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 formulae 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 formulae 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, ’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. 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.’ 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 Aeschylus. 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. 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.’ 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.

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 aesthetes 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,’ 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.’

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’ 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. 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, 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.

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

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

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

I might say, if I wished to be paradoxical, that this doctrine seems strange precisely because it is so common. It is what most people who think at all believe, but what nobody likes to avow. We have become so accustomed to the assertion that it is a duty for the ignorant to hold with unequivocal faith doctrines which are notoriously the very centres of philosophical doubt, that it is hard to believe that a man can regard them as at once important and incapable of strict proof. Fitzjames naturally appears to the orthodox as an unbeliever, because he admits the doubt. He replies to one such charge that the ’broad general doctrines, which are the only consolation in death and the only solid sanction of morality, never have been, and, please God, never shall be, treated in these columns in any other spirit than that of profound reverence and faith.’ 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.’

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. 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.’ 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 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.’ 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. 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. 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.’ 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.’

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 ‘réfutations’ were on both sides courteous and even friendly. 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. 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 Fitzjames had attempted to define what he meant by liberalism. It meant, he said, hostility to antiquated and narrow-minded institutions. It ought also to mean ’generous and high-minded sentiments upon political subjects guided by a highly instructed, large-minded and impartial intellect, briefly the opposite of sordidness, vulgarity, and bigotry.’ The party technically called Liberal were about to admit a larger popular element to a share of political power. The result would be good or bad as the new rulers acted or did not act in the spirit properly called Liberal. Unluckily the flattery of the working-man has come into fashion; we ignore his necessary limitations, and we deify the ‘casual opinions and ineffectual public sentiments’ of the half-educated. ’The great characteristic danger of our days is the growth of a quiet, ignoble littleness of character and spirit.’ We should aim, therefore, at impressing our new masters ’with a lofty notion not merely of the splendour of the history of their country, but of the part which it has to play in the world, and of the spirit in which it should be played.’ He gives as an example a topic to which he constantly turns. The ‘whole fabric’ of the Indian Empire, he says, is a monument of energy, ’skill and courage, and, on the whole, of justice and energy, such as the world never saw before.’ How are we to deal with that great inheritance bequeathed to us by the courage of heroes and the wisdom of statesmen? India is but one instance. There is hardly an institution in the country which may not be renewed if we catch the spirit which presided over its formation. Liberals have now to be authors instead of critics, and their solution of such problems will decide whether their success is to be a curse or a blessing.

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

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

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

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. 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. 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 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.