in his day, 421 + + Gibbet Law of Halifax, 420 + + Gibbon, Edward, 226, 358, 359, 416 + + Gibbs, Mr. Frederick Waymouth, 42, 72, 82, 101, 346, 407 + + Giffard, Mr. Hardinge (afterwards Lord Halsbury), 229 + + Gisborne, Thomas, 18, 55 + + Gladstone, Mr., his work on Church and State, 219; + Irish Church Act and Irish University Bill, 225, 341; + connection with the Metaphysical Society, 361, 365, 366; + recent Irish and Indian policies, 460, 461 + + Glenelg, Lord, 44 + + Goodhart, Professor, 470 + + Gordon, Adam Lindsay, 459 + + Gordon, Lady Duff (née Austin), 60 + + Gordon, Lord George, 14 + + Gordon, hanged for his share in the Jamaica insurrection, 227-230 + + Gorham case, the, 109 + + Gower, Lord F. L., 68 + + Grace, Miss. _See_ Stephen, Rev. William + + Graham, Sir James, and the slave trade, 48_n_ + + Gray, the poet, 39; + his 'Elegy,' 170 + + Great Grimsby Riots, 173 + + Green, T. H., 362 + + Greenwood, Mr. Frederick, editor of + the 'Pall Mall Gazette 'and the 'St. James's Gazette,' 214-217, 300, + 307, 460, 474 + + Greg, William Rathbone, 124, 212, 213 + + Greville, Charles, the diarist, 60 + + Grey, Earl. _See_ Howick, Lord + + Guest, Rev. B., 73-76 + + Gurney, Mr. Russell, recorder of London, 39, 73, 129, 228, 300, 304, + 305, 341, 353, 389, 402 + + + Haileybury, Sir J. Stephen at, 91 + + Hallam, the historian, 182, 414 + + Hallam, Henry Fitzmaurice, 100, 102 + + Hamilton, the logician, anecdote concerning, 103 + + Hamilton, Sir William, introduces German philosophy into England, + 105; + Mill's examination of his philosophy, 182, 183 + + Hampden, Bishop, 186 + + Hannen, Mr. (afterwards Lord), counsel for General Nelson and Lieut. + Brand, 229 + + Harcourt, Sir William (4 Historicus'), contemporary of Sir J. F. + Stephen at Cambridge, 99,102, 106; + connection with the 'Saturday Review,' 150, 213, 302, 395, 445 + + Harrison, Mr. Frederic, his controversies with Sir J. F. Stephen and + connection with the Metaphysical Society, 213, 339, 340, 361, + 371, 454 + + Harwich, candidature for, 222, 344 + + Hastings, Warren, Sir J. F. Stephen's interest in the study of his + works and impeachment, 233, 395, 398, 399, 429; + character of Lord Macaulay's article on, 430-434 + + Hazlitt, as an essayist, 178 + + Helps, Sir Arthur, an 'Apostle' at Cambridge, 100; + as an essayist, 178 + + Henry, Sir Thomas, 229 + + Hey, Rev. John, 35 + + Hick, Mr., M.P., 232 + + Higgins, Matthew James ('Jacob Omnium'), his connection with the + 'Pall Mall Gazette,' 212 + + Hildebrand, Sir J. Stephen on, 56 + + Hill, Rowland, and the Post Office, 159 + + Himalayas, the, Sir J. F. Stephen's description of, 245 + + Hindoo laws, remarriage of widows legalised, 260; + alterations in the oaths and wills enactments, 277. _See also_ + India + + 'Historicus.' _See_ Harcourt, Sir William + + 'History 'of the criminal law. _See_ Criminal law + + Hobbes, Thomas, the study of his philosophy by Sir J. F. Stephen and + its influence on his character, 116, 141, 220, 308, 317, 320, + 330, 442, 455 + + Hobhouse, Lord, 304, 392 + + Hodson, Archdeacon, 24; + Indian reminiscences of Hodson of Hodson's Horse, 245 + + Holker, Sir John, 380 + + Holland, Canon, 102 + + Holland House, society gatherings at, 60 + + Home Rule, Sir J. F. Stephen's objections to, 460-462 + + Homer, study of, 358 + + Homicide Bill, 304, 340, 353, 379 + + Hooghly, its aspect during State ceremonial after Lord Mayo's murder, + 293, 294 + + Hooker, 186, 226 + + 'Horæ Sabbaticæ,' 225, 226, 479, 484 + + Hort, Professor, 102, 149 + + Howick, Lord (afterwards Earl Grey), and the slave trade, 47 + + Hughes, Tom (Judge), his 'Tom Brown's School Days,' 95; + mission work in the East End, 126 + + Hughes _v._ Edwards, 384 + + Hume, David, 58 + + Hunter, Sir W. W., his 'Life of the Earl of Mayo,' 246_n_, 48, + 282-290, 342 + + Hutton, Mr. R. H., 360, 361 + + Huxley, Professor, 361, 371 + + Hyde Park Riots, the, 224 + + + Ilbert, Sir C. P., on Sir J. F. Stephen's legislative work in India, + 246_n_, 279, 280, 378; + advocates the collection of antiquarian laws, 379; + his 'Indian' Bill proposals criticised by Sir J. F. Stephen, 461 + + Impey, Sir Elijah, Sir J. F. Stephen's work on his 'Trial of + Nuncomar,' 353, 429, 484; + injustice of Lord Macaulay's treatment of Impey, 432 + + India, Sir J. F. Stephen on James Grant Duff's administration of, 171; + on British rule in, 223, 459; + legal codes in, 225; + Sir J. F. Stephen's interest in, 233; + his appointment as Member of Council, 235; + account of his duties and of the Indian Civil Servants, 242, 243; + personal experiences there, 244-246; + the India Company and the passage of the Penal Code, 247-249; + constitution of the Legislative Council, 249; + the executive, 249; + the legislative department and its functions, 249; + the committee, 250, 269, 270; + process of preparing legislative measures, 250, 251; + the Indian and English systems compared, 251, 252; + varied character of its regulations, laws, and executive orders, + and consequent irregularities, 252-254; + British administration of the Punjab and the introduction of Codes, + 255-259; + the difficulties of our position in India, 259; + enumeration of legislative reforms in India, 259-278; + criticisms and appreciations of Sir J. F. Stephen's work in India, + 278-282; + summary of Sir J. F. Stephen's views on the principles of Indian + legislation, 282-289; + his Minute on the administration of justice in India, 289-291; + the murder of Lord Mayo in, 291-296; + riot and excesses of Kookas sect, 296, 297; + Roman analogy of British rule, 297; + Sir J. F. Stephen's last days in, 297; + educational value of India to him, 299; + his codification of the law in, 303; + Evidence Act, 305; + legislation in, compared with England, 304; + contemplated work on, 353; + his Acts relating to consolidation, 354, 355, 376, 377; + correspondence with Lord Lytton concerning Indian affairs, 389-393, + 398; + controversy with John Bright, Lord Lawrence, and other statesmen on + Indian policy, 394-397; + proclamation of Queen Victoria as Empress of, 398; + proposed moral text-book for India, 399; + Sir J. F. Stephen's study of Parliamentary Papers concerning, 429; + his views on the 'Ilbert Bill,' 460, 461; + work in, 480. _See also_ Punjab + + Indian Law Commission, its share in Indian law reform, 248, 249, 260, + 266, 268, 271, 276 + + Indian Mutiny, the, Sir J. F. Stephen's article on, 161; + and legislation in India, 248 + + Inns of Court, Sir J. F. Stephen Professor of Common Law at, 377 + + Insanity and crime, 425, 426 + + Institut de France, Sir J. F. Stephen elected a corresponding member + of, 478 + + International law, Austinian theory regarding, 396 + + Ipswich, Sir J. F. Stephen's residence and death at, 479 + + Ireland, Sir J. F. Stephen in, 235, 236, 405-409, 412, 477-479. _See + also_ Home Rule + + Irish Church, the, 224, 225 + + Irish University Bill, the, defeat of, 341 + + Italian, study of, 298, 299, 435, 464 + + + Jackson, Rev. William, 5; + letter on James Stephen, 7 + + Jacob, General, his 'Progress of Being,' Sir J. F. Stephen's review + of, 375 + + Jacob Omnium. _See_ Higgins, Matthew James + + Jamaica, slave insurrection in (1831), 47; + revolt in (1865), and its suppression, 227-231 + + James, Mr. Edward, Q.C., 228 + + James, Sir Henry, appointed