During the latter part of 1861 he was ha_The Life of Sir James Fitzjames Stephen, Bart., K.C.S.I. A Judge of the High Court of Justice

of his speech on behalf of Dr. Williams, which was published soon after

the trial. Without dwelling at any length upon the particular points

involved, I may say that the main issue was very simple. The principal

charge against Dr. Williams was that he had denied the inspiration of

the Bible in the sense in which 'inspiration' was understood by his

prosecutors. He had in particular denied that Jonah and Daniel were the

authors of the books which pass under their names, and he had disputed

the canonicity of the Epistle to the Hebrews. Fitzjames lays down as his

first principle that the question is purely legal; that is, that it is a

question, not whether Dr. Williams's doctrines were true, but whether

they were such as were forbidden by law to be uttered by a clergyman.

Secondly, the law was to be found in the Thirty-nine Articles, the

rubrics, and formularies, not, as the prosecutors alleged, in passages

from Scripture read in the services--a proposition which would introduce

the whole problem of truth or error. Thirdly, he urged, the Articles

had designedly left it open to clergymen to hold that the Bible

'contains' but does not 'constitute' the revelation which must no doubt

be regarded as divine. In this respect the Articles are contrasted with

the Westminster Confession, which affirms explicitly the absolute and

ultimate authority of the Bible. No one on that assumption may go behind

the sacred record; and no question can be raised as to the validity of

anything once admitted to form part of the sacred volume. The Anglican

clergy, on the contrary, are at liberty to apply criticism freely in

order to discriminate between that part of the Bible which is and that

which is not part of divine revelation. Finally, a long series of

authorities from Hooker to Bishop Hampden is adduced to prove that, in

point of fact, our most learned divines had constantly taken advantage

of this liberty; and established, so to speak, a right of way to all the

results of criticism. Of course, as Fitzjames points out, the enormous

increase of knowledge, critical and scientific, had led to very

different results in the later period. But he argues that the principle

was identical, and that it was therefore impossible to draw any line

which should condemn Dr. Williams for rejecting whole books, or denying

the existence of almost any genuine predictions in the Hebrew prophecies

without condemning the more trifling concessions of the same kind made

by Hooker or Chillingworth. If I may remove one stone from the building,

am I not at liberty to remove any stone which proves to be superfluous?

The argument, though forcible and learned, was not in the first instance

quite successful. Dr. Williams was convicted upon two counts; though he

afterwards (1864) succeeded in obtaining an acquittal upon them also on

an appeal to the committee of the Privy Council. Lord Westbury gave

judgment, and, as was said, deprived the clergy of the Church of

England of their 'last hopes of eternal damnation.' On the last

occasion Dr. Williams defended himself.

The case increased Fitzjames's general reputation and led to his being

consulted in some similar cases, though it brought little immediate

result in the shape of briefs. For my purpose the most important result

is the indication afforded of his own religious position. He argues the

question as a matter of law; but not in the sense of reducing it to a

set of legal quibbles or technical subtleties. The prosecutors have

appealed to the law, and to the law they must go; but the law secures to

his client the liberty of uttering his conscientious convictions. Dr.

Williams, he says, 'would rather lose his living as an honest man than

retain it by sneaking out of his opinions like a knave and a liar.'[81]

He will therefore take a bold course and lay down broad principles. He

will not find subterfuges and loopholes of escape; but admit at once

that his client has said things startling to the ignorant, but that he

has said them because he had a right to say them. The main right is

briefly the right to criticise the Bible freely. Fitzjames admits that

he has to run the risk of apparently disparaging that 'most holy volume,

which from his earliest infancy he has been taught to revere as the

choicest gift of God to man, as the guide of his conduct here, the

foundation of his hopes hereafter.'[82] He declares that the articles

were framed with the confidence which has been 'justified by the

experience of three centuries,' and will, he hopes, be justified 'so

long as it pleases God to continue the existence of the human race,'

that the Scripture stands upon a foundation irremovable by any efforts

of criticism or interpretation.[83] The principle which he defends,

(that the Bible contains, but does not constitute revelation) is that

upon which the divines of the eighteenth century based their 'triumphant

defence of Christianity against the deists' of the period. I am certain

that Fitzjames, though speaking as an advocate, was also uttering his

own convictions in these words which at a later period he would have

been quite unable to adopt. I happened at the time to have a personal

interest in the subject, and I remember putting to him a question to

this effect: Your legal argument may be triumphant; but how about the

moral argument? A clergyman may have a right to express certain

opinions; but can you hold that a clergyman who holds those opinions,

and holds also what they necessarily imply, can continue, as an honest

man, to discharge his functions? As often happens, I remember my share

in our talk much more clearly than I remember his; but he was, I know,

startled, and, as I fancied, had scarcely contemplated the very obvious

application of his principles. I have now seen, however, a very full and

confidential answer given about the same time to a friend who had

consulted him upon the same topic. As I have always found, his most

confidential utterances are identical in substance with all that he said

publicly, although they go into more personal applications.[84] The main

purpose of this paper is to convince a lady that she may rightfully

believe in the doctrines of the Church of England, although she does not

feel herself able to go into the various metaphysical and critical

problems involved. The argument shows the way in which his religious

beliefs were combined with his Benthamism. He proves, for example, that

we should believe the truth by the argument that true belief is

'useful.' Conversely the utility of a belief is a presumption that it

contains much truth. Hence the prolonged existence of a Church and its

admitted utility afford a presumption that its doctrines are true as the

success of a political constitution is a reason for believing the theory

upon which it is built. This is enough to justify the unlearned for

accepting the creed of the Church to which they belong, just as they

have to accept the opinions of a lawyer or of a physician in matters of

health and business. They must not, indeed, accept what shocks their

consciences, nor allow 'an intelligible absurdity' to be passed off as a

'sacred mystery.' The popular doctrines of hell and of the atonement

come under this head; but he still refers to Coleridge for an account of

such doctrines, which appears to him 'quite satisfactory.' The Church of

England, however, lays so little stress upon points of dogmatic theology

that its yoke will be tolerable. Combined with this argument is a very

strong profession of his own belief. The belief in a moral governor of

the universe seems to him as ennobling as all other beliefs 'put

together,' and 'more precious.' Although the difficulty suggested by the

prevalence of evil is 'inimical to all levity,' yet he thinks that it

would be 'unreasonable and degrading' not to hold the doctrine itself.

And, finally, he declares that he accepts two doctrines of 'unspeakable

importance.' He prays frequently, and at times fervently, though not for

specific objects, and believes that his prayers are answered. And

further, he is convinced of a 'superintending Providence' which has

throughout affected his life. No argument that he has ever read or

heard has weighed with him a quarter as much as his own personal

experience in this matter.

The paper, written with the most evident sincerity, speaks so strongly

of beliefs which he rarely avowed in public that I feel it almost wrong

to draw aside his habitual veil of reticence. I do so, though briefly,

because some of his friends who remember his early orthodoxy were

surprised by the contrast of what they call his aggressive unbelief in

later life. It is therefore necessary to show that at this period he had

some strong positive convictions, which indeed, though changed in later

years, continued to influence his mind. He was also persuaded that the

Church of England, guarded by the decisions of lawyers, could be kept

sufficiently open to admit the gradual infusion of rational belief. I

must further remark that his belief, whatever may be thought of it,

represented so powerful a sentiment that I must dwell for a little upon

its general characteristics. For this reason I will speak here of the

series of articles in 'Fraser' to which I have already referred. During

the next few years, 1864 to 1869, he wrote several, especially in

1864-5, which he apparently intended to collect. The most significant of

these is an article upon Newman's 'Apologia,' which appeared in

September 1864.

