Read CHAPTER V - LAST YEARS AT THE BAR of The Life of Sir James Fitzjames Stephen‚ Bart.‚ K.C.S.I., free online book, by Leslie Stephen, on ReadCentral.com.

I. FIRST OCCUPATIONS IN ENGLAND

Fitzjames had passed the winter of 1871-2 in Calcutta with Henry Cunningham; his wife having returned to England in November. He followed her in the spring, sailing from Bombay on April 22, 1872. To most people a voyage following two years and a half of unremitting labour would have been an occasion for a holiday. With him, however, to end one task was the same thing as to begin another, and he was taking up various bits of work before India was well out of sight. He had laid in a supply of literature suitable both for instruction and amusement. The day after leaving Bombay he got through the best part of a volume of Sainte-Beuve. He had also brought a ‘Faust’ and Auerbach’s ‘Auf der Hoehe,’ as he was anxious to improve himself in German, and he filled up odd spaces of time with the help of an Italian grammar. He was writing long letters to friends in India, although letter-writing in the other direction would be a waste of time. With this provision for employment he found that the time which remained might be adequately filled by a return to his beloved journalism. He proposes at starting to write an article a day till he gets to Suez. He was a little put out for the first twenty-four hours because in the place which he had selected for writing his iron chair was too near the ship’s compasses. He got a safe position assigned to him before long and immediately set to work. He takes his first text from the May meetings for an article which will give everybody some of his reflections upon missionaries in India. Our true position in India, he thinks, is that of teachers, if only we knew what to teach. Hitherto we have not got beyond an emphatic assertion of the necessity of law and order. He writes his article while the decks are being washed, and afterwards writes a ‘bit of a letter,’ takes his German and Italian lessons, and then turns to his travelling library. This included Mill’s ‘Utilitarianism’ and ‘Liberty’; which presently provide him with material not only for reflection, but for exposition. On April 27 he reports that he has been ’firing broadsides into John Mill for about three hours.’ He is a little distracted by the heat, and by talks with some of his fellow-travellers; but as he goes up the Red Sea he is again assailing Mill. It has now occurred to him that the criticisms may be formed into a series of letters to the ’Pall Mall Gazette,’ which will enable him to express a good many of his favourite doctrines. ‘It is curious,’ he says, ’that after being, so to speak, a devoted disciple and partisan (of Mill) up to a certain point I should have found it impossible to go on with him. His politics and morals are not mine at all, though I believe in and admire his logic and his general notions of philosophy.’

He reached Suez on May 5, and on the way home resolved at last to knock off work and have a little time for reflection on the past and the future. India, he says, has been ‘a sort of second University course’ to him. ’There is hardly any subject on which it has not given me a whole crowd of new ideas, which I hope to put into shape,’ and communicate to the world. On May 12 he reached Paris, where he met his wife; and on the 14th was again in England, rejoicing in a cordial reception from his family and his old friends. The same evening he sees his cousin Mrs. Russell Gurney and her husband; and his uncle and aunt, John and Emelia Venn. Froude met him next day in the pleasantest way, and Maine and he, as he reports, were ‘like two schoolboys.’ On the 15th he went to his chambers and called upon Greenwood at the ‘Pall Mall Gazette’ office. He had written an article on the way from Paris which duly appeared in next day’s paper. Not long after his return he attended a dinner of his old Cambridge club, with Maine in the chair. In proposing Maine’s health he suggested that the legislation passed in India during the rule of his friend and himself should henceforth be called the ’Acts of the Apostles.’

One of the greatest pleasures upon reaching home was to find that his mother showed less marks of increasing infirmity than he had expected from the accounts in letters. She was still in full possession of her intellectual powers, and though less able than of old to move about, was fully capable of appreciating the delight of welcoming back the son who had filled so much of her thoughts. I may here note that Fitzjames’s happiness in reviving the old bonds of filial affection was before long to be clouded. His uncle, Henry Venn, died on January 13, 1873, and he writes on the 30th: ’somehow his life was so bold, so complete, and so successful, that I did not feel the least as if his death was a thing to be sad about,’ sad as he confesses it to be in general to see the passing away of the older generation. ‘My dear mother,’ he adds, ’is getting visibly weaker, and it cannot now be a very long time before she goes too. It is a thought which makes me feel very sad at times, but no one ever had either a happier life or a more cheerful and gallant spirit. She does not care to have us to dinner now; but we all see her continually; I go perhaps every other day, and Mary nearly every day.’

His mother was to survive two years longer. Her strong constitution and the loving care of the daughter who lived with her supported her beyond the anticipation of her doctors. There are constant references to her state in my brother’s letters. The old serenity remained unchanged to the last. She suffered no pain and was never made querulous by her infirmities. Slowly and gradually she seemed to pass into a world of dreams as the decay of her physical powers made the actual world more indistinct and shadowy. The only real subject for regret was the strain imposed upon the daughter who was tenderly nursing her, and doing what could be done to soothe her passage through the last troubles she was to suffer. It was as impossible to wish that things should be otherwise as not to feel the profound pathos of the gentle close to long years of a most gentle and beautiful life. Fitzjames felt what such a son should feel for such a mother. It would be idle to try to put into explicit words that under-current of melancholy and not the less elevating thought which saddened and softened the minds of all her children. Her children must be taken to include some who were children not by blood but by reverent affection. She died peacefully and painlessly on February 27, 1875. She was buried by the side of her husband and of two little grandchildren, Fitzjames’s infant daughter and son, who had died before her.