Solicitor-General, 351 + + Jeffrey, Lord, his conduct of the 'Edinburgh Review,' 162 + + Jeffreys, Judge, 419, 420 + + Jelf, Dr., the theologian, 88 + + Jenkins, Mr. Edward, author of 'Ginx's Baby,' and the Dundee + election, 345-349, 352 + + Jenkins _v._ Cook, 383 + + Jerrold, Douglas, 155 + + Jessel, Sir George, Solicitor-General, 343 + + Jeune, Sir Francis, 382, 384 + + Johnson, Dr., and Sir J. F. Stephen: a comparison, 131, 133; + character of his essays, 178 + + Jowett, Rev. H., tutor of Sir J. Stephen, 31; + and of the Rev. J. W. Cunningham, 129 + + Jowett, Professor Joseph, an Evangelical, 31 + + Jowett, Professor William, his writings on theology, 184, 185 + + Judicature Act (1873), the, 343 + + Jungfrau, ascent of the, 96 + + Junius' letters, 5, 6 + + Jurisprudence, Sir J. F. Stephen on, 204, 206 + + Jury, the history of trial by, 419 + + Justinian's 'Institutes,' 152 + + + Kane, E. K., 167 + + Kant, 311, 333 + + Kelly, Chief Baron, 342, 351 + + Kelvin, Lord, 93 + + Kenilworth Castle, 303 + + Kenmare river, the, Ireland, 236, 405 + + Kensington, the Stephens at, 22, 66, 235 + + Kent, Chancellor, on Serjeant Stephen's first book, 26 + + Killmakalogue Harbour, 405 + + King, Miss Catherine. _See_ Venn, Rev. John + + King's College, London, 86, 87 + + Kingsley, Charles, 180 + + Kitchin, Dean, 87, 109 + + Knight, Rev. William, his work on the Rev. Henry Venn, D.D., 37 + + Knowles, Mr. James, 360, 365 + + Kooka sect, their religious fanaticisms and barbarities, 296 + + + Lahore, 237 + + Lake, Dean, Education Commissioner (1858), 165 + + Lamb, Charles, as an essayist, 178 + + Lansdowne, Lord, his house in Ireland, 405 + + 'Lapsus Calami,' James Kenneth Stephen's, 476 + + Lardner, his work on 'Gospel History' 124 + + Las Casas, and his account of Napoleon at St. Helena, 359, 360 + + Law, William, effect of his 'Serious Call' on Rev. Richard Venn, 34 + + Law, definition of, 317, 320; + considered in relation to Mill's theory, 322-324; + its connection with morality, 423-428 + + 'Law Magazine,' the, 149 + + 'Law Quarterly Review,' Sir C. P. Ilbert's article in, on Sir J. F. + Stephen, 246_n_ + + Lawrence, Henry, assists in the administration of the Punjab, 255 + + Lawrence, John (Lord), his legislative reforms in India and + administration of the Punjab, 253, 255, 285; + journalistic encounters and friendship with Sir J. F. Stephen, 395, + 396; + text of Dean Stanley's sermon on, 468 + + Lecky, W. E. H., his 'Rationalism,' 200 + + Lewis, Sir George Cornewall, 244; + his 'Authority 'discussed, 366 + + 'Liberty, Equality, Fraternity,' 170, 483; + account of its inception, character of the work, 306-340, 428, 459; + effect on the Dundee election, 345 + + 'Liberty of the Savoy,' 420 + + Lightfoot, Dr., 97, 98 + + Lilburne, John, 420 + + Lincoln, General, 319 + + Lipski, the murderer, 446, 447 + + Literary Society, the, 385 + + Liveing, Dr. Robert, 23 + + Liverpool, invitation to contest, 340 + + Locke, 104, 105, 363 + + 'London Review,' the, 177 + + Louis Philippe, 108 + + Lowe, Mr. Robert (Lord Sherbrooke), on public-school life at + Winchester, 80; + and the Revised Educational Code, 167; + and the Evidence Bill, 306 + + Lowry, Mr., of Eton, 469_n_, 470_n_ + + Loyola, Ignatius, Sir J. Stephen on, 56, 57 + + Lush, Mr. Justice, his trial of the Tichborne case, 342; + Criminal Law Commissioner, 378 + + Lushington, Mr. Franklin, 137-139, 143, 144, 229 + + Luther, Sir J. Stephen on, 56 + + Luttrell, 471 + + Lyall, Sir Alfred, his works and character, 353, 400, 458 + + Lyndhurst, Lord, and Serjeant Stephen, 27 + + Lytton, Earl of, Governor-General of India, his correspondence and + friendship with Sir J. F. Stephen, 333, 349, 384, 386, 390, 391, + 404, 411, 451, 456; + characteristics of, 387-390; + confidential nature of their correspondence, 391; + Sir J. F. Stephen on Lord Lytton's Indian policy, 391-401, 403; + Ambassador at Paris, 451; + his death, 477 + + + Macaulay, Kenneth, leader of the Midland Circuit, 136, 140, 173, 176; + godfather of James Kenneth Stephen, 469 + + Macaulay, Thomas Babington (Lord), as a writer compared with Sir J. + Stephen, 54, 55; + on the meetings at Holland House, 60; + his patriotism, 161; + his literary style, 162, 163, 417; + Sir J. F. Stephen's obituary notice of, 182; + on Church and State, 219; + impression of his Indian essays on Sir J. F. Stephen, 233; + advised Sir J. Stephen to accept Indian appointment, 235; + his share in preparing the Indian Code, 247, 248; + personal claims of Impey on Macaulay, 429; + character of his essay on Hastings, 430; + Macaulay's imaginative process contrasted with Sir J. F. Stephen's + judicial method, 430-432; + examples of the former's audacious rhetoric, 432, 433; + effect of Sir J. F. Stephen's regard for Macaulay on his + criticisms, 433, 434 + + Macaulay, Zachary, his share in the suppression of slavery, 17, 28, + 47; + as a philanthropist, 309 + + Mackintosh, 60 + + 'Macmillan's Magazine,' 177 + + Madras, its administrative regulations anterior to 1834, 252; + the famine in, 392 + + Maine, Sir Henry Sumner, his career at Cambridge and his friendship + with Sir J. F. Stephen, 93, 101, 102, 104, 110, 111, 153, 300, + 385; + his journalistic work on the 'Morning Chronicle,' 'Cambridge + Essays,' 'Saturday Review,' and 'St. James's Gazette,' 148-150, + 460; + Stephen's review and criticisms of his 'Ancient Law,' 205, 413, 417; + his work as legal member of the Council of India, 233, 234, 249, + 250, 253, 261-263, 267; + revises Stephen's draft scheme for consolidating the Acts relating + to India, 355; + Stephen's and Maine's interest in Indian matters, 376, 392, 400; + his death, and biographical notice by Stephen, 466, 467; + the latter appoints Maine's son clerk of assize, 467, 475 + + Maitland, Professor, on Sir J. F. Stephen's writings, 415, 416, 431 + + Manchester School, the, 225, 310, 394 + + Manning, Cardinal, 200, 365, 366, 369, 371, 373 + + Mansel, Dean, introduces German philosophy into England, 105; + Sir J. F. Stephen on his 'Metaphysics,' 182 + + Mansel, Mr., assists Lord Lawrence in the administration of the + Punjab, 255 + + Mansfield, Lord, his relations with James Stephen, 5-7 + + 'Maria,' 12, 13, 15 + + Marriage, Mill's theories concerning, 329, 330 + + Martial Law, Sir J. F. Stephen on, 229 + + Martineau, Dr., his connection with the Metaphysical Society, 361 + + Martyn, Henry, 57 + + Matthews, Mr. Henry, Home Secretary, and the Lipski trial, 446, 447 + + Maule, Mr., member of the Jamaica Commission, 228 + + Maurice, Professor F. D., of King's College, London, his influence on + Sir J. F. Stephen, 88, 116, 124, 127; + formerly an 'Apostle' at Cambridge, 100; + his influence at Cambridge, 105; + his style of preaching, 124, 125 + + Mauritius, the, Sir George Stephen and the slave trade in, 28 + + Max Müller, Professor, his 'Science of Thought' reviewed by Sir J. F. + Stephen, 455 + + Maxwell, Clerk, an 'Apostle' at Cambridge, 102; + anecdote concerning, 103 + + Maybrick, Mrs., her trial, 447 + + Mayo, Earl of, Sir J. F. Stephen's contribution to his life, 246_n_, + 248, 282-290, 342; + his hunting parties in India, 245; + Sir J. F. Stephen on his character and work in India 291; + account of his murder, 291; + and the State ceremonial in Calcutta, 291-295; + incident connected with the trial of