Fitzjames had some personal acquaintance with Newman. He had been taken

to the Oratory, I believe by his friend Grant Duff; and had of course

been impressed by Newman's personal charm. Fitzjames, however, was not

the man to be awed by any reputation into reticence. He had a right to

ask for a serious answer to serious questions. Newman represented claims

which he absolutely rejected, but which he desired fully to understand.

He had on one occasion a conversation which he frequently mentioned in

later years. The substance, as I gather from one of his letters, was to

this effect: 'You say,' said Fitzjames, 'that it is my duty to treat you

and your Church as the agents and mouthpiece of Almighty God?' 'Yes.'

'Then give me anything like a reasonable ground for believing that you

are what you claim to be.' Newman appears to have replied in substance

that he could not argue with a man who differed so completely upon first

principles. Fitzjames took this as practically amounting to the

admission that Newman had 'nothing to say to anyone who did not go

three-fourths of the way to meet him.' 'I said at last,' he proceeds,

'"If Jesus Christ were here, could He say no more than you do?" "I

suppose you to mean that if He could, I ought to be able to give you

what you ask?" "Certainly, for you profess to be His authorised agent,

and call upon me to believe you on that ground. Prove it!" All he could

say was, "I cannot work miracles," to which I replied, "I did not ask

for miracles but for proofs." He had absolutely nothing to say.'

I need hardly say that Newman's report of the conversation would

probably have differed from this, which gives a rough summary from

Fitzjames's later recollections. I do not hesitate, however, to express

my own belief that it gives a substantially accurate account; and that

the reason why Newman had nothing to say is simply that there was

nothing to be said. Persons who suppose that a man of Newman's genius in

stating an argument must have been a great logician, and who further

imagine that a great logician shows his power by a capacity of deducing

any conclusions from any premises, will of course deny that statement.

To argue the general question involved would be irrelevant. What I am

concerned to point out is simply the inapplicability of Newman's

argument to one in Fitzjames's state of mind. The result will, I think,

show very clearly what was his real position both now and in later

years.

His essay on the 'Apologia' insists in the first place upon a

characteristic of Newman's writings, which has been frequently pointed

out by others; that is, that they are essentially sceptical. The author

reaches orthodox conclusions by arguments which are really fatal to

them. The legitimate inference from an argument does not depend upon the

intention of the arguer; and the true tendency of Newman's reasonings

appears simply by translating them into impartial language. Fitzjames

dwells especially upon Newman's treatment of the fundamental doctrine of

the existence of a God. Newman, for example, defends a belief in

transubstantiation by dwelling upon the antinomies involved in the

argument for a Deity. As, in one case, we cannot give any meaning to an

existence without a beginning, so, in the other, we can attach no

meaning to the word 'substance.' If the analogy be correct, the true

inference would be that both doctrines are meaningless aggregations of

words, and therefore not capable of being in any true sense either

'believed' or 'disbelieved.' So again the view of the external world

suggests to Newman 'atheism, pantheism, or polytheism.' Almighty

benevolence has created a world of intelligent beings, most of whom are

doomed to eternal tortures, and having become incarnate in order to save

us, has altogether failed in His purpose. The inference is, says

Fitzjames, that 'if Dr. Newman was thoroughly honest he would become an

atheist.' The existence of evil is, in fact, an argument against the

goodness of God; though it may be, as Fitzjames thinks it is in fact,

overbalanced by other evidence. But if it be true that God has created

an immense proportion of men to be eternally tormented in hell fire, it

is nonsense to call Him benevolent, and the explanation by a supposed

'catastrophe' is a mere evasion.

In spite of this, Newman professes himself, and of course in all

sincerity, as much convinced of the existence of God as he is of his own

existence. The 'objections,' as he puts it, are only 'difficulties';

they make it hard to understand the theory, but are no more reasons for

rejecting it than would be the difficulty which a non-mathematical mind

finds in understanding the differential calculus for rejecting 'Taylor's

theorem.' And, so far, the difference is rather in the process than the

conclusion. Newman believes in God on the testimony of an inner voice,

so conclusive and imperative that he can dismiss all apparently

contradictory facts, and even afford, for controversial purposes, to

exaggerate them. Fitzjames, as a sound believer in Mill's logic, makes

the facts the base of his whole argumentative structure, though he

thinks that the evidence for a benevolent Deity is much stronger than

the evidence against it. When we come to the narrower question of the

truth of Christianity the difference is vital. Newman's course had, in

fact, been decided by a belief, however generated, in the 'principle of

dogma,' and on the other hand by the gradual discovery of the

unsatisfactory nature of the old-fashioned Protestant argument as

interpreted by Paley and the evidence writers. For that argument, as has

been seen, Fitzjames had still a considerable respect. But no one had

insisted more energetically upon its practical insufficiency, at any

rate, than Newman. He had declared man's reason to be so corrupt, that

one who becomes a Protestant is on a slope which will inevitably lead

through Socinianism to Atheism. To prove his claims, therefore, to a

Protestant by appealing to such grounds as the testimony of the gospels,

was obviously impossible. That evidence, taken by itself, especially as

a sound utilitarian lawyer would take it, was, on his own showing,

practically insufficient to prove the truth of the alleged facts, and,

much more, to base upon them the claim of the infallible Church. It is

precisely the insufficiency of this view that gives force to the demand

for a supernatural authority.

How, then, was Newman to answer an inquirer? Obviously, on his own

ground, he must appeal to the _a priori_ arguments afforded by the

instinctive desire of men for an authoritative body, and to the

satisfaction of their conscience by the dogmas revealed through its

agency. Then the question occurs: Is this a logical argument, or an

appeal from argument to feeling? Is it not, as Fitzjames thinks, a

roundabout way of saying, 'I believe in this system because it suits my

tastes and feelings, and because I consider truth unattainable'? If so,

persuasion is substituted for reasoning: and the force of persuasion

depends upon the constitution of the person to be persuaded. Now the

arguments, if they be called arguments, which Newman could address to

Fitzjames upon this topic were obviously inapplicable. The dogmas, says

Newman, are congenial to the conscience. The conscience demands an

avenging Deity, and therefore a doctrine of sacrifice. But such an

appeal fails if, in point of fact, a man's conscience rises against the

dogma. This was Fitzjames's position. 'Large parts of the (Catholic)

theology,' he says in a letter, 'are not only silly, but, I think, cruel

and immoral to the last degree. I think the doctrine of eternal

damnation so wicked and so cruel that I would as soon teach my children

to lie and steal as to believe in it.' This was to express one of his

strongest convictions. In a review of Theodore Parker's works,[85]

written shortly before, he had to deal with an advocate of that

'intuitional' theory which he always repudiated. But Parker at least

appealed to reason, and had, by a different path, reached moral

conclusions with Fitzjames thoroughly agreed. Doctrines, says Fitzjames,

which _prima facie_ conflict with our belief in a benevolent Creator,

such as the theory of vicarious suffering, are not indeed capable of

being refuted by Parker's summary method; but he fully agrees that they

could only be established by very strong evidence, which he obviously

does not believe to exist. To appeal, then, to the conscience on behalf

of the very doctrine which has been destroyed by the revolt of our moral

feelings is obviously impossible. Newman, when he notices that the

modern world rejects the sacrifice theory, explains it by saying that

the conscience of the modern world has decayed. But it is a mere playing

fast and loose with logic when you deny the authority of the court to

which you appeal as soon as it decides against you. To Fitzjames, at any

rate, who regarded these doctrines as radically immoral, the argument

could have no application.