I now turn to the work in which Fitzjames was absorbed almost immediately after his return to England. He had again to take up his profession. He was full of accumulated reflections made in India, which he had not been able to discharge through the accustomed channel of journalism during his tenure of office; and besides this he entertained hopes, rather than any confident belief, that he would be able to induce English statesmen to carry on in their own country the work of codification, upon which he had been so energetically labouring in India. Before his departure he had already been well known to many distinguished contemporaries. But he came home with a decidedly higher reputation. In the natural course of things, many of his contemporaries had advanced in their different careers, and were becoming arbiters and distributors of reputation. His Indian career had demonstrated his possession of remarkable energy, capable of being applied to higher functions than the composition of countless leading articles. He was henceforward one of the circle not distinguished by any definite label but yet recognised among each other by a spontaneous freemasonry which forms the higher intellectual stratum of London society; and is recruited from all who have made a mark in any department of serious work. He was well known, of course, to the leaders of the legal profession; and to many members of Government and to rising members of Parliament, where his old rival Sir W. Harcourt was now coming to the front. He knew the chief literary celebrities, and was especially intimate with Carlyle and Froude, whom he often joined in Sunday ‘constitutionals.’ His position was recognised by the pleasant compliment of an election to the ‘Athenaeum’ ‘under Rule II.,’ which took place at the first election after his return (1873). He had just before (November 1872) been appointed counsel to the University of Cambridge. Before long he had resumed his place at the bar. His first appearance was at the Old Bailey in June 1872, where he ’prosecuted a couple of rogues for Government.’ He had not been there since he had held his first brief at the same place eighteen years before, and spent his guinea upon the purchase of a wedding ring. He was amused to find himself after his dignified position in India regarded as a rather ‘promising young man’ who might in time be capable of managing an important case. The judge, he says, ‘snubbed’ him for some supposed irregularity in his examination of a witness, and did not betray the slightest consciousness that the offender had just composed a code of evidence for an empire. He went on circuit in July, and at Warwick found himself in his old lodgings, writing with his old pen, holding almost the same brief as he had held three years before, before the same judge, listening to the same church bells, and taking the walk to Kenilworth Castle which he had taken with Grant Duff in 1854. Although the circuit appears to have been unproductive, business looked ’pretty smiling in various directions.’ John Duke Coleridge, afterwards Lord Chief Justice, was at this time Attorney-General. Fitzjames differed from him both in opinions and temperament, and could not refrain from an occasional smile at the trick of rather ostentatious self-depreciation which Coleridge seemed to have inherited from his great-uncle. There was, however, a really friendly feeling between them both now and afterwards; and Coleridge was at this time very serviceable. He is ’behaving like a good fellow,’ reports Fitzjames July 5, and is ’sending Government briefs which pay very well.’ By the end of the year Fitzjames reports ’a very fair sprinkling of good business.’ All his old clients have come back, and some new ones have presented themselves. There were even before this time some rumours of a possible elevation to the bench; but apparently without much solid foundation. Meanwhile, he was also looking forward to employment in the direction of codification. He had offered, when leaving India, to draw another codifying bill (upon ‘Torts’) for his successor Hobhouse. This apparently came to nothing; but there were chances at home. ‘I have considerable hopes,’ he says (June 19, 1872), ‘of getting set to work again after the manner of Simla or Calcutta.’ There is work enough to be done in England to last for many lives; and the Government may perhaps take his advice as to the proper mode of putting it in hand. He was soon actually at work upon two bills, which gave him both labour and worry before he had done with them. One of these was a bill upon homicide, which he undertook in combination with Russell Gurney, then recorder of London. The desirability of such a bill had been suggested to Gurney by John Bright, in consequence of a recent commission upon Capital Punishment. Gurney began to prepare the work, but was glad to accept the help of Fitzjames, whose labours had made him so familiar with the subject. Substantially he had to adapt part of the Penal Code, which he must have known by heart, and he finished the work rapidly. He sent a copy of the bill to Henry Cunningham on August 15, 1872, when it had already been introduced into Parliament by R. Gurney and read a first time. He sees, however, no chance of getting it seriously discussed for the present. One reason is suggested in the same letter. England is a ‘centre of indifference’ between the two poles, India and the United States. At each pole you get a system vigorously administered and carried to logical results. ’In the centre you get the queerest conceivable hubblebubble, half energy and half impotence, and all scepticism in a great variety of forms.’ The homicide bill was delayed by Russell Gurney’s departure for America on an important mission in the following winter, but was not yet dead. One absurd little anecdote in regard to it belongs to this time. Fitzjames had gone to stay with Froude in a remote corner of Wales; and wishing to refer to the draft, telegraphed to the Recorder of London: ‘Send Homicide Bill.’ The official to whom this message had to be sent at some distance from the house declined to receive it. If not a coarse practical joke, he thought it was a request to forward into that peaceful region a wretch whose nickname was too clearly significant of his bloodthirsty propensities.

Fitzjames mentions in the same letter to Cunningham that he has just finished the ‘introduction’ to his Indian Evidence Act. This subject brought him further occupation. He had more or less succeeded in making a convert of Coleridge. ’If this business with Coleridge turns out right,’ he says (October 2), ’I shall have come home in the very nick of time, for there is obviously going to be a chance in the way of codification which there has not been these forty years, and which may never occur again.’ Had he remained in India, he might have found the new viceroy less favourable to his schemes than Lord Mayo had been, and would have at any rate missed the chance of impressing the English Government at the right time. On November 29 he writes again to Cunningham, and expresses his disgust at English methods of dealing with legislation. He admits that ’too much association with old Carlyle, with whom I walk most Sundays,’ may have made him ‘increasingly gloomy.’ But ’everything is so loose, so jarring, there is such an utter want of organisation and government in everything, that I feel sure we shall have a great smash some day.’ A distinguished official has told him and he fully believes it that the Admiralty and the War Office would break down under a week’s hard pressure. He observes in one article of the time that his father had made the same prophecy before 1847. He often quotes his father for the saying, ‘I am a ministerialist.’ Men in office generally try to do their best, whatever their party. But men in opposition aim chiefly at thwarting all action, good or bad, and a parliamentary system gives the advantage to obstruction. Part of his vexation, he admits, is due to his disgust at the treatment of the codification question. Coleridge, it appears, had proposed to him ‘months ago’ that he should be employed in preparing an Evidence Bill. Difficulties had arisen with Lowe, the Chancellor of the Exchequer, as to the proper fee. Fitzjames was only anxious now to get the thing definitively settled on any terms and put down in black and white. The Government might go out at any moment, and without some agreement he would be left in the lurch. It was ’excessively mortifying, ... and showed what a ramshackle concern our whole system’ was. Definite instructions, however, to prepare the bill were soon afterwards given. On December 20 he writes that the English Evidence Bill is getting on famously. He hopes to have it all ready before Parliament meets, and it may probably be read a second time, though hardly passed this year. It was in fact finished, as one of his letters shows, by February 7, 1873.

II. ‘LIBERTY, EQUALITY, FRATERNITY’

Meanwhile, however, he had been putting much energy into another task. He had for some time delivered his tale of articles to the ’Pall Mall Gazette’ as of old. He was soon to become tired of anonymous journalism; but he now produced a kind of general declaration of principles which, though the authorship was no secret and was soon openly acknowledged, appeared in the old form, and, as it turned out, was his last work of importance in that department. It was in some ways the most characteristic of all his writings. He put together and passed through the ‘Pall Mall Gazette’ during the last months of 1872 and January 1873 the series of articles already begun during his voyage. They were collected and published with his name in the following spring as ‘Liberty, Equality, Fraternity.’ I confess that I wondered a little at the time that the editor of a newspaper should be willing to fill his columns with so elaborate a discourse upon first principles; and I imagine that editors of the present day would be still more determined to think twice before they allowed such latitude even to the most favoured contributor. I do not doubt, however, that Mr. Greenwood judged rightly. The letters were written with as much force and spirit as anything that Fitzjames ever produced. I cannot say how they affected the paper, but the blows told as such things tell. They roused the anger of some, the sympathy of others, and the admiration of all who liked to see hard hitting on any side of a great question. The letters formed a kind of ‘Apologia’ or a manifesto the expression, as he frequently said, of his very deepest convictions. I shall therefore dwell upon them at some length, because he had never again the opportunity of stating his doctrines so completely. Those doctrines are far from popular, nor do I personally agree with them. They are, however, characteristic not merely of Fitzjames himself, but of some of the contemporary phases of opinion. I shall therefore say something of their relation to other speculations; although for my purpose the primary interest is the implied autobiography.