his murderer, 292, 293; + legislative work in India, 305 + + Melbourne, Lord, on Sir J. Stephen at the Colonial Office, 49 + + Merivale, Charles, an 'Apostle' at Cambridge, 100 + + Merivale, Mr. Herman, and the consolidation of Acts relating to + India, 354 + + Metaphysical Society, the, its inception, 360; + its first members, 361; + Sir J. F. Stephen's connection with and contributions to, 361-375 + + Metaphysics, Sir J. F. Stephen and, 104, 114 + + Miall, Edward, Education Commissioner (1858), 165 + + Middleton, Conyers, his quarrel with the Rev. Richard Venn, 33, 34 + + Mill, James, his influence at Cambridge, 123; + his advocacy of Codification, 246, 247; + his share in the suppression of slavery, 309; + as a political economist, 311; + allusion to, 233; + the effect of his writings on Macaulay, 433; + Mill on Criminal Law, 424 + + Mill, John Stuart, Sir James Stephen's acquaintance with, 60, 76; + on hell and God, 74; + Sir J. F. Stephen on his 'Political Economy,' 104; + influence at Cambridge, 105, 123; + and on Sir J. F. Stephen, 124, 182, 183, 193, 202, 205, 206, 275; + Chairman of the Jamaica Committee, 228-230; + estrangement from Sir J. F. Stephen, 230, 231; + his theories concerning liberty, 299, 308-340; + his controversy with W. G. Ward, 367; + his indifference to evolution theories, 375 + + Millar, Mr. A. H., his account of the Dundee election, 344_n_ + + Milner, Miss Sibella. _See_ Stephen, Mr. James + + Milner, Mr., of Poole, his kindness to James Stephen, 3 + + Milner, Mr. George, 11, 13 + + Milner, Mr. Isaac, Evangelical leader at Cambridge, 31, 35, 36 + + Milner, Mr. Joseph, educates Rev. John Venn, 35 + + Milner, Mr. William, merchant, his bankruptcy, 3; + marries Miss Elizabeth Stephen, 8_n_ + + Milnes, Monckton, an 'Apostle' at Cambridge, 100, 102 + + Milton, John, 103, 359, 465 + + Missionaries in India, 299 + + Mister, hanged for attempted murder 77 + + Mivart, Mr. St. George, 455 + + Mohammedanism, 459 + + Moltke, Field-Marshal von, 319 + + Monteagle, Lord, on Sir J. Stephen as a talker, 53 + + Moody and Sankey, James Kenneth Stephen's 'constitutional' opposition + to, 471 + + More, Sir Thomas, 420 + + Morison, Miss Mary. _See_ Stephen, Serjeant + + Morison, Mr. William Maxwell, 8_n_ + + Morley, Mr. John, connection with the 'Saturday Review,' 150; + invites Sir F. J. Stephen to write 'Carlyle' for his series, 203; + replies to Stephen's criticisms of Mill, 339, 340 + + 'Morning Chronicle,' the, 148-150 + + 'Morning Herald,' the, 14 + + 'Morning Post,' the, Master James Stephen's connection with, 14 + + Morton, Mr., village postmaster at Ravensdale, 407 + + Mourne Mountains, 406 + + Mozley, Rev. T., 49_n_ + + Munro, Professor, 93 + + Murder, curious punishment for, anterior to 1487, 421 + + + Napier, Macvey, his 'Correspondence' cited, 55_n_, 88 + + Napoleon, Sir F. J. Stephen on his captivity, 359, 360 + + 'National Review,' the, 163, 484 + + Navigation Act, its provisions enforced by Nelson, 16 + + Nazim, Nawab, 254 + + Nelson, General, his share in the execution of Gordon, 227-230 + + Nelson, Horatio, captain of the 'Boreas,' enforces Navigation Act, 16 + + Nettlefold and Chamberlain arbitration case, 231, 232 + + Newark, Sir J. F. Stephen, Recorder of, 169, 236 + + Newcastle, Duke of, his interest in J. D. Cook, 150, 165; + chairman of Royal Commission on Education (1858), 165 + + Newman, Cardinal, review of his 'Apologia' by Sir J. F. Stephen, 175, + 190, 192; + their acquaintance + and discussions on theology, 190-200, 366; + Newman's ascetic and monastic views, 219, 338; + his 'Grammar of Assent,' 365 + + Newman's Rooms, Oxford, 105 + + Newton, John, 34 + + 'Nineteenth Century,' the, its account of the Metaphysical Society, + 360; + contributions to, 365, 366, 379, 381, 427_n_, 454, 455, 478, 486 + + North, Christopher, wrestling bout with Ritson, 95 + + 'Northampton Mercury,' the, 30 + + Northbrook, Lord, 395 + + North-Western Provinces (India), executive orders for, 252, 254 + + Novels, 109, 114, 123, 345, 484 + + Nuccoll, Mrs., daughter of Mr. James Stephen, 2 + + 'Nuncomar and Impey,' Sir J. F. Stephen's book on, 428-434, 484 + + + O'Connell, Daniel, the Agitator, 28, 82 + + Old Bailey, professional experiences at the, 302, 303 + + Orange, Prince of, 21 + + Ordnance Department Commission, Sir J. F. Stephen chairman of, 462, + 463 + + Oudh, executive orders applicable to, 253 + + Oxford, Newman's meetings at, 105 + + 'Oxford Essays,' 149 + + Oxford movement, Sir J. Stephen and the, 57, 58 + + Oxford University confers the D.C.L. degree on Sir J. F. Stephen, 402 + + + Paine, Thos., his 'Age of Reason,' Sir J. F. Stephen's impressions + concerning, 84; + allusion to, 125; + and the 'Rights of Man,' 311 + + Paley, William, his Utilitarian tendencies, 35; + Sir J. F. Stephen on his writings and teachings, 105, 124, 126, + 193, 226, 368 + + 'Pall Mall Gazette,' the, Sir J. F. Stephen's connection with, and + other particulars concerning, 169, 198_n_, 212-227, 232, 241, + 299, 306, 307, 340, 351, 381 + + Palmer, trial of, 146, 156 + + Palmerston, Lord, article on his death, 216-219; + effect of his death on parties, 222 + + Pantheism, Newman and, 192 + + Parke, Baron, 442 + + Parker, Theodore, 194, 195 + + Parknasilla, residence at, 405 + + Parliamentary Government, Sir J. F. Stephen on, 320, 350, 351 + + Pascal, 226 + + Pattison, Mark, on the meetings in Newman's Rooms at Oxford, 105; + his connection with the 'Saturday Review,' 150; + his share in the Education Commission (1858), 165; + his connection with the Metaphysical Society, 361 + + Peacock, Sir Barnes, Chief Justice of Calcutta, 235; + his share in Indian law reforms, 248, 267 + + Pearson, Charles Henry, 120 + + Peel, Sir Robert, connection of his followers with the 'Morning + Chronicle,' 148; + his reform of the criminal law, 247 + + Pember, Mr., 467, 468 + + Perceval, Mr. Spencer, his Orders in Council, 19; + murdered, 20 + + Perry, Sir Erskine, and consolidation of Acts relating to India, 355 + + 'Peter Simple,' 168 + + 'Pilgrim's Progress,' the, 69 + + Pitt, Wilberforce's antagonism toward, 18 + + Place, Francis, and Zachary Macaulay, 309 + + Plato, 97, 358, 363 + + Politics, Sir J. F. Stephen's views on and interest in, 104, + 106-109, 113, 160, 161, 222-225, 453, 456, 460-462 + + Pollock, Chief Baron, description of, 140; + appoints Stephen revising barrister, 173; + arbitrator in the Nettlefold and Chamberlain case, 232 + + Pollock, Sir Frederick, on Sir J. F. Stephen's 'History of the + Criminal Law,' 418 + + Pontius Pilate, 326 + + Poole, James Stephen's enterprise at, 4 + + Pope, 34, 400 + + Popish plots, Sir J. F. Stephen's account of, 420 + + Positivism, Sir. J. F. Stephen's views on, 161, 335-339, 374, 454 + + Price and the 'Rights of Man,' 311 + + Price, William, the 'Druid,' 450 + + Prize Appeal Court of the Privy Council, the, James Stephen's + connection with, 17 + + Protestantism, Newman on, 193; + and Rationalism, 309, 310 + + 'Public Advertiser,' the, James Stephen's contributions to, 5 + + Public Schools Commission, the, 81 + + Punishment considered in its relation to revenge, 161, 162; + and to Mill's theory, 322, 323 + + Punjab, executive orders applicable to the, 253; + administration of the province by Lord Lawrence, 255, 285; + its 'Civil Code,' 255; + regulations