Finally, the desire for some infallible guide in the midst of our doubts

and difficulties is equally wide of the mark. It is so because, though

the desire for truth is perfectly natural or highly commendable, there

is not the slightest ground for supposing that it implies any royal road

to truth. In all other matters, political, social, and physical, we have

to blunder slowly into truth by harsh experience. Why not in religious

matters? Upon this Fitzjames frequently insists. Deny any _a priori_

probability of such guidance, he says, and the Catholic argument

vanishes. Moreover, as he argues at length in his review of the

'Apologia,' it is absolutely inconsistent with facts. What is the use of

saying that man's nature demands an infallible guide, when, as a matter

of admitted fact, such a guide has only been granted to one small

fraction of mankind? For thousands of years, and over the great majority

of the present world, you admit yourselves that no such guide exists.

What, then, is the value of an _a priori_ argument that it must exist?

When Newman has to do with the existence of the Greek Church, he admits

it to be inconsistent with his theory, but discovers it to be a

'difficulty' instead of an 'objection.' That is to say that an argument

which you cannot answer is to be dismissed on pretence of being only a

'difficulty,' as nonsense is to be admitted under the name of a

'mystery.' If you argued in that way in a court of justice, and, because

you had decided a case one way, refused to admit evidence for the other

view, what would be the value of your decision?

I cannot here argue the justice of this view of Newman's theories,

though personally I think it just. But it is, in any case, eminently

characteristic. Fitzjames, like Newman, had been much influenced by

Butler. Both of them, after a fashion, accept Butler's famous saying

that 'probability is the guide of life.' Newman, believing in the

necessity of dogma, holds that we are justified in transmuting the

belief corresponding to probability into such 'certitude' as corresponds

to demonstration. He does so by the help of appeals to our conscience,

which, for the reasons just given, fail to have any force for his

opponent. Fitzjames adhered steadily to Butler's doctrine. There is, he

says, a probability of the truth of the great religious doctrines--of

the existence of a God and a soul; and, therefore, of the correctness of

the belief that this world is a school or a preparation for something

higher and better. No one could speak more emphatically than he often

did of the vast importance of these doctrines. To hold them, he says,

makes all the difference between a man and a beast. But his almost

passionate assertion of this opinion would never lead him to

over-estimate the evidence in its favour. We do not know the truth of

these doctrines; we only know that they are probably true, and that

probability is and must be enough for us; we must not torture our

guesses into a sham appearance of infallible reasoning, nor call them

self-evident because we cannot prove them, nor try to transfer the case

from the court of reason to the court of sentiment or emotion.

I might say, if I wished to be paradoxical, that this doctrine seems

strange precisely because it is so common. It is what most people who

think at all believe, but what nobody likes to avow. We have become so

accustomed to the assertion that it is a duty for the ignorant to hold

with unequivocal faith doctrines which are notoriously the very centres

of philosophical doubt, that it is hard to believe that a man can regard

them as at once important and incapable of strict proof. Fitzjames

naturally appears to the orthodox as an unbeliever, because he admits

the doubt. He replies to one such charge that the 'broad general

doctrines, which are the only consolation in death and the only solid

sanction of morality, never have been, and, please God, never shall be,

treated in these columns in any other spirit than that of profound

reverence and faith.'[86] Yet he would not say, for he did not think,

that those doctrines could be demonstrated. It was the odd thing about

your brother, said his old friend T. C. Sandars to me, that he would

bring one face to face with a hopeless antinomy, and instead of trying,

like most of us, to patch it up somehow, would conclude, 'Now let us go

to breakfast.' Some of us discover a supernatural authority in these

cases; others think that the doubt which besets these doctrines results

from a vain effort to transcend the conditions of our intelligence, and

that we should give up the attempt to solve them. Most men to whom they

occur resolve that if they cannot answer their doubts they can keep them

out of sight, even of themselves. Fitzjames was peculiar in frankly

admitting the desirability of knowledge, which he yet admitted, with

equal frankness, to be unattainable. And, for various reasons, partly

from natural pugnacity, he was more frequently engaged in exposing sham

substitutes for logic than in expounding his own grounds for believing

in the probability. His own view was given most strikingly in a little

allegory which I shall slightly condense, and which will, I think,

sufficiently explain his real position in these matters. It concludes a

review of a pamphlet by William Thomson, then Archbishop of York, upon

the 'Limits of Philosophical Enquiry.'[87]

I dreamt, he says, after Bunyan's fashion, that I was in the cabin of a

ship, handsomely furnished and lighted. A number of people were

expounding the objects of the voyage and the principles of navigation.

They were contradicting each other eagerly, but each maintained that the

success of the voyage depended absolutely upon the adoption of his own

plan. The charts to which they appealed were in many places confused and

contradictory. They said that they were proclaiming the best of news,

but the substance of it was that when we reached port most of us would

be thrown into a dungeon and put to death by lingering torments. Some,

indeed, would receive different treatment; but they could not say why,

though all agreed in extolling the wisdom and mercy of the Sovereign of

the country. Saddened and confused I escaped to the deck, and found

myself somehow enrolled in the crew. The prospect was unlike the

accounts given in the cabin. There was no sun; we had but a faint

starlight, and there were occasionally glimpses of land and of what

might be lights on shore, which yet were pronounced by some of the crew

to be mere illusions. They held that the best thing to be done was to

let the ship drive as she would, without trying to keep her on what was

understood to be her course. For 'the strangest thing on that strange

ship was the fact that there was such a course.' Many theories were

offered about this, none quite satisfactory; but it was understood that

the ship was to be steered due north. The best and bravest and wisest of

the crew would dare the most terrible dangers, even from their comrades,

to keep her on her course. Putting these things together, and noting

that the ship was obviously framed and equipped for the voyage, I could

not help feeling that there was a port somewhere, though I doubted the

wisdom of those who professed to know all about it. I resolved to do my

duty, in the hope that it would turn out to have been my duty, and I

then felt that there was something bracing in the mystery by which we

were surrounded, and that, at all events, ignorance honestly admitted

and courageously faced, and rough duty vigorously done, was far better

than the sham knowledge and the bitter quarrels of the sickly cabin and

glaring lamplight from which I had escaped.

I need add no exposition of a parable which gives his essential doctrine

more forcibly than I could do it. I will only add that he remained upon

good terms with Newman, who had, as he heard, spoken of his article as

honest, plain-spoken, and fair to him. He hopes, as he says upon this,

to see the old man and talk matters over with him--a phrase which

probably anticipates the interview of which I have spoken. Newman

afterwards (September 9, 1866) writes to him in a friendly way, and

gives him a statement of certain points of Catholic moral theology.

They seem to have met again, but without further argument.

Fitzjames wrote various articles in 'Fraser' attacking Manning, and

criticising among other writings Mr. Lecky's 'Rationalism' (very

favourably), and Professor Seeley's then anonymous 'Ecce Homo.' He

thinks that the author is a 'sheep in wolf's clothing,' and that his

views dissolve into mist when closely examined. I need not give any

account of these articles, but I may notice a personal connection which

was involved. At this time Mr. Froude was editor of 'Fraser,' a

circumstance which doubtless recommended the organ. At what time he

became acquainted with Fitzjames I am unable to say; but the

acquaintanceship ripened into one of his closest friendships. They had

certain intellectual sympathies; and it would be hard to say which of

them had the most unequivocal hatred of popery. Here again, however, the

friendship was compatible with, or stimulated by, great contrasts of

temperament. No one could be blind to Froude's great personal charm

whenever he chose to exert it; but many people had the feeling that it

was not easy to be on such terms as to know the real man. There were

certain outworks of reserve and shyness to be surmounted, and they

indicated keen sensibilities which might be unintentionally shocked. But

to such a character there is often a great charm in the plain, downright

ways of a masculine friend, who speaks what he thinks without reserve

and without any covert intention. Froude and Fitzjames, in any case,

became warmly attached; Froude thoroughly appreciated Fitzjames's fine

qualities, and Fitzjames could not but delight in Froude's cordial

sympathy.[88] Fitzjames often stayed with him in later years, both in

Ireland and Devonshire: he took a share in the fishing, shooting, and

yachting in which Froude delighted; and if he could not rival his

friend's skill as a sportsman admired it heartily, delighted in pouring

out his thoughts about all matters, and, as Froude told me, recommended

himself to such companions as gamekeepers and fishermen by his hearty

and unaffected interest in their pursuits.