The book was perhaps a little injured by the conditions under which it was published. A series of letters in a newspaper, even though, as in this case, thought out some time beforehand, does not lend itself easily to the development of a systematic piece of reasoning. The writer is tempted to emphasise unduly the parts of his argument which are congenial to the journalistic mode of treatment. It is hard to break up an argument into fragments, intended for separate appearance, without somewhat dislocating the general logical framework. The difficulty was increased by the form of the argument. In controverting another man’s book, you have to follow the order of his ideas instead of that in which your own are most easily expounded. Fitzjames, indeed, gives a reason for this course. He accepts Mill’s ‘Liberty’ as the best exposition of the popular view. Acknowledging his great indebtedness to Mill, he observes that it is necessary to take some definite statement for a starting point; and that it is ’natural to take the ablest, the most reasonable, and the clearest.’ Mill, too, he says, is the only living author with whom he ‘agrees sufficiently to argue with him profitably.’ He holds that the doctrines of Mill’s later books were really inconsistent with the doctrines of the ‘Logic’ and ‘Political Economy.’ He is therefore virtually appealing from the new Utilitarians to the old. ‘I am falling foul,’ he says in a letter, ’of John Mill in his modern and more humane mood or, rather, I should say, in his sentimental mood which always makes me feel that he is a deserter from the proper principles of rigidity and ferocity in which he was brought up.’ Fitzjames was thus writing as an orthodox adherent of the earlier school. He had sat at the feet of Bentham and Austin, and had found the most congenial philosophy in Hobbes. And yet his utilitarianism was mingled with another strain; and one difficulty for his readers is precisely that his attack seems to combine two lines of argument not obviously harmonious. Still, I think that his main position is abundantly clear.

Fitzjames as all that I have written may go to prove was at once a Puritan and a Utilitarian. His strongest sympathies and antipathies were those which had grown up in the atmosphere of the old evangelical circle. On this side, too, he had many sympathies with the teaching of Carlyle, himself a spiritual descendant of the old Covenanters. But his intellect, as I have also remarked, unlike Carlyle’s, was of the thoroughly utilitarian type. Respect for hard fact, contempt for the mystical and the dreamy; resolute defiance of the a priori school who propose to override experience by calling their prejudices intuitions, were the qualities of mind which led him to sympathise so unreservedly with Bentham’s legislative theories and with Mill’s ‘Logic.’ Let us, before all things, be sure that our feet are planted on the solid earth and our reason guided by verifiable experience. All his studies, his legal speculations, and his application of them to practice, had strengthened and confirmed these tendencies. How were they to be combined with his earlier prepossessions?

The alliance of Puritan with utilitarian is not in itself strange or unusual. Dissenters and freethinkers have found themselves side by side in many struggles. They were allied in the attack upon slavery, in the advocacy of educational reforms, and in many philanthropic movements of the early part of this century. James Mill and Francis Place, for example, were regarded as atheists, and were yet adopted as close philanthropic allies by Zachary Macaulay and by the quaker William Allen. A common antipathy to sacerdotalism brought the two parties together in some directions, and the Protestant theory of the right of private judgment was in substance a narrower version of the rationalist demand for freedom of thought. Protestantism in one aspect is simply rationalism still running about with the shell on its head. This gives no doubt one secret of the decay of the evangelical party. The Protestant demand for a rational basis of faith widened among men of any intellectual force into an inquiry about the authority of the Bible or of Christianity. Fitzjames had moved, reluctantly and almost in spite of himself, very far from the creed of his fathers. He could not take things for granted or suppress doubts by ingenious subterfuges. And yet, he was so thoroughly imbued with the old spirit that he could not go over completely to its antagonists. To destroy the old faith was still for him to destroy the great impulse to a noble life. He held in some shape to the value of his creed, even though he felt logically bound to introduce a ‘perhaps.’

This, however, hardly gives the key to his first difference with the utilitarians, though it greatly affects his conclusions. He called himself, as I have said, a Liberal; but there were, according to him, two classes of Liberals, the intellectual Liberals, whom he identified with the old utilitarians, and the Liberals who are generally described as the Manchester school. Which of those was to be the school of the future, and which represented the true utilitarian tradition? Here I must just notice a fact which is not always recognised. The utilitarians are identified by most people with the (so-called) Manchester doctrines. They are regarded as advocates of individualism and the laissez-faire or, as I should prefer to call it, the let-alone principle. There was no doubt a close connection, speaking historically; but a qualification must be made in a logical sense, which is very important for my purpose. The tendency which Fitzjames attacked as especially identified with Mill’s teaching the tendency, namely, to restrict the legitimate sphere of government is far from being specially utilitarian. It belonged more properly to the adherents of the ‘rights of man,’ or the believers in abstract reason. It is to be found in Price and Paine, and in the French declaration of the rights of man; and Mr. Herbert Spencer, its chief advocate (in a new form) at the present day remarks himself that he was partly anticipated by Kant. Bentham expressly repudiated this view in his vigorous attack upon the ‘anarchical fallacies’ embodied in the French declaration. In certain ways, moreover, Bentham and his disciples were in favour of a very vigorous Government action. Bentham invented his Panopticon as a machine for ‘grinding rogues honest,’ and proposed to pass paupers in general through the same mill. His constitutional code supposes a sort of omnipresent system of government, and suggests a national system of education and even a national church with a very diluted creed. As thorough-going empiricists, the utilitarians were bound to hold, and did, in fact, generally declare themselves to hold, not that Government interference was wrong in general, but simply that there was no general principle upon the subject. Each particular case must be judged by its own merits.

Historically speaking, the case was different. The political economy of Ricardo and the Mills was undoubtedly what is now called thoroughly ‘individualistic.’ Its adherents looked with suspicion at everything savouring of Government action. This is in part one illustration of the general truth that philosophies of all kinds are much less the real source of principles than the theories evoked to justify principles. Their course is determined not by pure logic alone, but by the accidents of contemporary politics. The revolutionary movement meant that governments in general were, for the time, the natural enemies of ‘reason.’ Philosophers who upon any ground sympathised with the movement took for their watchword ‘liberty,’ which, understood absolutely, is the antithesis to all authority. They then sought to deduce the doctrine of liberty from their own philosophy, whatever that might be. The a priori school discovered that kings and priests and nobles interfered with a supposed ‘order of nature,’ or with the abstract ‘rights of man.’ The utilitarian’s argument was that all government implies coercion; that coercion implies pain; and therefore that all government implies an evil which ought to be minimised. They admitted that, though ‘minimised,’ it should not be annihilated. Bentham had protested very forcibly that the ‘rights of man’ doctrine meant anarchy logically, and asserted that government was necessary, although a necessary evil. But the general tendency of his followers was to lay more stress upon the evil than upon the necessity. The doctrine was expounded with remarkable literary power by Buckle, who saw in all history a conflict between protection and authority on the one hand and liberty and scepticism on the other.

J. S. Mill had begun as an unflinching advocate of the stern old utilitarianism of his father and Ricardo. He had become, as Fitzjames observes, ‘humane’ or ‘sentimental’ in later years. He tried, as his critics observe, to soften the old economic doctrines and showed a certain leaning to socialism. In regard to this part of his teaching, in which Fitzjames took little interest, I shall only notice that, whatever his concessions, he was still in principle an ‘individualist.’ He maintained against the Socialists the advantages of competition; and though his theory of the ‘unearned increment’ looks towards the socialist view of nationalisation of the land, he seems to have been always in favour of peasant proprietorship, and of co-operation as distinguished from State socialism. Individualism, in fact, in one of its senses, for like other popular phrases it tends to gather various shades of meaning, was really the characteristic of the utilitarian school. Thus in philosophy they were ‘nominalists,’ believing that the ultimate realities are separate things, and that abstract words are mere signs calling up arbitrary groups of things. Politically, they are inclined to regard society as an ‘aggregate,’ instead of an ‘organism.’ The ultimate units are the individual men, and a nation or a church a mere name for a multitude combined by some external pressure into a collective mass of separate atoms. This is the foundation of Mill’s political theories, and explains the real congeniality of the let-alone doctrines to his philosophy. It gives, too, the key-note of the book upon ‘Liberty,’ which Fitzjames took for his point of assault. Mill had been profoundly impressed by Tocqueville, and, indeed, by an order of reflections common to many intelligent observers. What are to be the relations between democracy and intellectual culture? Many distinguished writers have expressed their forebodings as to the future. Society is in danger of being vulgarised. We are to be ground down to uniform and insignificant atoms by the social mill. The utilitarians had helped the lower classes to wrest the scourge from the hands of their oppressors. Now the oppressed had the scourge in their own hands; how would they apply it? Coercion looked very ugly in the hands of a small privileged class; but when coercion could be applied by the masses would they see the ugliness of it? Would they not use the same machinery in order to crush the rich and the exalted, and take in the next place to crushing each other? Shall we not have a dead level of commonplace and suffer, to use the popular phrase, from a ‘tyranny of the majority,’ more universal and more degrading than the old tyranny of the minority? This was the danger upon which Mill dwelt in his later works. In his ‘Liberty’ he suggests the remedy. It is nothing less than the recognition of a new moral principle. Mankind, he said, individually or collectively, are justified in interference with others only by the need of ‘self-protection.’ We may rightfully prevent a man from hurting his neighbour, but not from hurting himself. If we carefully observe this precaution the individual will have room to expand, and we shall cease to denounce all deviations from the common type.