relating to the Punjab consolidated, 256; + Land Revenue Act, 256-258, 277; + Criminal Tribes Act and measure repressing kidnapping of children, + 258, 259, 283 + + Purbeck Island, James Stephen shipwrecked on, 2 + + Purgatory, the doctrine of, 372 + + Puritanism, Sir J. F. Stephen and, 309, 336, 368 + + + 'Quo Musa Tendis,' James Kenneth Stephen's, 476 + + + Raleigh, allusion to, 420 + + Rapin's History, Master James Stephen's early acquaintance with, 9 + + Rationalism, Sir J. Stephen and, 56; + its exponents combine with Protestants against Sacerdotalism, 309; + Sir J. F. Stephen and, 371 + + Ravenscroft, Miss. _See_ Stephen, Sir George + + Reade, Charles, Sir J. F. Stephen on his 'Never Too Late to Mend,' + 158 + + 'Reasoner,' the, attacked by the 'Saturday Review,' 155 + + 'Record,' the, criticised by the 'Saturday Review,' 155 + + 'Reflector,' the, James Kenneth Stephen's paper, 474, 475 + + Reform Bill of 1832, Sir J. F. Stephen on the, 224, 247 + + Renan, his writings, 369, 422 + + Ricardo as a political economist, 205, 311, 312 + + Richardson, Mr. Joseph, of the 'Morning Post,' 14 + + Ritson, the wrestler, 95 + + Roberts's 'Hannah More,' 24_n_ + + Robespierre, Sir J. F. Stephen's reflections on, 180 + + Robinson, Crabb, on James Stephen, 33 + + 'Robinson Crusoe,' 69, 155, 156 + + Rogers, Rev. William, on the Education Commission (1858), 165-167 + + Roman Catholicism, Sir George Stephen and, 29; + Sir J. Stephen and, 56-58; + Sir J. F. Stephen and, 191, 194, 219-222, 366-368, 372, 373, 455 + + Roman rule in Syria, an analogy, 297; + in Palestine, 326 + + Romilly, Lord, and Sir J. Stephen, 22; + his efforts to reform the criminal law, 247; + retires from Mastership of the Rolls, 343 + + 'Rotuli Parliamentorum,' 414 + + Roy, Ram Mohun, founder of the Brahmos sect, 260 + + Rugby School, visit to, 76; + contrasted with Eton, 81 + + Rundle, Rev. Thomas, and the Rev. Richard Venn, 34 + + Ruskin, Mr. John, an expositor of Carlyle's socialistic theories, + 202; + his connection with the Metaphysical Society, 361 + + Russell, Lord Arthur, 386 + + 'Russell on Crimes,' 376 + + Russia, Bentham and codification in, 246; + and the Eastern Question, 394, 395 + + Ryan, Sir Edward, his position in the Privy Council, 89_n_ + + + St. Christopher's, West Indies, members of the Stephen family at, 2, + 11, 14, 16, 17 + + 'St. James's Gazette,' the, particulars concerning, 457_n_, 460, 474 + + Sainte-Beuve, the writings of, 226, 298 + + Salisbury, Sir J. F. Stephen at, 343 + + Salisbury, Marquis of, 354, 355, 392, 401 + + Sandars, Thomas Collett, 152, 178, 197 + + 'Sandford and Merton,' 72 + + 'Saturday Review,' the, Sir J. F. Stephen's connection with, 96, 147, + 148, 152-165, 167, 375, 466, 468; + its first editor, 149, 150, 165; + some of its noted contributors, 150-152; + characteristics of the journal, 150, 153, 154; + its arraignment of popular idols and contemporary journals, + 154-157, 160-162; + secession from, 177; + character of its 'Middles,' 178 + + Savigny, John Austin and, 356 + + Schiller, 68 + + Scott, Dr., at Cambridge, 94 + + Scott, Sir Walter, 40; + his works quoted, 142, 319, 326; + literary character of his 'History,' 417 + + Scroggs, Sir William, 419, 420 + + Seditious libels, 84, 423 + + Seeley, Professor, and his 'Ecce Homo,' 200, 221 + + Selborne, Lord, 343; + his connection with the Metaphysical Society, 361 + + Selden Society, the, its objects, 379 + + Senior, Nassau, friendship with Sir J. Stephen, 60; + Education Commissioner (1858), 165-167 + + Sermon on the Mount, the, 126, 132, 213_n_ + + Shakespeare's 'Henry the Fifth,' 68 + + Sharpe, Granville, Sir J. Stephen's acquaintance with, 55 + + Shelley, views on his essays, 103 + + Sherbrooke, Lord. _See_ Lowe, Mr. Robert + + Sheridan, Richard Brinsley, 21, 433 + + Sheridan, Mr., innkeeper at Achill, 409 + + Sidgwick, Professor, on Sir J. F. Stephen and the 'Apostles,' 103; + his connection with the Metaphysical Society, 361, 362 + + Simeon, Rev. Charles, founder of the 'Sims,' 35, 128 + + Simla, Sir J. F. Stephen at, 237, 240, 243, 245, 304 + + Singh, Ram, of the Kookas sect, 296, 297, 326 + + Slave trade, the Stephen family and the 2, 15-17, 28, 46, 47, 402 + + Smart, Christopher, the crazy poet, 4, 5, 9 + + Smith, Adam, his political economy, 205 + + Smith, Mr. Bullen, his share in the Indian Contract Act, 276 + + Smith, Mr. George, Sir J. F. Stephen's connection with, 178, 183, + 212, 213 + + Smith, Mr. Goldwin, connection with the 'Saturday Review,' 150; + Education Commissioner (1858), 165 + + Smith, Henry John Stephen (mathematician), 120, 185; + memoir, 120n; + estimate of his character and powers, 121; + Stephen's account of their relations, 122 + + Smith, Mr. Reginald J., 469_n_, 474 + + Smith, Sydney, and the 'Clapham Sect,' 55_n_; + as a clergyman, 118; + and the Church of England, 471 + + Smith, Mr. W. H., appoints Sir. J. F. Stephen chairman of Ordnance + Commission, 462, 463 + + Smith, Elder & Co., Messrs., publishers of the 'Cornhill Magazine,' + 177 + + Smyth, Professor William, death of, 89 + + Sneem Harbour, 405 + + Snow, Captain Parker, arctic explorer, 167, 168, 173 + + 'Social Science Association,' the, Sir J. F. Stephen's address to, + 246_n_ + + Socialism, Sir J. F. Stephen and, 104, 312, 462 + + Socinianism, Newman and, 192 + + Sortaine, Mr., anti-papist, 75 + + Southey, Robert, his literary labours, 163 + + Spain, Bentham and codification in, 246 + + Spanish, Sir J. F. Stephen's study of the language, 435, 464 + + Spanish Inquisition, 325, 326, 422 + + Spedding, James, friendship with Sir J. Stephen, 59; + and J. F. Stephen, 97; + an 'Apostle' at Cambridge, 100, 102 + + Spencer, Mr. Herbert, 311, 453, 454 + + Spiritual Courts, history of the, 422 + + Spring Rice, Mr. Cecil, and the 'Etonian,' 470 + + Stafford election petition, 235 + + Stanley, Dean, 185; + his sermon on Lord Lawrence, 468 + + Star Chamber, the, 420 + + State trials, 146, 156, 379, 417 + + Staubbach, the, 42 + + Steele, Sir Richard, his quarrel with Addison, 430 + + Stent, Mr., Mrs., Miss Anne and Thomas, 9, 12, 13. _See also_ + Stephen, Mr. James + + Stephen, Mr. Alexander, 2 + + Stephen, Sir Alexander Condie, K.C.M.G., 1_n_ + + Stephen, Sir Alfred, 24, 25; + his pamphlets, 24_n_; + descendants, 25 + + Stephen, Miss Anne Mary. _See_ Dicey, Mr. Thomas + + Stephen, Miss Caroline Emelia, 65_n_, 66 + + Stephen, Miss Elizabeth. _See_ Milner, Mr. William + + Stephen, Miss Frances Wilberforce, 42, 65 + + Stephen, Sir George, 'Life' of his father James Stephen, 24_n_; + characteristics of, 27; + his career and writings, 28, 29, 113; + marries Miss Ravenscroft, 29_n_; + his children, 29_n_; + his death, 29 + + Stephen, Miss Hannah. _See_ Farish, Professor William + + Stephen, Henry John, S. L., his life, writings, and family, 26, 27, + 120, 122 + + Stephen Sir Herbert, 'Note' on Sir J. F. Stephen's life in Ireland, + 405-409 + + Stephen, Mr. Herbert Venn, his birth, 42, 65; + his army experiences, 38; + discussions and relations with J. F. Stephen, 83; + tour to Constantinople and death at Dresden, 88 + + Stephen, Mr. James, of Ardenbraught, 1_n_ + + Stephen, Mr. James, tenant farmer, and family, 1 + + Stephen, Mr. James, writer on imprisonment for debt, 2; + early history, 2; + adventures on Purbeck Island, 2, 3; + marriage to Miss Sibella