Along with this friendship I must mention the friendship with Carlyle.

Carlyle had some intercourse with my father in the 'fifties.' My father,

indeed, had thought it proper to explain, in a rather elaborate letter

after an early conversation, that he did not sympathise with one of

Carlyle's diatribes against the Church of England, though he had not

liked to protest at the moment. Carlyle responded very courteously and

asked for further meetings. His view of my father was coloured by some

of his usual severity, but was not intentionally disparaging.

Fitzjames, on his first call, had been received by Mrs. Carlyle, who

ordered him off the premises on suspicion of being an American celebrity

hunter. He submitted so peacefully that she relented; called him back,

and, discovering his name, apologised for her wrath. I cannot fix the

dates, but during these years Fitzjames gradually came to be very

intimate with her husband. Froude and he were often companions of the

old gentleman on some of his walks, though Fitzjames's opportunities

were limited by his many engagements. I may here say that it would, I

think, be easy to exaggerate the effects of this influence. In later

years Fitzjames, indeed, came to sympathise with many of Carlyle's

denunciations of the British Constitution and Parliamentary Government.

I think it probable that he was encouraged in this view by the fiery

jeremiads of the older man. He felt that he had an eminent associate in

condemning much that was a general object of admiration. But he had

reached his own conclusions by an independent path. From Carlyle he was

separated by his adherence to Mill's philosophical and ethical

principles. He was never, in Carlyle's phrase, a 'mystic'; and his

common sense and knowledge of practical affairs made many of Carlyle's

doctrines appear fantastic and extravagant. The socialistic element of

Carlyle's works, of which Mr. Ruskin has become the expositor, was

altogether against his principles. In walking with Carlyle he said that

it was desirable to steer the old gentleman in the direction of his

amazingly graphic personal reminiscences instead of giving him texts for

the political and moral diatribes which were apt to be reproductions of

his books. In various early writings he expressed his dissent very

decidedly along with a very cordial admiration both of the graphic

vigour of Carlyle's writings and of some of his general views of life.

In an article in 'Fraser' for December 1865, he prefaces a review of

'Frederick' by a long discussion of Carlyle's principles. He

professes himself to be one of the humble 'pig-philosophers' so

vigorously denounced by the prophet. Carlyle is described as a

'transcendentalist'--a kind of qualified equivalent to intuitionist. And

while he admires the shrewdness, picturesqueness, and bracing morality

of Carlyle's teaching, Fitzjames dissents from his philosophy. Nay, the

'pig-philosophers' are the really useful workers; they have achieved the

main reforms of the century; even their favourite parliamentary methods

and their democratic doctrines deserve more respect than Carlyle has

shown them; and Carlyle, if well advised, would recognise the true

meaning of some of the 'pig' doctrines to be in harmony with his own.

Their _laissez-faire_ theory, for example, is really a version of his

own favourite tenet, 'if a man will not work, neither let him eat.'

Although Fitzjames's views changed, he could never become a thorough

Carlylean; and after undertaking to write about Carlyle in Mr. Morley's

series he abandoned the attempt chiefly because, as he told me, he found

that he should have to adopt too frequently the attitude of a hostile

critic. Meanwhile Carlyle admired my brother's general force of

character, and ultimately made him his executor, in order, as he put it,

that there might be a 'great Molossian dog' to watch over his treasure.

VIII. VIEW OF THE CRIMINAL LAW

I come now to the third book of which I have spoken. This was the

'General View of the Criminal Law of England,' published in 1863.

Fitzjames first begins to speak of his intention of writing this book in

1858. He then took it up in preference to the history of the English

administrative system, recommended by his father. That book, indeed,

would have required antiquarian researches for which he had neither time

nor taste. He thought his beginning too long and too dull to be finished

at present. He was anxious, moreover, at the time of the Education

Commission to emphasise the fact that he had no thoughts of abandoning

his profession. A law-book would answer this purpose; and the conclusion

of the commission in 1861, and the contemporary breach with the

'Saturday Review,' gave him leisure enough to take up this task. The

germ of the book was already contained in his article in the 'Cambridge

Essays,' part of which he reproduces. He aspired to make a book which

should be at once useful to lawyers and readable by every educated man.

The 'View' itself has been in a later edition eclipsed by the later

'History of the English Criminal Law.' In point of style it is perhaps

better than its successor, because more concentrated to a single focus.

Although I do not profess to be a competent critic of the law, a few

words will explain the sense in which I take it to be characteristic of

himself.

The book, in the first place, is not, like most law-books, intended for

purely practical purposes. It attempts to give an account of the

'general scope, tendency, and design of an important part of our

institutions of which surely none can have a greater moral significance,

or be more closely connected with broad principles of morality and

politics, than those by which men rightfully, deliberately, and in cold

blood, kill, enslave, or otherwise torment their fellow-creatures.'[89]

The phrase explains the deep moral interest belonging in his mind to a

branch of legal practice which for sufficiently obvious reasons is

generally regarded as not deserving the attention of the higher class of

barristers. Fitzjames was always attracted by the dramatic interest of

important criminal cases, and by the close connection in various ways

between criminal law and morality. He had now gained sufficient

experience to speak with some authority upon a topic which was to occupy

him for many years. In his first principles he was an unhesitating

disciple of Bentham[90] and Austin. Bentham had given the first great

impulse to the reforms in the English Criminal Law, which began about

1827; and Austin had put Bentham's general doctrine into a rigid form

which to Fitzjames appeared perfectly satisfactory. Austin's authority

has declined as the historical method has developed; Fitzjames gives his

impression of their true relations in an article on 'Jurisprudence' in

the 'Edinburgh Review' of October 1861. He there reviews the

posthumously published lectures of Austin, along with Maine's great book

upon 'Ancient Law,' which in England heralded the new methods of

thought. His position is characteristic. He speaks enthusiastically of

Austin's services in accurately defining the primary conceptions with

which jurisprudence is conversant. The effect is, he says, nothing less

than this; that jurisprudence has become capable of truly scientific

treatment. He confirms his case by the parallel of the Political Economy

founded by Adam Smith and made scientific by Ricardo. I do not think

that Fitzjames was ever much interested in economical writings; and here

he is taking for granted the claims which were generally admitted under

the philosophical dynasty of J. S. Mill. Political Economy was supposed

to be a definitely constituted science; and the theory of jurisprudence,

which sprang from the same school and was indeed its other main

achievement, was entitled to the same rank. Fitzjames argues, or rather

takes for granted, that the claims of the economists to be strictly

scientific are not invalidated by the failure of their assumptions to

correspond exactly to concrete facts; and makes the same claim on behalf

of Austin. His view of Maine's work is determined by this. He of course

cordially admires his friend; but protests against the assumption by

which Maine is infected, that a history of the succession of opinions

can be equivalent to an examination of their value. Maine shows, for

example, how the theory of the 'rights of man' first came up in the

world; but does not thereby either prove or disprove it. It may have

been a fallacy suggested by accident or a truth first discovered in a

particular case. Maine, therefore, and the historical school generally

require some basis for their inquiries, and that basis is supplied by

the teaching of Bentham and Austin. I will only observe in connection

with this that Fitzjames is tempted by his love of such inquiries to

devote a rather excessive space in his law-book to inquiries about the

logical grounds of conviction which have the disadvantage of not being

strictly relevant, and the further disadvantage, I think, of following

J. S. Mill in some of the more questionable parts of his logic.

The writings of Bentham consisted largely in denunciations of the

various failings of the English law; and here Fitzjames takes a

different position. One main point of the book was the working out of a

comparison already made in the 'Cambridge Essays' between the English

and the French systems. This is summed up in the statement that the

English accepts the 'litigious' and the French the 'inquisitorial'

