CHAPTER V

_LAST YEARS AT THE BAR_

I. FIRST OCCUPATIONS IN ENGLAND

Fitzjames had passed the winter of 1871-2 in Calcutta with Henry

Cunningham; his wife having returned to England in November. He followed

her in the spring, sailing from Bombay on April 22, 1872. To most people

a voyage following two years and a half of unremitting labour would have

been an occasion for a holiday. With him, however, to end one task was

the same thing as to begin another, and he was taking up various bits of

work before India was well out of sight. He had laid in a supply of

literature suitable both for instruction and amusement. The day after

leaving Bombay he got through the best part of a volume of Sainte-Beuve.

He had also brought a 'Faust' and Auerbach's 'Auf der 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,[119] who saw in all history a conflict between

protection and authority on the one hand and liberty and scepticism on

the other.

J. S. Mill had begun as an unflinching advocate of the stern old

utilitarianism of his father and Ricardo. He had become, as Fitzjames

observes, 'humane' or 'sentimental' in later years. He tried, as his

critics observe, to soften the old economic doctrines and showed a

certain leaning to socialism. In regard to this part of his teaching, in

which Fitzjames took little interest, I shall only notice that, whatever

his concessions, he was still in principle an 'individualist.' He

maintained against the Socialists the advantages of competition; and

though his theory of the 'unearned increment' looks towards the

socialist view of nationalisation of the land, he seems to have been

always in favour of peasant proprietorship, and of co-operation as

distinguished from State socialism. Individualism, in fact, in one of

its senses, for like other popular phrases it tends to gather various

shades of meaning, was really the characteristic of the utilitarian

school. Thus in philosophy they were 'nominalists,' believing that the

ultimate realities are separate things, and that abstract words are mere

signs calling up arbitrary groups of things. Politically, they are

inclined to regard society as an 'aggregate,' instead of an 'organism.'

The ultimate units are the individual men, and a nation or a church a

mere name for a multitude combined by some external pressure into a

collective mass of separate atoms.[120] This is the foundation of Mill's

political theories, and explains the real congeniality of the let-alone

doctrines to his philosophy. It gives, too, the key-note of the book

upon 'Liberty,' which Fitzjames took for his point of assault. Mill had

been profoundly impressed by Tocqueville, and, indeed, by an order of

reflections common to many intelligent observers. What are to be the

relations between democracy and intellectual culture? Many distinguished

writers have expressed their forebodings as to the future. Society is in

danger of being vulgarised. We are to be ground down to uniform and

insignificant atoms by the social mill. The utilitarians had helped the

lower classes to wrest the scourge from the hands of their oppressors.

Now the oppressed had the scourge in their own hands; how would they

apply it? Coercion looked very ugly in the hands of a small privileged

class; but when coercion could be applied by the masses would they see

the ugliness of it? Would they not use the same machinery in order to

crush the rich and the exalted, and take in the next place to crushing

each other? Shall we not have a dead level of commonplace and suffer, to

use the popular phrase, from a 'tyranny of the majority,' more universal

and more degrading than the old tyranny of the minority? This was the

danger upon which Mill dwelt in his later works. In his 'Liberty' he

suggests the remedy. It is nothing less than the recognition of a new

moral principle. Mankind, he said, individually or collectively, are

justified in interference with others only by the need of

'self-protection.' We may rightfully prevent a man from hurting his

neighbour, but not from hurting himself. If we carefully observe this

precaution the individual will have room to expand, and we shall cease

to denounce all deviations from the common type.

Here Fitzjames was in partial sympathy with his antagonist. He reviewed

'Liberty' in the 'Saturday Review' upon its first appearance; and

although making certain reservations, reviewed it with warm approbation.

Mill and he were agreed upon one point. A great evil, perhaps the one

great evil of the day, as Fitzjames constantly said, is the prevalence

of a narrow and mean type of character; the decay of energy; the

excessive devotion to a petty ideal of personal comfort; and the

systematic attempt to turn our eyes away from the dark side of the

world. A smug, placid, contemptible optimism is creeping like a blight

over the face of society, and suppressing all the grander aspirations of

more energetic times. But in proportion to Fitzjames's general agreement

upon the nature of the evil was the vehemence of his dissent from the

suggested remedy. He thought that, so far from meeting the evil, it

tended directly to increase it. To diminish the strength of the social

bond would be to enervate not to invigorate society. If Mill's

principles could be adopted, everything that has stimulated men to

pursue great ends would lose its interest, and we should become a more

contemptible set of creatures than we are already.