Here Fitzjames was in partial sympathy with his antagonist. He reviewed ‘Liberty’ in the ‘Saturday Review’ upon its first appearance; and although making certain reservations, reviewed it with warm approbation. Mill and he were agreed upon one point. A great evil, perhaps the one great evil of the day, as Fitzjames constantly said, is the prevalence of a narrow and mean type of character; the decay of energy; the excessive devotion to a petty ideal of personal comfort; and the systematic attempt to turn our eyes away from the dark side of the world. A smug, placid, contemptible optimism is creeping like a blight over the face of society, and suppressing all the grander aspirations of more energetic times. But in proportion to Fitzjames’s general agreement upon the nature of the evil was the vehemence of his dissent from the suggested remedy. He thought that, so far from meeting the evil, it tended directly to increase it. To diminish the strength of the social bond would be to enervate not to invigorate society. If Mill’s principles could be adopted, everything that has stimulated men to pursue great ends would lose its interest, and we should become a more contemptible set of creatures than we are already.

I have tried to show how these convictions had been strengthened by circumstances. Fitzjames’s strong patriotic feeling, his pride in the British race and the British empire, generated a special antipathy to the school which, as he thought, took a purely commercial view of politics; which regarded the empire as a heavy burthen, because it did not pay its expenses, and which looked forward to a millennium of small shopkeepers bothered by no taxes or tariffs. During the ’Pall Mall Gazette’ period he had seen such views spreading among the class newly entrusted with power. Statesmen, in spite of a few perfunctory attempts at better things, were mainly engaged in paltry intrigues, and in fishing for votes by flattering fools. The only question was whether the demagogues who were their own dupes were better or worse than the demagogues who knew themselves to be humbugs. Carlyle’s denunciations of the imbecility of our system began to be more congenial to his temper, and encouraged him in his heresy. Carlyle’s teachings were connected with erroneous theories indeed, and too little guided by practical experience. But the general temper which they showed, the contempt for slovenly, haphazard, hand-to-mouth modes of legislation, the love of vigorous administration on broad, intelligible principles, entirely expressed his own feeling. Finally, in India he had, as he thought, found his ideal realised. There, with whatever shortcomings, there was at least a strong Government; rulers who ruled; capable of doing business; of acting systematically upon their convictions; strenuously employed in working out an effective system; and not trammelled by trimming their sails to catch every temporary gust of sentiment in a half-educated community. His book, he often said, was thus virtually a consideration of the commonplaces of British politics in the light of his Indian experience. He wished, he says in one of his letters, to write about India; but as soon as he began he felt that he would be challenged to give his views upon these preliminary problems: What do you think of liberty, of toleration, of ruling by military force, and so forth? He resolved, therefore, to answer these questions by themselves.

I must add that this feeling was coloured by Fitzjames’s personal qualities. He could never, as I have pointed out, like Mill himself; he pronounced him to be ‘cold as ice,’ a mere ‘walking book,’ and a man whose reasoning powers were out of all proportion to his ’seeing powers.’ If I were writing about Mill I should think it necessary to qualify this judgment of a man who might also be described as sensitive to excess, and who had an even feminine tenderness. But from Fitzjames’s point of view the judgment was natural enough. The two men could never come into cordial relations, and the ultimate reason, I think, was what I should call Mill’s want of virility. He might be called ‘cold,’ not as wanting in tenderness or enthusiasm, but as representing a kind of philosophical asceticism. Whether from his early education, his recluse life, or his innate temperament, half the feelings which moved mankind seemed to him simply coarse and brutal. They were altogether detestable not the perversions which, after all, might show a masculine and powerful nature. Mill’s view, for example, seemed to be that all the differences between the sexes were accidental, and that women could be turned into men by trifling changes in the law. To a man of ordinary flesh and blood, who had grounded his opinions, not upon books, but upon actual experience of life, such doctrines appear to be not only erroneous, but indicative of a hopeless thinness of character. And so, again, Fitzjames absolutely refused to test the value of the great patriotic passions which are the mainsprings of history by the mere calculus of abstract concepts which satisfied Mill. Fitzjames, like Henry VIII., ‘loved a man,’ and the man of Mill’s speculations seemed to be a colourless, flaccid creature, who required, before all things, to have some red blood infused into his veins.

Utilitarianism of the pedantic kind the utilitarianism which substitutes mere lay figures for men and women or the utilitarianism which refuses to estimate anything that cannot be entered in a ledger, was thus altogether abhorrent to Fitzjames. And yet he was, in his way, a utilitarian in principle; and his reply to Mill must be given in terms of utilitarianism. To do that, it was only necessary to revert to the original principles of the sect, and to study Austin and Bentham with a proper infusion of Hobbes. Then it would be possible to construct a creed which, whatever else might be said of it, was not wanting in vigour or in danger of substituting abstractions for concrete realities. I shall try to indicate the leading points of this doctrine without following the order partly imposed upon Fitzjames by his controversial requirements. Nor shall I inquire into a question not always quite clear, namely, whether his interpretation of Mill’s principles was altogether correct.

One fundamental ground is common to Fitzjames and his antagonist. It is assumed in Austin’s analysis of ‘law,’ which is accepted by both. Law properly means a command enforced by a ‘sanction.’ The command is given by a ‘sovereign,’ who has power to reward or punish, and is made effectual by annexing consequences, painful or pleasurable, to given lines of conduct. The law says, ‘Thou shalt not commit murder’; and ‘shalt not’ means ‘if you commit murder you shall be hanged.’ Nothing can be simpler or more obviously in accordance with common sense. Abolish the gaoler and the hangman and your criminal law becomes empty words. Moreover, the congeniality of this statement to the individualist point of view is obvious. Consider men as a multitude of independent units, and the problem occurs, How can they be bound into wholes? What must be the principle of cohesion? Obviously some motive must be supplied which will operate upon all men alike. Practically that means a threat in the last resort of physical punishment. The bond, then, which keeps us together in any tolerable order is ultimately the fear of force. Resist, and you will be crushed. The existence, therefore, of such a sanction is essential to every society; or, as it may be otherwise phrased, society depends upon coercion.