Milner, 3, 5, 6; + commercial failure, 3; + manager of Sir John Webbe's estate, 4; + imprisoned in King's Bench prison for debt, 4; + efforts to prove illegality of imprisonment, 4; + consequent popularity among fellow-prisoners, 4, 5; + arguments and writings on the subject, 5, 6; + removed to the 'New Jail,' 5, 6; + 'Blarney' Thompson's portrait of, 6; + release of Stephen from prison, 6; + connection with the legal profession, 6-8; + his family, death of his wife, 8; + his death, 8 + + Stephen, Mr. James, Master in Chancery, at King's Bench Prison, 5, 9; + education and early training, 8, 9; + his relations with the Stents, 9-12; + chequered career, 10; + studies law at Aberdeen, 11; + legal business in London, 11; + his love affairs, 12-15; + life as a journalist, 14; + called to the Bar, 14; + practice at St. Christopher's, 14; + marriage to Miss Stent, 15; + character, 15; + speech against slavery, 15; + attends trial of slaves for murder at Barbadoes, 16; + prosecutes planter for ill-treating negro children, 16; + flourishing law practice at St. Christopher's, 16, 17; + returns to England, 17; + employment in the Cockpit, 17; + joins Wilberforce in his anti-slavery crusade, 17; + death of his first wife, 17; + second marriage, to Mrs. Clarke, 17; + her eccentricities, 18; relations with Wilberforce, 18; + his pamphlet on the slave trade, 18; + his 'War in Disguise,' 19; + the policy suggested therein adopted by the Government, 19; + enters Parliament, 19, 20; + Brougham's criticism of Stephen, 20; + speech of Stephen in opposition to Benchers' petition, 20, 21; + Parliamentary encounter with Whitbread, 21; + resigns his seat as a protest against slackness of Government in + suppressing the slave trade, 21, 22; + Master in Chancery, 22, 32; + death of his second wife, 22; + town and country residences, 22, 23; + his works on the slave trade, 22, 23, 32; + example of his prowess, 23; + his faith in the virtue of port wine, 23; + death and burial, 23, 24; + relatives, 24; + authorities for his life, 24; + his children, 25-33 + + Stephen, His Honour Judge, son of Serjeant Stephen, 27_n_ + + Stephen, Sir James, father of Sir James Fitzjames, 25; + birth and early training, 31; + the 'Clapham Sect,' 24_n_; + college life, 31; + official appointments, 32; + character, 33; + marriage to Miss Venn, 33, 130; + influence of the Venns over, 36, 59; + visit to the Continent, 41; + birth of his eldest son, 42; + illness, 42; + Counsel to the Colonial Office and Board of Trade, 42; + adopts F. W. Gibbs, 42; + Sir F. J. Stephen's life of his father, 43; + Sir James's 'Essays in Ecclesiastical Biography,' 43, 54; + relations with Sir Henry Taylor, 43; + duties and influence at the Colonial Office, 44-46; + gluttony for work, 45, 50; + nicknames, 46; + interest in the suppression of slavery, 46, 48; + appointed Assistant Under-Secretary, 48; + resigns Board of Trade, 49; + share in the establishment of responsible government in Canada, 49; + sensitive and shy in disposition, 51, 52; + tenacity of opinion, 52; + perfection and richness of his conversational diction, 52-54; + character of his essays and letters, 54, 55; + religious creed and sympathies, 55-59; + distinguished acquaintances and friends, 59, 60; + distaste for general society and feasts, 60, 61; + his ascetic temperament and systematic abstemiousness, 61; + delight in family meetings, 61; + evangelical character of his household, 61-63; + as a father, 63, 64; + physical and personal characteristics, 64; + family, 65; + talks with Fitzjames, 69, 75, 76, 82, 84, 89; + concern for Fitzjames's health, 74-76; + places his sons at Eton, 77, 78; + anxiety concerning his son Herbert, 84; + letter to Fitzjames, 85; + effect of Herbert's death on, 88; + illness and resignation of his post, 89; + made a Privy Councillor and created K.C.B., 89; + Regius Professor of Modern History at Cambridge, 89; + delivery, reception and publication of his lectures, 89, 90; + accepts professorship at Haileybury, 91; + desires a clerical career for Fitzjames, 113, 118; + and Fitzjames's views on theology, 124, 127, 128; + Sir James satirised in 'Little Dorrit,' 159; + his criticisms of Fitzjames's literary work, 162, 163; + on the slavery of a journalistic career, 163, 164; + suggestions to Fitzjames for a legal history, 164, 414; + last days and death, 169, 170; + inscription on his tombstone, 170 + + Stephen, Lady, birth, 36_n_; + marriage, 33; + personal characteristics, 39, 40; + love of the poets, 40; + devotion to her husband and children, 40; + serenity of disposition, 40, 41; + religious convictions, 41; + her reminiscences of Switzerland, 42; + her diary, 66, 67; + Sir F. J. Stephen's letters to, from India, 238, 291-296; + last years and death, 300, 301 + + Stephen, Sir James Fitzjames--_Family History_: James Stephen + (great-grandfather), 1-8; + Master James Stephen (grandfather) and his children, 9-33; + the Venns, 33-41; + Sir James Stephen (father), 41-65 + + Stephen, Sir James Fitzjames--_Early Life_: Birth, 65_n_, 66; + material for his biography, 66, 67; + examples of a retentive memory, 67, 68; + infantile greeting to Wilberforce, 67; + acquaintance with the poets and other standard works, 68, 69; + precocious views on religion and moral conduct, 69-72; + love for his father, their talks on theology and other subjects, + 69, 71, 75, 76, 82, 84; + home life and behaviour, 71, 72; + school life at Brighton and the effect of an excess of Evangelical + theology received there, 72-74, 76; + visits Rugby, impression of Dr. Arnold, 76; + at Eton, account of his public school life, 77-82; + argument with Herbert Coleridge on the subject of Confirmation, 82; + contempt for sentimental writers, 83; + discussions with his brother Herbert on ethics, 83, 84; + progress at Eton, his contemporaries and amusements, 84, 85; + visit to the Beamonts, 85; + leaves Eton, 86; + enters King's College, London, 86; + enters its debating society, 87; + progress of his studies, 87; + his opinion of Henry Venn, 87; + and Dr. Jelf, 88; + relations with F. D. Maurice, 88; + death of his brother Herbert, 88; + analysis of his character in his Cambridge days, 91, 92; + dislike for mathematics and classics, 93, 94; + Mr. Watson on his Cambridge career, 94, 95; + distaste for athletics generally, 95; + but fondness for walking as an exercise, 96; + his Alpine ascents, 96; + tutors and contemporaries at Cambridge, 97; + his share in a scene during one of the debates, at the Union, 98, + 99; + encounters with Sir William Harcourt, 99, 106; + connection with the Cambridge Conversazione Society, 100-108; + themes supported by him whilst an 'Apostle,' 103-106; + theological opinions at this period, 106; + interest in contemporary politics, the French Revolution, 107-109; + and the Gorham case, 109; + visits Paris, 109; + his affection for Cambridge and reasons for his failure there, + 110-114; + reading for the Bar, 114; + autobiographical memoranda and criticisms dealing with the choice + of a profession, 114-116; + a clerical career suggested, 117; + enters the Inner Temple, 118; + early legal education and practice, 118, 119; + introduction to journalism, 119; + takes LL.B. degree, Lond., 119; + relations with Grant Duff and Smith, 119-122; + his readings of Stephen's