system. In other words, the theory of French law is that the whole

process of detecting crime is part of the functions of government. In

France there is a hierarchy of officials who, upon hearing of a crime,

investigate the circumstances in every possible way, and examine

everyone who is able, or supposed to be able, to throw any light upon

it. The trial is merely the final stage of the investigation, at which

the various authorities bring out the final result of all their previous

proceedings. The theory of English law, on the contrary, is 'litigious':

the trial is a proceeding in which the prosecutor endeavours to prove

that the prisoner has rendered himself liable to a certain punishment;

and does so by producing evidence before a judge, who is taken to be,

and actually is, an impartial umpire. He has no previous knowledge of

the fact; he has had nothing to do with any investigations, and his

whole duty is to see that the game is played fairly between the

ligitants according to certain established rules. Neither system,

indeed, carries out the theory exclusively. 'An English criminal trial

is a public inquiry, having for its object the discover of truth, but

thrown for the purposes of obtaining that end into the form of a

litigation between the prosecutor and the prisoner.'[91] On the other

hand, in the French system, the jury is really an 'excrescence'

introduced by an afterthought. Now, says Fitzjames, the 'inquisitorial

theory' is 'beyond all question the true one.' A trial ought obviously

to be a public inquiry into a matter of public interest. He holds,

however, that the introduction of the continental machinery for the

detection of crime is altogether out of the question. It practically

regards the liberty and comfort of any number of innocent persons as

unimportant in comparison with the detection of a crime; and involves an

amount of interference and prying into all manner of collateral

questions which would be altogether unendurable in England. He is

therefore content to point out some of the disadvantages which result

from our want of system, and to suggest remedies which do not involve

any radical change of principle.

This brings out his divergence from Bentham, not in principle but in the

application of his principles. One most characteristic part of the

English system is the law of evidence, which afterwards occupied much of

Fitzjames's thoughts. Upon the English system there are a great number

of facts which, in a logical sense, have a bearing upon the case, but

which are forbidden to be adduced in a trial. So, to make one obvious

example, husbands and wives are not allowed to give evidence against

each other. Why not? asks Bentham. Because, it is suggested, the

evidence could not be impartial. That, he replies, is an excellent

reason for not implicitly believing it; but it is no reason for not

receiving it. The testimony, even if it be partial, or even if false,

may yet be of the highest importance when duly sifted with a view to the

discovery of the truth. Why should we neglect any source from which

light may be obtained? Such arguments fill a large part of Bentham's

elaborate treatise upon the 'Rationale of Evidence,' and support his

denunciations of the 'artificial' system of English law. English

lawyers, he held, thought only of 'fee-gathering'; and their technical

methods virtually reduced a trial from an impartial process of

discovering truth into a mere struggle between lawyers fighting under a

set of technical and arbitrary rules. He observes, for example, that the

'natural' mode of deciding a case has been preserved in a few cases by

necessity, and especially in the case of Courts-Martial.[92] Bentham was

not a practical lawyer; and Fitzjames had on more than one occasion been

impressed in precisely the opposite way by the same case.[93] He had

pointed out that the want of attention to the rules of evidence betrayed

courts-martial into all manner of irrelevant and vexatious questions,

which protracted their proceedings beyond all tolerable limits. But, on

a larger scale, the same point was illustrated by a comparison between

French and English trials. To establish this, he gives careful accounts

of four English and three French trials for murder. The general result

is that, although some evidence was excluded in the English trials which

might have been useful, the advantage was, on the whole, greatly on

their side. The French lawyers were gradually drawn on into an enormous

quantity of investigations having very little relation to the case,

and finally producing a mass of complicated statements and

counter-statements beyond the capacity of a jury to bring to a definite

issue. The English trials, on the other hand, did, in fact, bring

matters to a focus, and allowed all really relevant matters to be fairly

laid before the court. A criminal trial has to be more or less of a

rough and ready bit of practical business. The test by which it is

decided is not anything which can be laid down on abstract logical

principles, but reduces itself to the simple fact that you can get

twelve men to express a conviction equal to that which would decide them

in important business of their own. And thus, though the English law is

unsystematic, ill-arranged, and superficially wanting in scientific

accuracy, it does, in fact, represent a body of principles, worked out

by the rough common sense of successive generations, and requires only

to be tabulated and arranged to become a system of the highest

excellence.

The greatest merit, perhaps, of the English system is the attitude

naturally assumed by the judge. No one, says Fitzjames, 'can fail to be

touched' when he sees an eminent lawyer 'bending the whole force of his

mind to understand the confused, bewildered, wearisome, and

half-articulate mixture of question and statement which some wretched

clown pours out in the agony of his terror and confusion.' The latitude

allowed in such cases is highly honourable. 'Hardly anything short of

wilful misbehaviour, such as gross insults to the court or abuse of a

witness, will draw upon (the prisoner) the mildest reproof.'[94] The

tacit understanding by which the counsel for the Crown is forbidden to

press his case unfairly is another proof of the excellence of our

system, which contrasts favourably in this respect with the badgering

and the prolonged moral torture to which a French prisoner is subject.

Reforms, however, are needed which will not weaken these excellences.

The absence of any plan for interrogating the prisoner avoids the abuses

of the French system, but is often a cruel hardship upon the innocent.

'There is a scene,' he says, 'which most lawyers know by heart, but

which I can never hear without pain.' It is the scene when the prisoner,

confused by the unfamiliar surroundings, and by the legal rules which he

does not understand, tries to question the adverse witness, and muddles

up the examination with what ought to be his speech for the defence,

and, not knowing how to examine, is at last reduced to utter perplexity,

and thinks it respectful to be silent. He mentions a case by which he

had been much impressed, in which certain men accused of poaching had

failed, from want of education and familiarity with legal rules, to

bring out their real defence. An unlucky man, for example, had asked

questions about the colour of a dog, which seemed to have no bearing

upon the case, but which, as it afterwards turned out, incidentally

pointed to a fact which identified the really guilty parties. He thinks

that the interrogation of the prisoner might be introduced under such

restrictions as would prevent any unfair bullying, and yet tend both to

help an innocent man and to put difficulties in the way of sham or false

defences of the guilty. This question, I believe, is still unsettled. I

will not dwell upon other suggestions. I will only observe that he is in

favour of some codification of the criminal law; though he thinks that

enough would be done by re-enacting, in a simpler and less technical

form, the six 'Consolidation Acts' of 1861. He proposes, also, the

formation of a Ministry of Justice which would in various ways direct

the administration of the law, and superintend criminal legislation.

Briefly, however, I am content to say that, while he starts from

Bentham, and admits Bentham's fundamental principles, he has become

convinced by experience that Bentham's onslaught upon 'judge-made law,'

and legal fictions, and the 'fee-gathering' system, was in great part

due to misunderstanding. The law requires to be systematised and made

clear rather than to be substantially altered. It is, on the whole, a

'generous, humane, and high-minded system, eminently favourable to

individuals, and free from the taint of that fierce cowardice which

demands that, for the protection of society, somebody shall be punished

when a crime has been committed.' Though English lawyers are too apt to

set off 'an unreasonable hardship against an unreasonable indulgence,'

'to trump one quibble by another, and to suppose that they cannot be

wrong in practice because they are ostentatiously indifferent to

theory,' the temper of the law is, in the main, 'noble and generous.'