This, moreover, applies in all spheres of action. Morality and religion ’are and always must be essentially coercive systems.’ They restrain passion and restrain it by appealing to men’s hopes and fears chiefly to their fears. For one man restrained by the fear of the criminal law, a vast number are restrained by the ’fear of the disapprobation of their neighbours, which is the moral sanction, or by the fear of punishment in a future state of existence, which is the religious sanction, or by the fear of their own disapprobation, which may be called the conscientious sanction, and may be regarded as a compound case of the other ’two.’ An objection, therefore, to coercion would be an objection to all the bonds which make association possible; it would dissolve equally states, churches, and families, and make even the peaceful intercourse of individuals impossible. In point of fact, coercion has built up all the great churches and nations. Religions have spread partly by military power, partly by ’threats as to a future state,’ and always by the conquest of a small number of ardent believers over the indifferent mass. Men’s lives are regulated by customs as streams are guided by dams and embankments. The customs like the dams are essentially restraints, and moreover restraints imposed by a small numerical minority, though they ultimately become so familiar to the majority that the restraint is not felt. All nations have been built up by war, that is, by coercion in its sternest form. The American civil war was the last and most striking example. It could not ultimately be settled by conveyancing subtleties about the interpretation of clauses in the Constitution, but by the strong hand and the most energetic faith. War has determined whether nations are to be and what they are to be. It decides what men shall believe and in what mould their religion, laws, morals, and the whole tone of their lives shall be cast.

Nor does coercion disappear with the growth of civilisation. It is not abolished but transformed. Lincoln and Moltke commanded a force which would have crushed Charlemagne and his paladins and peers like so many eggshells. Scott, in the ‘Fair Maid of Perth,’ describes the ‘Devil’s Dick of Hellgarth’ who followed the laird of Wamphray, who rode with the lord of Johnstone, who was banded with the Earl of Douglas, and earl, and lord, and laird, and the ‘Devil’s Dick’ rode where they pleased and took what they chose. Does that imply that Scotland was then subject to force, and that now force has disappeared?

No; it means that the force that now stands behind a simple policeman is to the force of Douglas and his followers as the force of a line of battle ship to the force of an individual prize-fighter. It works quietly precisely because it is overwhelming. Force therefore underlies and permeates every human institution. To speak of liberty taken absolutely as good is to condemn all social bonds. The only real question is in what cases liberty is good, and how far it is good. Buckle’s denunciation of the ‘spirit of protection’ is like praising the centrifugal and reviling the centripetal force. One party would be condemning the malignity of the force which was dragging us all into the sun, and the other the malignity of the force which was driving us madly into space. The seminal error of modern speculation is shown in this tendency to speak as advocates of one of different forces, all of which are necessary to the harmonious government of conduct.

This insistence upon the absolute necessity of force or coercion, upon the theory that, do what you will, you alter only the distribution, not the general quantity of force, is the leading principle of the book. Compulsion and persuasion go together, but the ‘lion’s share’ of all the results achieved by civilisation is due to compulsion. Parliamentary government is a mild and disguised form of compulsion and reforms are carried ultimately by the belief that the reformers are the strongest. Law in general is nothing but regulated force, and even liberty is from the very nature of things dependent upon power, upon the protection, that is, of a powerful, well-organised intelligent government. Hobbes’s state of war simply threw an unpopular truth ‘into a shape likely to be misunderstood.’ There must be war, or evils worse than war. ’Struggles there must always be unless men stick like limpets or spin like weathercocks.’

Hence we have our problem: liberty is good, not as opposed to coercion in general, but as opposed to coercion in certain cases. What, then, are the cases? Force is always in the background, the invisible bond which corresponds to the moral framework of society. But we have still to consider what limits may be laid down for its application. The general reply of a Utilitarian must of course be an appeal to ‘expediency.’ Force is good, says Fitzjames, following Bentham again, when the end to be attained is good, when the means employed are efficient, and when, finally, the cost of employing them is not excessive. In the opposite cases, force of course is bad. Here he comes into conflict with Mill. For Mill tries to lay down certain general rules which may define the rightful limits of coercive power. Now there is a prima facie ground of suspicion to a sound utilitarian about any general rules. Mill’s rules were of course regarded by himself as based upon experience. But they savoured of that absolute a priori method which professes to deduce principles from abstract logic. Here, therefore, he had, as his opponent thought, been coquetting with the common adversary and seduced into grievous error. A great part of the argument comes to this: Mill advocates rules to which, if regarded as practical indications of certain obvious limitations to the utility of Government interference, Fitzjames has no objection. But when they are regarded as ultimate truths, which may therefore override even the principle of utility itself, they are to be summarily rejected. Thus, as we shall see, the practical differences are often less than appears. It is rather a question of the proper place and sphere of certain rules than of their value in particular cases. Yet at bottom there is also a profound divergence. I will try to indicate the main points at issue.

Mill’s leading tenet has been already stated; the only rightful ground of coercing our neighbours is self-protection. Using the Benthamite terminology, we may say that we ought never to punish self-regarding conduct, or again interpolating the utilitarian meaning of ‘ought’ that such punishment cannot increase the general happiness. Fitzjames complains that Mill never tries to prove this except by adducing particular cases. Any attempt to prove it generally, would, he thinks, exhibit its fallacy. For, in brief, the position would really amount to a complete exclusion of the moral element from all social action. Men influence each other by public opinion and by law. Now if we take public opinion, Mill admits, though he disputes the inference from the admission, that a man must suffer the ’inconveniences strictly inseparable from the unfavourable opinion of others.’ But men are units, not bundles of distinct qualities, some self-regarding, and others ‘extra-regarding.’ Everyone has the strongest interest in the character of everyone else. A man alone in the world would no more be a man than a hand without a body would be a hand. We cannot therefore be indifferent to character because accidentally manifested in ways which do or do not directly and primarily affect others. Drunkenness, for example, may hurt a man’s health or it may make him a brute to his wife or neglectful of his social duties. As moralists we condemn the drunkard, not the results of his conduct, which may be this or that according to circumstances. To regard Mill’s principle as a primary moral axiom is, therefore, contradictory. It nullifies all law, moral or other, so far as it extends. But if Mill’s admission as to the ‘unfavourable opinions’ is meant to obviate this conclusion, his theory merely applies to positive law. In that case it follows that the criminal law must be entirely divorced from morality. We shall punish men not as wicked but as nuisances. To Fitzjames this position was specially repulsive. His interest in the criminal law was precisely that it is an application of morality to conduct. Make it a mere machinery for enabling each man to go his own way, virtuous or vicious, and you exclude precisely the element which constituted its real value. Mill, when confronted with some applications of his theory, labours to show that though we have no right to interfere with ‘self-regarding’ vice, we may find reasons for punishing conspiracies in furtherance of vice. ’I do not think,’ replies Fitzjames, ’that the state ought to stand bandying compliments with pimps.’ It ought not to say that it can somehow find an excuse for calling upon them to desist from ’an experiment in living’ from which it dissents. ’My feeling is that if society gets its grip on the collar of such a fellow, it should say to him, “You dirty fellow, it may be a question whether you should be suffered to remain in your native filth untouched, or whether my opinion should be printed by the lash on your bare back. That question will be determined without the smallest reference to your wishes or feelings, but as to the nature of my opinion about you there can be no doubt."’