Commentaries, Bentham, Greg, Lardner, and + Paley, 123, 124; + impressions of Maurice, 124, 125; + recollections of his theology by Mr. Llewelyn Davies, 125, 126; + the 'Christian Observer,' 127-129; + autobiographical account of his courtship and marriage, 129, 130 + + Stephen, Sir James Fitzjames--_The Bar and Journalism_: Manifestation + of moral and mental qualities described, 131, 132; + his powerful affections and lasting attachments, 133; + the positions of journalism and the law as affecting his career, + 134-136; + called to the Bar, 136; + first brief, 136; + joins the Midland Circuit, 136-138; + his views on the English Bar, 139; + contemporaries on Circuit, 139; + on monastic life, 139, 140; + at the Crown Court, 140; + characteristics of judges with whom he had intercourse, 140; + Mr. Justice Wills's recollections of Fitzjames, 141-144; + method and manner as an advocate, 144, 145; + distaste for professional technicalities, 145, 146; + interest in criminal trials, 146; + the Bacon case, 146-148, 173; + work as a journalist, 148; + contributes to the 'Morning Chronicle,' 'Christian Observer,' 'Law + Magazine,' 149; + 'Saturday Review,' 152-155; + criticisms on novels and novelists, 155-161; + opposition to the policy of the Manchester School, 160, 161; + his views on theology and denunciation of Positivism, 161; + doctrine of revenge and punishment, 161; + Sir James Stephen on Fitzjames's literary work, 162-164; + a legal history attempted and abandoned, 164, 165; + work on the Education Commission (1858), 165-167; + literary work and interest in Arctic adventure, 167; + the case of Captain Parker Snow, 167, 168, 173; + Recorder of Newark (1859), 169; + last days and death of his father, 169-171; + his essay on the Wealth of Nature, 170; + appreciation of James Grant Duff, 171; + death of John Austin and Lord Macaulay (1859), 172; + enumerating his labours during this period, 172; + progress at the bar, 173; + complimented by Mr. Justice Willes, 173; + revising barrister for North Derby, 173; + presented with a red bag, 173; + Circuit successes in 1862-3, 173; + reflections and performances during this period, 174, 175; + the two principal cases, 175; + his defence of a murderer, 176; + character of his literary work: 'Essays by a Barrister,' + contributions to the 'London Review,' 'Cornhill Magazine,' and + 'Fraser's,' 177-184; + his conduct of Dr. Williams's trial, 184-187; + his theological views at this time, 188-200; + his acquaintance and discussion with Newman, 190-200; + his articles in 'Fraser's Magazine' and intimacy with Froude, 200, + 201; + friendship with the Carlyles, 201-203; + his General 'View of the Criminal Law,' 203; + aim and scope of the work, 203, 204; + fundamental agreement with Bentham and Austin, 204; + his article on Jurisprudence and criticism of Maine, 204-206; + comparison of the English and French criminal systems, 206-210; + divergence from Bentham, 207, 208, 210, 211; + appreciation of the English system, 211; + favourable reception of the work, 211; + Mr. Justice Willes and the Press on his works and his ability and + eloquence as an advocate, 211, 212; + connection with the 'Pall Mall Gazette,' 212; + his contemporaries and antagonists on the journal, 212, 213; + number of articles appearing in its columns, 213, 214; + character of his productions and method of procedure, 214-216; + his article on Palmerston as an example of his style, 217, 218; + reflections on his characteristics as a journalist, 218, 219; + breadth of theological views, 218-222; + political convictions, his liberalism defined, 222-225; + summary of his literary activity at this time (1865-1878), 225, + 226; + his literary tastes and aspirations, 226, 227; + his share in the agitation against Governor Eyre, 227-230; + estrangement from J. S. Mill, 230, 231; + professional work: arbitration cases, Nettlefold & Chamberlain, + 231, 232; + takes silk in 1868, and acts as judge, 232; + Counsel in election petition cases, 232, 233, 235; + early and continued interest in India, 233; + stimulated by presence of friends leads him to accept appointment, + 234-236; + short residence in Ireland previous to departure for India, 235, + 236 + + Stephen, Sir James Fitzjames--_Indian Appointment_: length of his + stay and details of his domestic experiences in India, 237, 238; + as a letter-writer, 238; + style of his correspondence, frankness, 239, 240; + paternal affection, 240, 241; + insatiable appetite for journalistic work, 241; + personal account of his official duties, 242; + his estimate of Indian Civil servants, 243; + his description of life in Calcutta, 244; + friendships formed, 245; + personal nature of his Indian story, 241, 242; + sources from which it has been culled, 246_n_; + his official work in India, 246; + his views on the Penal Code, 247; + Fitzjames and the initiation and development of legislation in + India, 249, 250; + on the framing of a code, 250; + nature of his task, 252; + his Act consolidating the Bengal Criminal Law (1871), 254; + the Punjab Civil Code, 255, 256; + the Punjab Land Revenue Act (1871), 256-258, 277; + the Criminal Tribes Act, 258, 259, 283; + the Native Marriages Act (1872), 260-266, 277; + his share in amending the Penal Code, 266, 267; + interest in the law relating to Seditious Libels, 267; + his share in amending the Code of Criminal Procedure, 268-270, 277; + his views on the Penal Code and the Code of Criminal Procedure, + 270, 278; + his treatment of the Evidence Act, 271-275; + his appreciation of the Limitation of Suits Act, 275, 276, 278; + revision of the Contract Act, 276, 277; + his Bills on Hindoo wills and oaths, 277; + summary of the results of his official labours, 277, 278; + Sir C. P. Ilbert and other critics on his legislation, 279; + his intellectual fitness for the work, 279-282; + the special principles of Indian legislation, 282; + as expounded in Lord Mayo's 'Life,' 282-289; + as given in his 'Minute on the Administration of British India,' + 289-291; + his account of Lord Mayo's work, his murder, State ceremonial, and + trial of the murderer, 291-296; + views on the prosecution and sentences of the Kookas sect, 296, + 297; + last attendance at Legislative Council, 297 + + Stephen, Sir James Fitzjames--_Last Years at the Bar_: Occupation + during voyage to England, 298; + article on 'May Meetings,' 299; + educational value of Indian experience, 299; + arrival in England and meetings with old friends, 300; + death of his uncle Henry and close of his mother's life, 300, 301; + return to professional career, 301; + his hopes concerning codification, 302, 305, 306; + position in intellectual society, 302; + appearance at the Old Bailey, 302; + goes on Circuit, 303; + prepares Homicide and other Bills, and disgust at English + legislative methods, 304-306; + his 'Liberty, Equality, Fraternity,' an Apologia, 306-308; + his differences with Mill's latter theories, 308-317; + views on law and the necessity of coercion in all matters + appertaining to morality, 317-337; + views on God and a future life, 337-339; + criticisms of the book, 339, 340; + invited to stand for Liverpool, 340; + expectations regarding codification and law-office appointments, + 340, 341, 351; + acts as Judge, vice Mr. Justice Lush, 341, 342, 350, 