I have tried to show how these convictions had been strengthened by

circumstances. Fitzjames's strong patriotic feeling, his pride in the

British race and the British empire, generated a special antipathy to

the school which, as he thought, took a purely commercial view of

politics; which regarded the empire as a heavy burthen, because it did

not pay its expenses, and which looked forward to a millennium of small

shopkeepers bothered by no taxes or tariffs. During the 'Pall Mall

Gazette' period he had seen such views spreading among the class newly

entrusted with power. Statesmen, in spite of a few perfunctory attempts

at better things, were mainly engaged in paltry intrigues, and in

fishing for votes by flattering fools. The only question was whether the

demagogues who were their own dupes were better or worse than the

demagogues who knew themselves to be humbugs. Carlyle's denunciations of

the imbecility of our system began to be more congenial to his temper,

and encouraged him in his heresy. Carlyle's teachings were connected

with erroneous theories indeed, and too little guided by practical

experience. But the general temper which they showed, the contempt for

slovenly, haphazard, hand-to-mouth modes of legislation, the love of

vigorous administration on broad, intelligible principles, entirely

expressed his own feeling. Finally, in India he had, as he thought,

found his ideal realised. There, with whatever shortcomings, there was

at least a strong Government; rulers who ruled; capable of doing

business; of acting systematically upon their convictions; strenuously

employed in working out an effective system; and not trammelled by

trimming their sails to catch every temporary gust of sentiment in a

half-educated community. His book, he often said, was thus virtually a

consideration of the commonplaces of British politics in the light of

his Indian experience. He wished, he says in one of his letters, to

write about India; but as soon as he began he felt that he would be

challenged to give his views upon these preliminary problems: What do

you think of liberty, of toleration, of ruling by military force, and so

forth? He resolved, therefore, to answer these questions by themselves.

I must add that this feeling was coloured by Fitzjames's personal

qualities. He could never, as I have pointed out, like Mill himself; he

pronounced him to be 'cold as ice,' a mere 'walking book,' and a man

whose reasoning powers were out of all proportion to his 'seeing

powers.' If I were writing about Mill I should think it necessary to

qualify this judgment of a man who might also be described as sensitive

to excess, and who had an even feminine tenderness. But from Fitzjames's

point of view the judgment was natural enough. The two men could never

come into cordial relations, and the ultimate reason, I think, was what

I should call Mill's want of virility. He might be called 'cold,' not as

wanting in tenderness or enthusiasm, but as representing a kind of

philosophical asceticism. Whether from his early education, his recluse

life, or his innate temperament, half the feelings which moved mankind

seemed to him simply coarse and brutal. They were altogether

detestable--not the perversions which, after all, might show a masculine

and powerful nature. Mill's view, for example, seemed to be that all the

differences between the sexes were accidental, and that women could be

turned into men by trifling changes in the law. To a man of ordinary

flesh and blood, who had grounded his opinions, not upon books, but upon

actual experience of life, such doctrines appear to be not only

erroneous, but indicative of a hopeless thinness of character. And so,

again, Fitzjames absolutely refused to test the value of the great

patriotic passions which are the mainsprings of history by the mere

calculus of abstract concepts which satisfied Mill. Fitzjames, like

Henry VIII., 'loved a man,' and the man of Mill's speculations seemed to

be a colourless, flaccid creature, who required, before all things, to

have some red blood infused into his veins.

Utilitarianism of the pedantic kind--the utilitarianism which

substitutes mere lay figures for men and women--or the utilitarianism

which refuses to estimate anything that cannot be entered in a ledger,

was thus altogether abhorrent to Fitzjames. And yet he was, in his way,

a utilitarian in principle; and his reply to Mill must be given in terms

of utilitarianism. To do that, it was only necessary to revert to the

original principles of the sect, and to study Austin and Bentham with a

proper infusion of Hobbes. Then it would be possible to construct a

creed which, whatever else might be said of it, was not wanting in

vigour or in danger of substituting abstractions for concrete realities.