Hence the purely ‘deterrent’ theory of punishment is utterly unsatisfactory. We should punish not simply to prevent crime, but to show our hatred of crime. Criminal law is ’in the nature of a persecution of the grosser forms of vice, and an emphatic assertion of the principle that the feeling of hatred and the desire of vengeance above mentioned, (i.e. the emotion, whatever its proper name, produced by the contemplation of vice on healthily constituted minds) ’are important elements in human nature, which ought in such cases to be satisfied in a regular public and legal manner. This is one of the cases in which Fitzjames fully recognises the importance of some of Mill’s practical arguments, though he disputes their position in the theory. The objections to making men moral by legislation are, according to him, sufficiently recognised by the Benthamite criterion condemning inadequate or excessively costly means. The criminal law is necessarily a harsh and rough instrument. To try to regulate the finer relations of life by law, or even by public opinion, is ’like trying to pull an eyelash out of a man’s eye with a pair of tongs: they may pull out the eye, but they will never get hold of the eyelash.’ But it is not the end, but the means that are objectionable. Fitzjames does not object in principle even to sumptuary laws. He can never, he says, look at a lace machine, and think of all the toil and ingenuity wasted, with patience. But he admits that repressive laws would be impossible now, though in a simpler age they may have been useful. Generally, then, the distinction between ‘self-regarding’ and ‘extra-regarding’ conduct is quite relevant, so far as it calls attention to the condition of the probable efficacy of the means at our disposal. But it is quite irrelevant in a definition of the end. The end is to suppress immorality, not to obviate particular inconveniences resulting from immorality; and one great use of the criminal law is that, in spite of its narrow limitations, it supplies a solid framework round which public opinion may consolidate itself. The sovereign is, in brief, a great teacher of the moral law so far as his arm can reach.

The same principles are applied in a part of the book which probably gave more offence than any other to his Liberal opponents. The State cannot be impartial in regard to morals, for morality determines the bonds which hold society together. Can it, then, be indifferent in regard to religions? No; for morality depends upon religion, and the social bond owes its strength to both. The state can be no more an impartial bystander in one case than in the other. The ’free Church in a free State’ represents a temporary compromise, not an ultimate ideal. The difference between Church and State is not a difference of provinces, but a difference of ‘sanctions.’ The spiritual and the secular sanctions apply to the same conduct of the same men. Both claim to rule all life, and are ultimately compelled to answer the fundamental questions. To separate them would be to ‘cut human life in two,’ an attempt ultimately impossible and always degrading. To answer fundamental questions, says Mill, involves a claim to infallibility. No, replies Fitzjames, it is merely a claim to be right in the particular case, and in a case where the responsibility of deciding is inevitably forced upon us. If the state shrinks from such decisions, it will sink to be a mere police, or, more probably, will at last find itself in a position where force will have to decide what the compromise was meant to evade. Once more, therefore, the limits of state action must be drawn by expediency, not by an absolute principle. The Benthamite formula applies again. Is the end good, and are the means adequate and not excessively costly? Mill’s absolute principle would condemn the levy of a shilling for a school, if the ratepayer objected to the religious teaching. Fitzjames’s would, he grants, justify the Inquisition, unless its doctrines could be shown to be false or the means of enforcing them excessive or inadequate issues, he adds, which he would be quite ready to accept. Has, then, a man who believes in God and a future life a moral right to deter others from attacking those doctrines by showing disapproval? Yes, ’if and in so far as his opinions are true.’ To attack opinions on which the framework of society depends is, and ought to be, dangerous. It should be done, if done at all, sword in hand. Otherwise the assailant deserves the fate of the Wanderer in Scott’s ballad:

Curst be the coward that ever he was born
That did not draw the sword before he blew the horn.

Such opinions seem to justify persecution in principle. Fitzjames discusses at some length the case of Pontius Pilate, to which I may notice he had often applied parallels from Ram Singh and other Indian experiences. Pontius Pilate was in a position analogous to that of the governor of a British province. He decides that if Pilate had acted upon Mill’s principles he would have risked ’setting the whole province in a blaze.’ He condemns the Roman persecutors as ‘clumsy and brutal’; but thinks that they might have succeeded ’in the same miserable sense in which the Spanish Inquisition succeeded,’ had they been more systematic, and then would at least not have been self-stultified. Had the Roman Government seen the importance of the question, the strife, if inevitable, might have been noble. It would have been a case of ’generous opponents each working his way to the truth from opposite sides,’ not the case of a ’touching though slightly hysterical victim, mauled from time to time by a sleepy tyrant in his intervals of fury.’ Still, it will be said, there would have been persecution. I believe that there was no man living who had a more intense aversion than Fitzjames to all oppression of the weak, and, above all, to religious oppression. It is oddly characteristic that his main precedent is drawn from our interference with Indian creeds. We had enforced peace between rival sects; allowed conversion; set up schools teaching sciences inconsistent with Hindoo (and with Christian?) theology; protected missionaries and put down suttee and human sacrifices. In the main, therefore, we had shown ‘intolerance’ by introducing toleration. Fitzjames had been himself accused, on the occasion of his Native Marriages Bill, with acting upon principles of liberty, fraternity, and equality. His point, indeed, is that a government, even nervously anxious to avoid proselytism, had been compelled to a upon doctrines inconsistent with the religions of its subjects. I will not try to work out this little logical puzzle. In fact, in any case, he would really have agreed with Mill, as he admits, in regard to every actual question of the day. He admitted that the liberal contention had been perfectly right under the special circumstances. Their arguments were quite right so long as they took the lower ground of expediency, though wrong when elevated to the position of ultimate principles, overruling arguments from expediency. Toleration, he thinks, is in its right place as softening and moderating an inevitable conflict. The true ground for moral tolerance is that ‘most people have no right to any opinion whatever upon these subjects,’ and he thinks that ‘the ignorant preacher’ who ’calls his betters atheists is not guilty of intolerance, but of rudeness and ignorance.’

I must confess that this makes upon me the impression that Fitzjames was a little at a loss for good arguments to support what he felt to be the right mode of limiting his principles. The difficulty was due, I think, to the views which he shared with Mill. The utilitarian point of view tends to lower the true ground of toleration, because it regards exclusively the coercive elements of law. I should hold that free thought is not merely a right, but a duty, the exercise of which should be therefore encouraged as well as permitted; and that the inability of the coarse methods of coercion to stamp out particular beliefs without crushing thought in general, is an essential part of the argument, not a mere accident of particular cases. Our religious beliefs are not separate germs, spreading disease and capable of being caught and suppressed by the rough machinery of law, but parts of a general process underlying all law, and capable of being suppressed only at the cost of suppressing all mental activity. The utilitarian conception dwells too much upon the ‘sanctions,’ and too little on the living spirit, of which they are one expression.