'No spectacle,' he says, 'can be better fitted to satisfy the bulk of

the population, to teach them to regard the Government as their friend,

and to read them lessons of truth, gentleness, moderation, and respect

for the rights of others, especially for the rights of the weak and the

wicked, than the manner in which criminal justice is generally

administered in this country.'[95]

The book produced many of those compliments to which he was becoming

accustomed, with a rather rueful sense of their small value. He could,

he says, set up a shop with the stock he had received, though, in common

honesty, he would have to warn his customers of the small practical

value of his goods. Two years hence, he thinks that a report of his

being a legal author of some reputation may have reached an attorney.

Among the warmest admirers was Willes, who called the 'View' a 'grand

book,' kept it by him on the bench, and laid down the law out of it.

Willes remarks in a murder case at the same time (March 1865) that the

prisoner has been defended 'with a force and ability which, if anything

could console one for having to take part in such a case, would do so.'

'It is a great consolation to me,' remarks Fitzjames. The local

newspaper observes on the same occasion that Fitzjames's speech for the

prisoner kept his audience listening 'in rapt attention' to one of the

ablest addresses ever delivered under such circumstances. In the

beginning of 1865 he 'obtained the consent' of his old tutor Field, now

leader on the circuit, to his giving up attendance at sessions except

upon special retainers. Altogether he is feeling more independent and

competent for his professional duties.

IX. THE 'PALL MALL GAZETTE'

At this time, however, he joined in another undertaking which for the

following five years occupied much of his thoughts. It involved labours

so regular and absorbing, that they would have been impossible had his

professional employments been equal to his wishes. Towards the end of

1864 he informs Mr. Smith that he cannot continue to be a regular

contributor to the 'Cornhill Magazine.' He observes, however, that if

Mr. Smith carries out certain plans then in contemplation, he will be

happy to take the opportunity of writing upon matters of a more serious

kind. The reference is to the 'Pall Mall Gazette,' of which the first

number appeared on February 7, 1865, upon the opening day of the

parliamentary session. The 'Pall Mall Gazette' very soon took a place

among daily papers similar to that which had been occupied by the

'Saturday Review' in the weekly press. Many able writers were attached,

and especially the great 'Jacob Omnium' (Matthew James Higgins), who had

a superlative turn for 'occasional notes,' and 'W. R. G.' (William

Rathbone Greg), who was fond of arguing points from a rather

paradoxical point of view. 'I like refuting W. R. G.,' says Fitzjames,

though the 'refutations' were on both sides courteous and even

friendly.[96] Mr. Frederic Harrison was another antagonist, who always

fought in a chivalrous spirit, and on one occasion a controversy between

them upon the theory of strikes actually ends by a mutual acceptance of

each other's conclusions. A sharp encounter with 'Historicus' of the

'Times' shows that old Cambridge encounters had not produced agreement.

Fitzjames was one of the writers to whom Mr. Smith applied at an early

stage of the preparatory arrangements. Fitzjames's previous experience

of Mr. Smith's qualities as a publisher made him a very willing recruit,

and he did his best to enlist others in the same service. He began to

write in the second number of the paper, and before very long he took

the lion's share of the leading articles. The amount of work, indeed,

which he turned out in this capacity, simultaneously with professional

work and with some other literary occupations, was so great that these

years must, I take it, have been the most laborious in a life of

unflagging labour. I give below an account of the number of articles

contributed, which will tell the story more forcibly than any general

statement. A word or two of explanation will be enough.[97] The 'Pall

Mall' of those days consisted of a leading article (rarely of two)

often running to a much greater length than is now common; of

'occasional notes,' which were then a comparative novelty; of reviews,

and of a few miscellaneous articles. The leading article was a rather

more important part of the paper, or at least took up a larger

proportion of space than it does at the present day. Making allowance

for Sundays, it will be seen that in 1868 Fitzjames wrote two-thirds of

the leaders, nearly half the leaders in 1867, and not much less than

half in the three other years (1865, 1866, and 1869). The editor was Mr.

F. Greenwood, who has kindly given me some of his recollections of the

time. That Mr. Greenwood esteemed his contributor as a writer is

sufficiently obvious from the simple statement of figures: and I may add

that they soon formed a very warm friendship which was never interrupted

in later years.

I have said that Fitzjames valued his connection with the paper because

it enabled him to speak his mind upon many important subjects which had

hitherto been forbidden to him. In the 'Saturday Review' he had been

confined to the 'middles' and the reviews of books. He never touched

political questions; and such utterances as occurred upon ecclesiastical

matters were limited by the high church propensities of the proprietor.

In the 'Cornhill' he had been bound to keep within the limits prescribed

by the tastes of average readers of light literature. In the 'Pall Mall

Gazette' he was able to speak out with perfect freedom upon all the

graver topics of the day. His general plan, when in town, was to write

before breakfast, and then to look in at the office of the 'Pall Mall

Gazette,' Northumberland Street, Strand, in the course of his walk to

his chambers. There he talked matters over with Mr. Greenwood, and

occasionally wrote an article on the spot. When on circuit he still

found time to write, and kept up a steady supply of matter. I find him

remarking, on one occasion, that he had written five or six leaders in

the 'Pall Mall Gazette' for the week, besides two 'Saturday Review'

articles. Everyone who has had experience of journalism knows that the

time spent in actual writing is a very inadequate measure of the mental

wear and tear due to production. An article may be turned out in an hour

or two; but the work takes off the cream of the day, and involves much

incidental thought and worry. Fitzjames seemed perfectly insensible to

the labour; articles came from him as easily as ordinary talk; the

fountain seemed to be always full, and had only to be turned on to the

desired end. The chief fault which I should be disposed to find with

these articles is doubtless a consequence of this fluency. He has not

taken time to make them short. They often resemble the summing-up of a

judge, who goes through the evidence on both sides in the order in which

it has been presented to him, and then states the 'observations which

arise' and the 'general result' (to use his favourite phrases). A more

effective mode of presenting the case might be reached by at once giving

the vital point and arranging the facts in a new order of subordination.

The articles, however, had another merit which I take to be exceedingly

rare. I have often wondered over the problem, What constitutes the

identity of a newspaper? I do not mean to ask, though it might be asked,

In what sense is the 'Pall Mall Gazette' of to-day the same newspaper

as the 'Pall Mall Gazette' of 1865? but What is meant by the editorial

'We'? The inexperienced person is inclined to explain it as a mere

grammatical phrase which covers in turn a whole series of contributors.

But any writer in a paper, however free a course may be conceded to him,

finds as a fact that the 'we' means something very real and potent. As

soon as he puts on the mantle, he finds that an indefinable change has

come over his whole method of thinking and expressing himself. He is no

longer an individual but the mouthpiece of an oracle. He catches some

infection of style, and feels that although he may believe what he says,

it is not the independent outcome of his own private idiosyncrasy. Now

Fitzjames's articles are specially remarkable for their immunity from

this characteristic. When I read them at the time, and I have had the

same experience in looking over them again, I recognised his words just

as plainly as if I had heard his voice. A signature would to me and to

all in the secret have been a superfluity. And, although the general

public had not the same means of knowledge, it was equally able to

perceive that a large part of the 'Pall Mall Gazette' represented the

individual convictions of a definite human being, who had, moreover,

very strong convictions, and who wrote with the single aim of expressing

them as clearly and vigorously as he could. Fitzjames, as I have shown

sufficiently, was not of the malleable variety; he did not fit easily

into moulds provided by others; but now that his masterful intellect had

full play and was allowed to pour out his genuine thought, it gave the

impress of individual character to the paper in a degree altogether

unusual.