351; + contests and is defeated at Dundee, 343-349; + Lord Beaconsfield on Stephen as a politician, 349; + his lectures on Parliamentary Government, 350; + prospects of a judgeship disappear, 352; + resolves to codify and devote himself to literary work, 353; + the Homicide Bill, 353, 379; + work on Consolidating Indian Acts, 354, 355; + and English law of contracts, 355_n_, 356; + leading counsel for London, Chatham and Dover Railway Co., 356; + practice before the Judicial Committee of the Privy Council, 357; + connection with the Metaphysical Society, 358-375; + work on the Criminal Code, 375, 376; + the 'Digest,' 377; + appointed Professor of Common Law at the Inns of Court, 377, 378; + his 'Digest' of the English Law of Evidence, 377; + his advanced reputation and schemes of various legal reforms, 379; + Penal Code scheme, 379-381; + volume of his past work as a journalist, 381; + professional engagements on Ecclesiastical cases, 382-386; + his correspondence and friendship with Lord Lytton, 386-390; + nature of the correspondence, 390, 391; + Stephen's defence of Lytton's Indian policy, 391-400; + his political views at this time, 400, 401; + made K.C.S.I, 401; + D.C.L. Oxford, and member of several commissions, 402; + appointed judge, 402-404; + note on his life in Ireland, 405-409 + + Stephen, Sir James Fitzjames--_Judicial Career_: First appearance, + 410; + his 'History 'of the criminal law, 411, 412; + account of its inception, 412, 413; + the 'historical method,' 413, 414; + Professor Maitland's view of the work, 415, 416; + character of his literary style, 416, 417; + contents of the work, 418; + method of dealing with his subjects, 419; + history of trial by jury, 419-421; + history of the 'benefit of the clergy,' and Spiritual Courts, 421, + 422; + history of impeachments, 423; + ethical problems raised by the inquiry, 423-428; + his work on Nuncomar and Impey: differences with Macaulay, 428-434; + illness, 435, 436; + judicial characteristics, 437-445; + the convict Lipski, 446; + and Mrs. Maybrick, 447; + his authority with juries in criminal cases, 448, 449; + examples of his judgments, 449, 450; + miscellaneous occupations: correspondence with Lord Lytton and Lady + Grant Duff, 451; + private, personal and other particulars regarding these letters, + 451, 452; + his views on religious matters, 454-456; + his poem on Tennyson's 'Despair,' 456-458; + his dislike for Buddhism and ascetic Christianity, 458, 459; + respect for Mohammedanism and Calvinism, 459, 460; + his contributions to the 'St. James's Gazette,' 460; + his criticisms and opposition to the 'Ilbert Bill' and Home Rule, + 460-462; + chairman of Ordnance Commission and judicial labour, 462, 463; + prepares the second edition of the 'View,' 463; + variety of his reading and study of languages at this time, 463, + 464; + Spanish and Italian languages, Cervantes and Dante, 464, 465; + Milton, 465; + death of his friends Maine and Venables, 466-468; + appoints his son Clerk of Assize, 475; + death of his son and Lord Lytton, 477; + illness and resignation, 477, 478; + created a baronet, 478; + his French, Scottish and American honours, 478; + residence at Ipswich, 478, 479; + death and burial, 479, 480; + reflections on his career, 480, 481; + bibliography of his works and essays, 483-486 + + Stephen, James Kenneth, birth and education, 469; + Eton contemporaries, 470; + prowess as an athlete, 470; + literary achievements and connection with the 'Etonian,' 470; + his 'constitutional' opposition to Moody and Sankey, 471; + prizeman at Eton, 471, 472; + life at Cambridge University, 110, 472; + takes the character of 'Ajax,' 473; + personal characteristics and political predilections, 473; + elected Fellow of King's College, 473; + called to the Bar, 474; + oratorical powers, 474; + his literary venture, the 'Reflector,' and its fate, 474, 475; + appointed Clerk of Assize on South Wales Circuit, 475; + resignation of his assize clerkship and settlement at Cambridge, + 476; + illness and death, 477 + + Stephen, Mr. James Wilberforce, 29_n_ + + Stephen, Mr. James Young, 1_n_ + + Stephen, Mr. John, 1_n_ + + Stephen, Mr. John, 8_n_ + + Stephen, Mr. John, Judge in N. S. W., 24 + + Stephen, Mr. Leslie, 65_n_, 66; + on Public School life at Eton, 78, 79; + ascent of the Jungfrauwith Sir J. F. Stephen, 96; + on the Metaphysical Society, 361, 362 + + Stephen, Miss Mary. _See_ Hodson, Archdeacon + + Stephen, Mr. Oscar Leslie, 1_n_ + + Stephen, Mr. Oscar Leslie, junior, 1_n_ + + Stephen, Miss Sarah, character and works, 27_n_ + + Stephen, Miss Sibella. _See_ Morison, Mr. William Maxwell + + Stephen, Miss Sibella. _See_ Garratt, Mrs. W. A. + + Stephen, Mr. Thomas, Provost of Dundee, 1_n_ + + Stephen, Dr. William, physician and planter at St. Christopher's, 2; + quarrel with his brother James, 3; + interest in his nephew William, 11; + his death, 14 + + Stephen, Mr. William, 8_n_; + visits his uncle at St. Christopher's, 10; + returns home and studies medicine, 10; + settles at St. Christopher's, 11; + assists his brother James, 14 + + Stephen, Mr. William, 8_n_; + his career, 10, 11, 14, 23; + death, 24; + his wife (Mary Forbes) and family, 24 + + Stephen, Rev. William, characteristics of, 25, 26; + marries Miss Grace, 25 + + Sterling an 'Apostle' at Cambridge, 100 + + Sterne, as a novelist, 155 + + Stewart, Mr., his share in the Indian Contract Act, 276 + + Stokes, Sir George, 93 + + Stokes, Mr. Whitley, 246_n_, 249, 271, 275, 393 + + Storks, Sir Henry, member of the Jamaica Commission, 228 + + Strachey, Sir J. F. Stephen's friendship with, 245; + official duties in India, 269, 393, 400; + residence in Ireland, 386, 406 + + Stuarts, the Criminal Law in the time of, 420-422 + + Stubbs, Dr., 414 + + Swift as a clergyman, 118; + his pessimistic views on politics and religion, 453 + + Swinburne, Algernon Charles, his merits as a poet, 152 + + Switzerland, visit of Sir J. and Lady Stephen to, 41, 42 + + Sykes, Miss Martha. _See_ Venn, Rev. Henry + + Syria, the Romans in, an analogy, 297 + + + 'Tablet,' the, on the Ward-Stephen controversy, 307 + + Talleyrand, 60 + + Taylor, Sir Henry, his intimacy with Sir J. Stephen, and story of the + latter's official career, 43-55, 59 + + Taylor, Mr. P. A., vice-chairman of the Jamaica Committee, 228 + + Taylor, Tom, an 'Apostle' at Cambridge, 100 + + Taylor on Evidence discussed, 274, 275 + + Temple, Sir Richard, prepares the Punjab Civil Code, 255; + on the Punjab Land Revenue Act, 257; + his share in the Indian Code of Criminal Procedure, 269 + + Tennyson, Alfred, an 'Apostle' at Cambridge, 100; + criticism of the 'Princess,' 103; + quoted, 130; + intimacy with G. S. Venables, 151, 152; + connection with the Metaphysical Society, 360, 361; + his 'Maud' quoted, 398; + his poem 'Despair,' 456, 457 + + Thackeray, Miss (Mrs. Richmond Ritchie), Sir J. F. Stephen's letters + to, 238, 242, 243 + + Thackeray, W. M., reference to his works and characters, 108, 144, 150; + intimacy with G. S. Venables, 151; + edits the 'Cornhill Magazine,' 177; + intimacy with J. F. Stephen, 177 + + Theology, Sir J. F. Stephen and, 104-106, 109, 113, 428, 453-456 + + Thirlwall, Bishop, the historian, his defence of the Cambridge + 'Apostles,' 100 + + Thomason, Mr., his works relating to the administration of