Fitzjames’s view may so far be summed up by saying that he denies the possibility of making the state a neutral in regard to the moral and religious problems involved. Morality, again, coincides with ’utility ’; and the utility of laws and conduct in general is the criterion which we must apply to every case by the help of the appropriate experience. We must therefore reject every general rule in the name of which this criterion may be rejected. This applies to Mill’s doctrine of equality, as well as to his doctrine of non-interference. I pass over some comparatively commonplace remarks upon the inconsistency of ‘liberty’ and ‘equality.’ The most unequivocal contradiction comes out in regard to Mill’s theory of the equality of the sexes. There was no dogma to which Mill was more attached or to which Fitzjames was more decidedly opposed. The essence of the argument, I take it, is this:

A just legislator, says Mill, will treat all men as equals. He must mean, then, that there are no such differences between any two classes of men as would affect the expediency of the applying the same laws to both. What is good for one must therefore be good for another. Now, in the first place, as Fitzjames urges, there is no presumption in favour of this hypothesis; and, in the next place, it is obviously untrue in some cases. Differences of age, for example, must be taken into account unless we accept the most monstrous conclusions. How does this apply to the case of sex? Mill held that the difference in the law was due simply to the superiority of men to women in physical strength. Fitzjames replies that men are stronger throughout, stronger in body, in nerve and muscle, in mind and character. To neglect this fact would be silly; but if we admit it, we must admit its relevance to legislation. Marriage, for example, is one of the cases with which law and morality are both compelled to deal. Now the marriage contract necessarily involves the subordination of the weaker to the stronger. This, says Fitzjames, is as clearly demonstrable as a proposition of Euclid. For, either the contract must be dissoluble at will or the rule must be given to one, and if to one, then, as every one admits, to the husband. We must then choose between entire freedom of divorce and the subordination of the wife. If two people are indissolubly connected and differ in opinions, one must give way. The wife, thinks Fitzjames, should give way as the seaman should give way to his captain; and to regard this as humiliating is a mark not of spirit but of a ’base, unworthy, mutinous disposition.’

If, to avoid this, you made marriage dissoluble, you would really make women the slaves of their husbands. In nine cases out of ten, the man is the most independent, and could therefore tyrannise by the threat of dismissing his wife. By trying to forbid coercion, you do not really suppress it, but make its action arbitrary.

He apologises to a lady in a letter referring to another controversy upon the same subject in which he had used rather strong language about masculine ‘superiority.’ ‘When a beast is stirred up,’ he says, ’he roars rather too loud,’ and ’this particular beast loves and honours and worships women more than he can express, and owes most of the happiness of his life to them.’ By ‘superior’ he only meant ‘stronger’; and he only urges a ‘division of labour,’ and a correspondence between laws and facts. This was, I think, strictly true, and applies to other parts of his book. Partly from pugnacity and partly from contempt of sentimentalism, he manages to put the harsher side of his opinions in front. This appears as we approach the ultimate base of his theory.

I have spoken more than once of Fitzjames’s respect for Hobbes. For Hobbes’s theory of sovereignty, and even its application by the ultramontane De Maistre, had always an attraction for him. Hobbes, with his logical thoroughness, seems to carry the foundations of policy down to the solid rock-bed of fact. Life is a battle; it is the conflict of independent atoms; with differing aims and interests. The strongest, in one way or other, will always rule. But the conflict may be decided peacefully. You may show your cards instead of playing out the game; and peace may be finally established though only by the recognition of a supreme authority. The one question is what is to be the supreme authority? With De Maistre it was the Church; with Fitzjames as with Hobbes it was the State. The welfare of the race can only be secured by order; order only by the recognition of a sovereign; and when that order, and the discipline which it implies, are established, force does not cease to exist: on the contrary, it is enormously increased in efficacy; but it works regularly and is distributed harmoniously and systematically instead of appearing in the chaotic clashing of countless discordant fragments. The argument, which is as clear as Euclid in the case of marriage, is valid universally. Society must be indissoluble; and to be indissoluble must recognise a single ultimate authority in all disputes. Peace and order mean subordination and discipline, and the only liberty possible is the liberty which presupposes such ‘coercion.’ The theory becomes harsh if by ‘coercion’ we mean simply ’physical force’ or the fear of pain. A doctrine which made the hangman the ultimate source of all authority would certainly show brutality. But nothing could be farther from Fitzjames’s intention than to sanction such a theory. His ‘coercion’ really includes an appeal to all the motives which make peace and order preferable to war and anarchy. But it is, I also think, a defect in the book that he does not clearly explain the phrase, and that it slips almost unconsciously into the harsher sense. He tells us, for example, that ’force is dependent upon persuasion and cannot move without it.’ Nobody can rule without persuading his fellows to place their force at his disposal; and therefore he infers ‘persuasion is a kind of force.’ It acts by showing people the consequences of their conduct. He calls controversy, again, an ‘intellectual warfare,’ which, he adds, is far more searching and effective than legal persecution. It roots out the weaker opinion. And so, when speaking of the part played by coercion in religious developments, he says that ’the sources of religion lie hid from us. All that we know is that now and again in the course of ages someone sets to music the tune which is haunting millions of ears. It is caught up here and there, and repeated till the chorus is thundered out by a body of singers able to drown all discords, and to force the unmusical mass to listen to them.’ The word ‘force’ in the last sentence shows the transition. Undoubtedly force in the sense of physical and military force has had a great influence in the formation both of religions and nations. We may say that such force is ‘essential’; as a proof of the energy and often as a condition of the durability of the institutions. But the question remains whether it is a cause or an effect; and whether the ultimate roots of success do not lie in that ‘kind of force’ which is called ‘persuasion’; and to which nobody can object. If coercion be taken to include enlightenment, persuasion, appeals to sympathy and sentiment, and to imagination, it implies an ultimate social groundwork very different from that generally suggested by the word. The utilitarian and individualist point of view tends necessarily to lay stress upon bare force acting by fear and physical pain. The utilitarian ‘sanctions’ of law must be the hangman and the gaoler. So long as society includes unsocial elements it must apply motives applicable to the most brutal. The hangman uses an argument which everyone can understand. In this sense, therefore, force must be the ultimate sanction, though it is equally true that to get the force you must appeal to motives very different from those wielded by the executioner. The application of this analogy of criminal law to questions of morality and religion affects the final conclusions of the book.

Fitzjames’s whole position, if I have rightly interpreted him, depends essentially upon his moral convictions. The fault which he finds with Mill is precisely that Mill’s theory would unmoralise the state. The state, that is, would be a mere association for mutual insurance against injury instead of an organ of the moral sense of the community. What, then, is morality? How are we to know what is right and wrong, and what are our motives for approving and disapproving the good and the bad? Fitzjames uses phrases, especially in his letters, where he is not arguing against an adversary, which appear to be inconsistent, if not with utilitarianism, at least with the morality of mere expediency. Lord Lytton, some time after this, wrote to him about his book, and he replies to the question, ’What is a good man?’ ’a man so constituted that the pleasure of doing a noble thing and the pain of doing a base thing are to him the greatest of pleasures and pains.’ He was fond, too, of quoting, with admiration, Kant’s famous saying about the sublimity of the moral law and the starry heavens. The doctrine of the ’categorical imperative’ would express his feelings more accurately than Bentham’s formulae. But his reasoning was different. He declares himself to be a utilitarian in the sense that, according to him, morality must be built upon experience. ‘The rightness of an action,’ he concludes, ’depends ultimately upon the conclusions at which men may arrive as to matters of fact.’ This, again, means that the criterion is the effect of conduct upon happiness. Here, however, we have the old difficulty that the estimate of happiness varies widely. Fitzjames accepts this view to some extent. Happiness has no one definite meaning, although he admits, in point of fact, there is sufficient resemblance between men to enable them to form such morality as actually exists.