I have one anecdote from Mr. Greenwood which will sufficiently

illustrate this statement. Lord Palmerston died on October 18, 1865. On

October 27 he was buried in Westminster Abbey. Fitzjames came to the

'Pall Mall Gazette' office and proposed to write an article upon the

occasion. He went for the purpose into a room divided by a thin

partition from that in which Mr. Greenwood sat. Mr. Greenwood

unintentionally became aware, in consequence, that the article was

composed literally with prayer and with tears. No one who turns to it

will be surprised at the statement. He begins by saying that we are

paying honour to a man for a patriotic high spirit which enabled him to

take a conspicuous part in building up the great fabric of the British

Empire. But he was also--as all who were taking part in the ceremony

believed in their hearts--a 'man of the world' and 'a man of pleasure.'

Do we, then, disbelieve in our own creed, or are we engaged in a solemn

mockery? Palmerston had not obeyed the conditions under which alone, as

every preacher will tell us, heaven can be hoped for. Patriotism, good

nature, and so forth are, as we are told, mere 'filthy rags' of no avail

in the sight of heaven. If this belief be genuine, the service must be a

mockery. But he fully believes that it is not genuine. The preachers are

inconsistent, but it is an honourable inconsistency. If good and evil be

not empty labels of insincere flattery, it is 'right, meet, and our

bounden duty' to do what is being done even now--to kneel beside the

'great, good, and simple man whom we all deplore,' and to thank God that

it has pleased Him to remove our brother 'out of the miseries of this

sinful world.'

'Our miserable technical rules reach but a little way into the mystery'

which 'dimly foreshadows that whatever we with our small capacities have

been able to love and honour, God, who is infinitely wiser, juster, and

more powerful, will love and honour too, and that whatever we have been

compelled to blame, God, who is too pure to endure unrighteousness, will

deal with, not revengefully or capriciously, but justly and with a

righteous purpose. Whatever else we believe, it is the cardinal

doctrine of all belief worth having that the Judge of all the earth will

do right; that His justice is confined to no rules; that His mercy is

over all the earth; and that revenge, caprice, and cruelty can have no

place in His punishments.'

Few leading articles, I take it, have been written under such conditions

or in such a spirit. The reader must have felt himself face to face with

a real man, profoundly moved by genuine thoughts and troubled as only

the most able and honest men are troubled, by the contrast between our

accustomed commonplaces and our real beliefs. Most of his articles are

written in a strain of solid and generally calm common sense; and some,

no doubt, must have been of the kind compared by his father to singing

without inflated lungs--mere pieces of routine taskwork. Yet, as I have

already shown, by his allegory of the ship, there was always a strong

vein of intense feeling upon certain subjects, restrained as a rule by

his dislike to unveiling his heart too freely and yet making itself

perceptible in some forcible phrase and in the general temper of mind

implied. The great mass of such work is necessarily of ephemeral

interest; and it is painful to turn over the old pages and observe what

a mould of antiquity seems to have spread over controversies so exciting

only thirty years ago. We have gone far in the interval; though it is

well to remember that we too shall soon be out of date, and our most

modern doctrines lose the bloom of novelty. There are, however, certain

lights in which even the most venerable discussions preserve all their

freshness. Without attempting any minute details, I will endeavour to

indicate the points characteristic of my brother's development.

There was one doctrine which he expounds in many connections, and which

had a very deep root in his character. It appears, for example, in his

choice of a profession; decided mainly by the comparison between the

secular and the spiritual man. The problem suggested to him by Lord

Palmerston shows another application of the same mode of thought. What

is the true relation between the Church and the world; or between the

monastic and ascetic view of life represented by Newman and the view of

the lawyer or man of business? To him, as I have said, God seemed to be

more palpably present in a court of justice than in a monastery; and

this was not a mere epigram expressive of a transitory mood. Various

occurrences of the day led him to apply his views to questions connected

with the Established Church. After the 'Essays and Reviews' had ceased

to be exciting there were some eager discussions about Colenso, and his

relations as Bishop of Natal to the Bishop of Capetown. Controversies

between liberal Catholics and Ultramontanes raised the same question

under different aspects, and Fitzjames frequently finds texts upon which

to preach his favourite sermon. It may be said, I think, that there are

three main lines of opinion. In the first place, there was the view of

the liberationists and their like. The ideal is a free Church in a free

State. Each has its own sphere, and, as Macaulay puts it in his famous

essay upon Mr. Gladstone's early book, the State has no more to do with

the religious opinions of its subjects than the North-Western Railway

with the religious opinions of its shareholders. This, represented a

view to which Fitzjames felt the strongest antipathy. It assumed, he

thought, a radically false notion, the possibility of dividing human

life into two parts, religious and secular; whereas in point of fact the

State is as closely interested as the Church in the morality of its

members, and therefore in the religion which determines the morality.

The State can only keep apart permanently from religious questions by

resigning all share in the most profoundly important and interesting

problems of life. To accept this principle would therefore be to degrade

the State to a mere commercial concern, and it was just for that reason

that its acceptance was natural to the ordinary radical who reflected

the prejudices of the petty trader. A State which deserves the name has

to adopt morality of one kind or another, in its criminal legislation,

in its whole national policy, in its relation to education, and more or

less in every great department of life. In his view, therefore, the

ordinary cry for disestablishment was not the recognition of a tenable

and consistent principle, but an attempt to arrange a temporary

compromise which could only work under special conditions, and must

break up whenever men's minds were really stirred. However reluctant

they may be, they will have to answer the question, Is this religion

true or not? and to regulate their affairs accordingly. He often

expresses a conviction that we are all in fact on the eve of such a

controversy, which must stir the whole of society to its base.

We have, then, to choose between two other views. The doctrine of

sovereignty expounded by Austin, and derived from his favourite

philosopher Hobbes, enabled him to put the point in his own dialect. The

difference between Church and State, he said, is not a difference of

spheres, but a difference of sanctions. Their commands have the same

subject matter: but the priest says, 'Do this or be damned'; the lawyer,

'Do this or be hanged.' Hence the complete separation is a mere dream.

Since both bodies deal with the same facts, there must be an ultimate

authority. The only question is which? Will you obey the Pope or the

Emperor, the power which claims the keys of another life or the power

which wields the sword in this. So far he agrees with the Ultramontanes

as against the liberal Catholics. But, though the Ultramontanes put the

issue rightly, his answer is diametrically opposite. He follows Hobbes

and is a thorough-going Erastian. He sympathised to some degree with the

doctrine of Coleridge and Dr. Arnold. They regarded the Church and the

State as in a sense identical; as the same body viewed under different

aspects. Fitzjames held also that State and Church should be identical;

but rather in the form that State and Church were to be one and that one

the State. For this there were two good reasons. In the first place, the

claims of the Church to supernatural authority were altogether baseless.

To bow to those claims was to become slaves of priests and to accept

superstitions. And, in the next place, this is no mere accident. The

division between the priest and layman corresponds to his division

between his 'sentimentalist' and his 'stern, cold man of common sense.'

Now the priest may very well supply the enthusiasm, but the task of

legislation is one which demands the cool, solid judgment of the layman.

He insists upon this, for example, in noticing Professor Seeley's

description of the 'Enthusiasm of Humanity' in 'Ecce Homo.' Such a

spirit, he urges, may supply the motive power, but the essence of the

legislative power is to restrict and constrain, and that is the work not

of the enthusiast, but of the man of business. During this period he

seems to have had some hopes that his principles might be applied. The

lawyers had prevented the clergy from expelling each section of the

Church in turn: and the decision in the 'Essays and Reviews' cases had

settled that free-thinking should have its representatives among

ecclesiastical authorities. At one period he even suggests that, if an

article or two were added to the thirty-nine, some change made in the

ordination service, and a relaxation granted in the terms of

subscription, the Church might be protected from sacerdotalism; and,

though some of the clergy might secede to Rome, the Church of England

might be preserved as virtually the religious department of the State.

He soon saw that any realisation of such views was hopeless. He writes

from India in 1870 to a friend, whom he had advised upon a prosecution

for heresy, saying that he saw clearly that we were drifting towards

voluntaryism. Any other solution was for the present out of the

question; although he continued to regard this as a makeshift compound,

and never ceased to object to disestablishment.

