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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&mdash;_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".