But is such morality satisfactory? Can it, for example, give sufficient reasons for self-sacrifice that is, neglect of my own happiness? Self-sacrifice, he replies, in a strict sense, is impossible; for it could only mean acting in opposition to our own motives of whatever kind which is an absurdity. But among real motives he admits benevolence, public spirit, and so forth, and fully agrees that they are constantly strong enough to overpower purely self-regarding motives. So far, it follows, the action of such motives may be legitimately assumed by utilitarians. He is, therefore, not an ‘egoistic’ utilitarian. He thinks, as he says in a letter referring to his book, that he is ’as humane and public-spirited as his neighbours.’ A man must be a wretched being who does not care more for many things outside his household than for his own immediate pains and pleasures. Had he been called upon to risk health or life for any public object in India, and failed to respond, he would never have had a moment’s peace afterwards. This was no more than the truth, and yet he would sometimes call himself ‘selfish’ in what I hold to be a non-natural sense. He frequently complains of the use of such words as ‘selfishness’ and ‘altruism’ at all. Selfishness, according to him, could merely mean that a man acts from his own motives, and altruism would mean that he acted from somebody else’s motives. One phrase, therefore, would be superfluous, and the other absurd. He insists, however, that, as he puts it, ’self is each man’s centre, from which he can no more displace himself than he can leap off his own shadow.’ Since estimates of happiness differ, the morality based upon them will also differ. And from selfishness in this sense two things follow. First, I have to act upon my own individual conception of morality.

If, then, I meet a person whose morality is different from mine, and who justifies what I hold to be vices, I must behave according to my own view. If I am his ruler, I must not treat him as a person making a possibly useful experiment in living, but as a vicious brute, to be restrained or suppressed by all available means. And secondly, since self is the centre, since a ‘man works from himself outwards,’ it is idle to propose a love of humanity as the guiding motive to morality. ’Humanity is only “I” writ large, and zeal for humanity generally means zeal for My Notions as to what men should be and how they should live.’

This, therefore, leads to the ultimate question: What, in the utilitarian phrase, is the ‘sanction’ of morality? Here his answer is, on one side at least, emphatic and unequivocal. Mill and the positivists, according to him, propose an utterly unsatisfactory motive for morality. The love of ‘humanity’ is the love of a mere shadowy abstraction. We can love our family and our neighbours; we cannot really care much about the distant relations whom we shall never see. Nay, he holds that a love of humanity is often a mask for a dislike of concrete human beings. He accuses Mill of having at once too high and too low an opinion of mankind. Mill, he thinks, had too low an estimate of the actual average Englishman, and too high an estimate of the ideal man who would be perfectly good when all restraints were removed. He excused himself for contempt of his fellows by professing love for an abstraction. To set up the love of ‘humanity,’ in fact, as a governing principle is not only impracticable, but often mischievous. A man does more good, as a rule, by working for himself and his family, than by acting like a ’moral Don Quixote, who is capable of making love for men in general the ground of all sorts of violence against men in particular.’ Indeed, there are many men whom we ought not to love. It is hypocrisy to pretend to love the thoroughly vicious. ’I do not love such people, but hate them,’ says Fitzjames; and I do not want to make them happy, because I could only do so by ’pampering their vices.’

Here, therefore, he reaches the point at which his utilitarian and his Puritanical prepossessions coincide. All law, says the utilitarian, implies ’sanctions’ motives equally operative upon all members of society; and, as the last resort, so far as criminal law is concerned, the sanction of physical suffering. What is the corresponding element in the moral law? To this, says Fitzjames, no positivist can give a fair answer. He has no reply to anyone who says boldly, ’I am bad and selfish, and I mean to be bad and selfish.’ The positivists can only reply, ‘Our tastes differ.’ The great religions have answered differently. We all know the Christian answer, and ’even the Buddhists had, after a time, to set up a hell.’ The reason is simple. You can never persuade the mass of men till you can threaten them. Religions which cannot threaten the selfish have no power at all; and till the positivists can threaten, they will remain a mere ’Ritualistic Social Science Association.’ Briefly, the utilitarian asks, What is the sanction of morality? And the Puritan gives the answer, Hell. Here, then, apparently, we have the keystone of the arch. What is the good of government in general? To maintain the law? And what is the end of the law? To maintain morality. And why should we maintain morality? To escape hell. This, according to some of his critics, was Fitzjames’s own conclusion. It represents, perhaps in a coarse form, an argument which Fitzjames was never tired of putting since the days when he worked out the theory of hell at school.

It would, however, be the grossest injustice to him if I left it to be supposed for a moment that he accepted this version of his doctrine. He repudiated it emphatically; and, in fact, he modifies the doctrine so much that the real question is, whether he does not deprive it of all force. No one was more sensible of the moral objections to the hell of popular belief. He thought that it represented the Creator as a cruel and arbitrary tyrant, whose vengeance was to be evaded by legal fictions. Still, the absolute necessity of some ‘sanction’ of a spiritual kind seemed clear to him. Without it, every religion would fall to pieces, as every system of government would be dissolved without ‘coercion.’ And this is the final conclusion of his book in chapters with which he was, as I find from his letters, not altogether satisfied. He explains in the preface to his second edition that the question was too wide for complete treatment in the limits. Briefly the doctrine seems to be this. The Utilitarian or Positivist can frame a kind of commonplace morality, which is good as far as it goes. It includes benevolence and sympathy; but hardly gets beyond ordering men to love their friends and hate their enemies. To raise morality to a higher strain, to justify what it generally called self-sacrifice, to make men capable of elevated action, they require something more. That something is the belief in God and a future world. ‘I entirely agree,’ he says, ’with the commonplaces about the importance of these doctrines.’ ’If they be mere dreams life is a much poorer and pettier thing, and mere physical comfort far more important than has hitherto been supposed. Morality, he says, depends on religion. If it be asked whether we ought to rise beyond the average utilitarian morality, he replies, ’Yes, if there is a God and a future state. No, if there is no God and no future state.’ And what is to be said of those doctrines, the ultimate foundation, if not of an average morality, yet of all morality above the current commonplaces? Here we have substantially the religious theory upon which I have already dwelt. He illustrates it here by quotations from Mill, who admits the ‘thread of consciousness’ to be an ultimate inexplicability, and by a passage from Carlyle, ’the greatest poet of the age,’ setting forth the mystery of the ‘Me.’ He believes in a Being who, though not purely benevolent, has so arranged the universe, that virtue is the law prescribed to his creatures. The law is stern and inflexible, and excites a feeling less of love than of ‘awful respect.’ The facts of life are the same upon any theory; but atheism makes the case utterly hopeless. A belief in God is inextricably connected with a belief in morality, and if one decays the other will decay with it. Still it is idle to deny that the doctrines are insusceptible of proof. ’Faith says, I will, though I am not sure; Doubt says, I will not, because I am not sure; but they both agree in not being sure.’ He utterly repudiates all the attempts made by Newman and others to get out of the dilemma by some logical device for transmuting a mere estimate of probabilities into a conclusion of demonstrable certitude. We cannot get beyond probabilities. But we have to make a choice and to make it at our peril. We are on a pass, blinded by mist and whirling snow. If we stand still, ’we shall be frozen to death. If we take the wrong road, we shall be dashed to pieces. We do not certainly know whether there is any right one. What must we do? “Be strong and of a good courage.” Act for the best, hope for the best, and take what comes. Above all let us dream no dreams and tell no lies, but go our way, wherever we may land, with our eyes open and our heads erect. If death ends all, we cannot meet it better. If not, let us enter the next scene with no sophistry in our mouths and no masks on our faces.’

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

III. DUNDEE ELECTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. CODIFICATION IN ENGLAND

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

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

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

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

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

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

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

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

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

V. THE METAPHYSICAL SOCIETY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

VI. THE CRIMINAL CODE

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

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

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

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

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

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

VII. ECCLESIASTICAL CASES

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

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

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

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

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

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

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

VIII. CORRESPONDENCE WITH LORD LYTTON

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IX. APPOINTMENT TO A JUDGESHIP

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

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

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

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

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

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