the + Punjab, 257 + + Thompson, William ('Blarney'), the painter, 5; + his portrait of Mr. James Stephen, 6 + + Thompson, W. H., 97; + an 'Apostle' at Cambridge, 102; + Master of Trinity, Cambridge, 251 + + Thomson, Dr. William (Archbishop of York), Sir J. F. Stephen's review + of his pamphlet, 198 + + Thornton, Mr. Henry, of the Clapham Sect, 34 + + Thornton, Mr. John, of the Clapham Sect, 34 + + Throckmorton, 420 + + Tichborne Claimant, the, 342 + + Tierra del Fuego, Captain Parker Snow's explorations in, 168 + + 'Times,' the, J. D. Cook's and J. S. Venables' connection with, 150, + 151_n_; + criticised by the 'Saturday Review,' 155; + Sir J. F. Stephen's letters to 394, 395, 461 + + Tocqueville, on Sir J. Stephen's Lectures on France, 90; + influence of his writings on J. S. Mill, 313 + + Tooke, Horne, 368, 455 + + 'Torch,' the, its account of the Dundee election, 346, 347, 350 + + Trappist Monastery, Charnwood Forest, Sir J. F. Stephen's visit to, + 139, 140 + + Trevelyan, Sir George, 408 + + Tudors, the Criminal Law in the time of the, 420 + + Turkey, war with Russia, 394 + + Tyndall, Professor, his connection with the Metaphysical Society, 361 + + + Ultramontane controversy, 219-221 + + Unitarianism, 35; + its counterpart in India, 261 + + United States, the, effect of James Stephen's writings on England's + relations with, 19; + legislation in, compared with England, 304. _See_ America _and_ + American + + Utilitarianism and Utilitarians, 104, 116, 123, 230, 246, 299, + 310-312, 317, 321, 328, 332-337, 368, 424 + + + Venables, George Stovin, friendship with Sir J. F. Stephen, 151, 238, + 241, 385; + his public school, university, and professional career, 151; + his contributions to the 'Saturday Review' and 'Times,' 151, 152; + Sir J. F. Stephen's biographical notice of, 467, 468 + + Venables, Mrs. Lyster, 468 + + Venn, Miss Caroline. _See_ Batten, Rev. Ellis + + Venn, Miss Catherine Eling, 35_n_ + + Venn, Miss Emelia, particulars concerning, 36_n_, 38-40, 300 + + Venn, Rev. Henry, Vicar of Huddersfield, his character, life, and + works 34, 35 + + Venn, Rev. Henry, birth and education, 36; + influence over James Stephen, 36, 59, 61; + marriage to Miss Sykes, 36; + livings, 36; + connection with Church Missionary Society, 37; + character, 37-40; + his vindication of Sir J. Stephen, 56; + J. F. Stephen's residence with and opinion of, 86, 87; + on the choice of a profession for Fitzjames, 115, 118; + suggests that he should edit the 'Christian Observer,' 127, 128; + his death, 300 + + Venn, Rev. John, of Clapham, 33 + + Venn, Rev. John, Rector of Clapham, 35; + founder and projector of the Church Missionary Society, 35; + his wife (Miss Catherine King) and child, 35_n_, 36 + + Venn, Rev. John, birth, 36_n_; + influence over James Stephen, 36, 59, 61; + life in Hereford, 38; + character, 39; + connection with Rev. J. W. Cunningham, 129; + Sir J. F. Stephen visits, 300 + + Venn, Dr. John, on the Venn family, 33_n_ + + Venn, Rev. Richard, 33; + marries Miss Ashton, 34 + + Venn, Rev. William, Vicar of Atterton, 33_n_ + + Victoria, Queen, proclaimed Empress of India, 398 + + + Walpole, his 'Life of Perceval,' 24 + + Walter, Mr. John, his interest in J. D. Cook, 150 + + War Office, disorganised state of, 305 + + Warburton, Bishop, and the Rev. Richard Venn, 33; + as a clergyman, 118 + + Ward, Mr. W. G., his connection with the Metaphysical Society, 361, + 362; + his encounters with Sir J. F. Stephen, 365, 367, 368, 371 + + Warwick, Sir J. F. Stephen at, 303 + + Watson, David, his Unitarian tendencies, 35 + + Watson, Rev. W. H., on Sir J. F. Stephen at Cambridge, 94; + an 'Apostle' at Cambridge, 102 + + Watts's Hymns, 68 + + Webbe, Sir John, his business relations with James Stephen, 4, 6 + + Webster, Sir Richard, Attorney-General, 478 + + Wellesley, his work in India, 395, 399 + + Wengern Alp, the, 42 + + Wensleydale, Lord, 275 + + Wesley, Rev. John, 34; + Sir J. Stephen on, 56; + and the Church of England, 126 + + Westbury, Lord, 169, 225; + his judgment in Dr. Williams's case, 186, 187 + + Whewell, William, at Cambridge University, 95; + relations with Sir James and J. F. Stephen, 97 + + Whewell Scholarship at Cambridge, 472 + + Whitbread, Samuel, Parliamentary encounters with James Stephen, 21 + + Whitefield, George, 34 + + Whitworth, Mr. G. C., his criticisms of Sir J. F. Stephen's Views on + the Law of Evidence, 275 + + Wilberforce, William, his crusade against the slave trade and + relations with James Stephen, 17, 18, 22, 24; + presents Rev. Henry Venn to living, 36; + Sir James Stephen and, 55, 56; + J. F. Stephen's first greeting to, 67 + + 'Wilberforce's Walk,' 23 + + Willes, Mr. Justice, 140, 173 211, 212 + + Williams, Mr., publisher of Paine's 'Age of Reason,' his trial, 84 + + Williams, Sir Monier, and native testimony regarding our rule in + India, 270 + + Williams, Mr. Montagu, 439 + + Williams, Dr. Rowland, his trial, 175, 184; + fitness of J. F. Stephen to defend, 184, 185; + his speech and line of defence, 185, 186; + result of the trial, 186, 187; + conduct of the case, 383; + Work on, 483 + + Wills, Mr. Justice, his reminiscences of Sir J. F. Stephen, 140-144 + + Wilson, Mr. H. F., 469_n_ + + Winchester College, Mr. R. Lowe on, 80 + + Wolfe, 'Burial of Sir John Moore,' the, 68 + + Wordsworth, his Poems, 40, 68 + + + Xavier, St. Francis, Sir J. Stephen on, 56, 57 + + + Yeaman, Mr., opposes Sir J. F. Stephen at Dundee, 344, 349 + + Young, Sir Charles, late Secretary English Church Union, 382 + + Young's 'Night Thoughts,' Master Stephen's early acquaintance with, 9 + + + + + _Spottiswooode & Co. Printers, New-street Square, London._ + + + + + * * * * * + + + + +Transcriber's note: + + +The following changes have been made to the text: + +In the index entry for "Lady Egerton" page 405 was changed to 404. + +In the index entry for "Stephen, Sir James Fitzjames—_Judicial +Career_: bibliography of his works and essays," "483-485" was changed to +"483-486". + +Page 50: "try ot teach" changed to "try to teach". + +Page 50: Added missing footnote anchor for footnote 41. + +Page 119: "conected with some" changed to "connected with some". + +Page 148: "uch as 200,000" changed to "much as 200,000." + +Page 195: "with with Fitzjames" changed to "with Fitzjames". + +Page 229: "1865, the trial of Nelson and Brand" changed to "1867, the +trial of Nelson and Brand". + +Page 315: "intelligble principles" changed to "intelligible principles". + +Page 330: "partly from comtempt" changed to "partly from contempt". + +Page 394: "expreses very scanty" changed to "expresses very scanty". + +Page 488: "Editor of th 'Times" changed to "Editor of the 'Times". + +Page 496: "Robespierre, Sir J. F. Stephen s" changed to "Robespierre, +Sir J. F. Stephen's. + +Page 498" "anti-slavery crusude" changed to "anti-slavery crusade". + +Page 499: "visit to the Beaumonts" changed to "visit to the Beamonts". + + + +***END OF THE PROJECT GUTENBERG EBOOK THE LIFE OF SIR JAMES FITZJAMES +STEPHEN, BART., K.C.S.I.*** + + +******* This file should be named 28980-8.txt or 28980-8.zip ******* + + +This and all associated files of various formats will be found in: +http://www.gutenberg.org/dirs/2/8/9/8/28980 + + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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