Fitzjames's political views show the same tendencies. He had not

hitherto taken any active interest in politics, taken in the narrower

sense. Our friend Henry Fawcett, with whom he had many talks on his

Christmas visits to Trinity Hall, was rather scandalised by my brother's

attitude of detachment in regard to the party questions of the day.

Fitzjames stood for Harwich in the Liberal interest at the general

election of 1865; but much more because he thought that a seat in

Parliament would be useful in his profession than from any keen interest

in politics. The Harwich electors in those days did not, I think, take

much interest themselves in political principles. Both they and he,

however, seemed dimly to perceive that he was rather out of his element,

and the whole affair, which ended in failure, was of the comic order.

His indifference and want of familiarity with the small talk of politics

probably diminished the effect of his articles in so far as it implied a

tendency to fall back upon principles too general for the average

reader. But there was no want of decided convictions. The death of

Palmerston marked the end of the old era, and was soon succeeded by the

discussions over parliamentary reform which led to Disraeli's measure of

1867. Fitzjames considered himself to be a Liberal, but the Liberals of

those days were divided into various sections, not fully conscious of

the differences which divided them. In one of his 'Cornhill'

articles[98] Fitzjames had attempted to define what he meant by

liberalism. It meant, he said, hostility to antiquated and narrow-minded

institutions. It ought also to mean 'generous and high-minded sentiments

upon political subjects guided by a highly instructed, large-minded and

impartial intellect, briefly the opposite of sordidness, vulgarity, and

bigotry.' The party technically called Liberal were about to admit a

larger popular element to a share of political power. The result would

be good or bad as the new rulers acted or did not act in the spirit

properly called Liberal. Unluckily the flattery of the working-man has

come into fashion; we ignore his necessary limitations, and we deify the

'casual opinions and ineffectual public sentiments' of the

half-educated. 'The great characteristic danger of our days is the

growth of a quiet, ignoble littleness of character and spirit.' We

should aim, therefore, at impressing our new masters 'with a lofty

notion not merely of the splendour of the history of their country, but

of the part which it has to play in the world, and of the spirit in

which it should be played.' He gives as an example a topic to which he

constantly turns. The 'whole fabric' of the Indian Empire, he says, is a

monument of energy, 'skill and courage, and, on the whole, of justice

and energy, such as the world never saw before.' How are we to deal with

that great inheritance bequeathed to us by the courage of heroes and the

wisdom of statesmen? India is but one instance. There is hardly an

institution in the country which may not be renewed if we catch the

spirit which presided over its formation. Liberals have now to be

authors instead of critics, and their solution of such problems will

decide whether their success is to be a curse or a blessing.

This gives the keynote of his writings in the 'Pall Mall Gazette.' He

frankly recognises the necessity, and therefore does not discuss the

advisability, of a large extension of the franchise. He protests only

against the view, which he attributes to Bright, that the new voters are

to enter as victors storming the fortress of old oppressors, holding

that they should be rather cordially invited to take their place in a

stately mansion upheld for eight centuries by their ancestors. When

people are once admitted, however, the pretext for admission is of

little importance. Fitzjames gradually comes to have his doubts. There

is, he says, a liberalism of the intellect and a liberalism of

sentiment. The intellectual liberal is called a 'cold-hearted

doctrinaire' because he asks only whether a theory be true or false; and

because he wishes for statesmanlike reforms of the Church, the

educational system, and the law, even though the ten-pound householder

may be indifferent to them. But the sentimental liberal thought only of

such measures as would come home to the ten-pound householder; and

apparently this kind of liberal was getting the best of it. The various

party manoeuvres which culminated in the Reform Bill begin to excite

his contempt. He is vexed by the many weaknesses of party government.

The war of 1866 suggests reflections upon the military weakness of

England, and upon the inability of our statesmen to attend to any object

which has no effect upon votes. The behaviour of the Conservative

Government in the case of the Hyde Park riots of the same year excites

his hearty contempt. He is in favour of the disestablishment of the

Irish Church, and lays down substantially the principles embodied in

Mr. Gladstone's measure. But he sympathises more and more with Carlyle's

view of our blessed constitution. We have the weakest and least

permanent government that ever ruled a great empire, and it seems to be

totally incapable of ever undertaking any of the great measures which

require foresight and statesmanship. He compares in this connection the

construction of legal codes in India with our inability to make use of a

great legal reformer, such as Lord Westbury, when we happen to get him.

Sentiments of this kind seem to grow upon him, although they are not

expressed with bitterness or many personal applications. It is enough to

say that his antipathy to sentimentalism, and to the want of high

patriotic spirit in the Manchester school of politics, blends with a

rather contemptuous attitude towards the parliamentary system. It

reveals itself to him, now that he is forced to become a critic, as a

petty game of wire-pulling and of pandering to shallow popular

prejudices of which he is beginning to grow impatient.

I may finish the account of his literary activity at this time by saying

that he was still contributing occasional articles to 'Fraser' and to

the 'Saturday Review.' The 'Saturday Review' articles were part of a

scheme which he took up about 1864. It occurred to him that he would be

employing himself more profitably by writing a series of articles upon

old authors than by continuing to review the literature of the day. He

might thus put together a kind of general course of literature. He wrote

accordingly a series of articles which involved a great amount of

reading as he went through the works of some voluminous authors. They

were published as 'Horae Sabbaticae' in 1892, in three volumes, without

any serious revision. It is unnecessary to dwell upon them at any

length. It would be unfair to treat them as literary criticism, for

which he cared as little as it deserves. He was very fond, indeed, of

Sainte-Beuve, but almost as much for the information as for the

criticism contained in the 'Causeries.' He had always a fancy for such

books as Gibbon's great work which give a wide panoramic view of

history, and defended his taste on principle. These articles deal with

some historical books which interested him, but are chiefly concerned

with French and English writers from Hooker to Paley and from Pascal to

De Maistre, who dealt with his favourite philosophical problems. Their

peculiarity is that the writer has read his authors pretty much as if he

were reading an argument in a contemporary magazine. He gives his view

of the intrinsic merits of the logic with little allowance for the

historical position of the author. He has not made any study of the

general history of philosophy, and has not troubled himself to compare

his impressions with those of other critics. The consequence is that

there are some very palpable misconceptions and failure to appreciate

the true relation to contemporary literature of the books criticised. I

can only say, therefore, that they will be interesting to readers who

like to see the impression made upon a masculine though not specially

prepared mind by the perusal of certain famous books, and who relish an

independent verdict expressed in downright terms without care for the

conventional opinion of professional critics.

His thoughts naturally turned a good deal to various projects connected

with his writing. In July 1867 he writes that he has resolved to

concentrate himself chiefly upon the 'Pall Mall Gazette' for the

present. He is, however, to complete some schemes already begun. The

'Fraser' articles upon religious topics will make one book; then there

are the 'Horae Sabbaticae' articles, of which he has already written

fifty-eight, and which will be finished in about twenty more. But,

besides this, he has five law-books in his mind, including a rewriting

of the book on criminal law and a completion of the old book upon the

administrative history. Others are to deal with martial law, insanity,

and the relations of England to India and the colonies. Beyond these he

looks at an 'awful distance' upon a great book upon law and morals. He

is beginning to doubt whether literature would not be more congenial

than law, if he could obtain some kind of permanent independent

position. Law, no doubt, has given him a good training, but the

pettiness of most of the business can hardly be exaggerated; and he

hardly feels inclined to make it the great aim of his life. He had,

however, risen to a distinctly higher position on his circuit; and just

at this time he was engaged in one of the cases which, as usual, brought

During the latter part of 1861 he was hard at work upon the preparation