I shall try to indicate the leading points of this doctrine without

following the order partly imposed upon Fitzjames by his controversial

requirements. Nor shall I inquire into a question not always quite

clear, namely, whether his interpretation of Mill's principles was

altogether correct.

One fundamental ground is common to Fitzjames and his antagonist. It is

assumed in Austin's analysis of 'law,' which is accepted by both.[121]

Law properly means a command enforced by a 'sanction.' The command is

given by a 'sovereign,' who has power to reward or punish, and is made

effectual by annexing consequences, painful or pleasurable, to given

lines of conduct. The law says, 'Thou shalt not commit murder'; and

'shalt not' means 'if you commit murder you shall be hanged.' Nothing

can be simpler or more obviously in accordance with common sense.

Abolish the gaoler and the hangman and your criminal law becomes empty

words. Moreover, the congeniality of this statement to the individualist

point of view is obvious. Consider men as a multitude of independent

units, and the problem occurs, How can they be bound into wholes? What

must be the principle of cohesion? Obviously some motive must be

supplied which will operate upon all men alike. Practically that means a

threat in the last resort of physical punishment. The bond, then, which

keeps us together in any tolerable order is ultimately the fear of

force. Resist, and you will be crushed. The existence, therefore, of

such a sanction is essential to every society; or, as it may be

otherwise phrased, society depends upon coercion.

This, moreover, applies in all spheres of action. Morality and religion

'are and always must be essentially coercive systems.'[122] They

restrain passion and restrain it by appealing to men's hopes and

fears--chiefly to their fears. For one man restrained by the fear of the

criminal law, a vast number are restrained by the 'fear of the

disapprobation of their neighbours, which is the moral sanction, or by

the fear of punishment in a future state of existence, which is the

religious sanction, or by the fear of their own disapprobation, which

may be called the conscientious sanction, and may be regarded as a

compound case of the other 'two.'[123] An objection, therefore, to

coercion would be an objection to all the bonds which make association

possible; it would dissolve equally states, churches, and families, and

make even the peaceful intercourse of individuals impossible. In point

of fact, coercion has built up all the great churches and nations.

Religions have spread partly by military power, partly by 'threats as to

a future state,'[124] and always by the conquest of a small number of

ardent believers over the indifferent mass. Men's lives are regulated by

customs as streams are guided by dams and embankments. The customs like

the dams are essentially restraints, and moreover restraints imposed by

a small numerical minority, though they ultimately become so familiar to

the majority that the restraint is not felt. All nations have been built

up by war, that is, by coercion in its sternest form. The American civil

war was the last and most striking example. It could not ultimately be

settled by conveyancing subtleties about the interpretation of clauses

in the Constitution, but by the strong hand and the most energetic

faith.[125] War has determined whether nations are to be and what they

are to be. It decides what men shall believe and in what mould their

religion, laws, morals, and the whole tone of their lives shall be

cast.[126]

Nor does coercion disappear with the growth of civilisation. It is not

abolished but transformed. Lincoln and Moltke commanded a force which

would have crushed Charlemagne and his paladins and peers like so many

eggshells.[127] Scott, in the 'Fair Maid of Perth,' describes the

'Devil's Dick of Hellgarth' who followed the laird of Wamphray, who rode

with the lord of Johnstone, who was banded with the Earl of Douglas, and

earl, and lord, and laird, and the 'Devil's Dick' rode where they

pleased and took what they chose. Does that imply that Scotland was then

subject to force, and that now force has disappeared?

No; it means that the force that now stands behind a simple policeman

is to the force of Douglas and his followers as the force of a line of

battle ship to the force of an individual prize-fighter.[128] It works

quietly precisely because it is overwhelming. Force therefore underlies

and permeates every human institution. To speak of liberty taken

absolutely as good is to condemn all social bonds. The only real

question is in what cases liberty is good, and how far it is good.

Buckle's denunciation of the 'spirit of protection' is like praising the

centrifugal and reviling the centripetal force. One party would be

condemning the malignity of the force which was dragging us all into the

sun, and the other the malignity of the force which was driving us madly

into space. The seminal error of modern speculation is shown in this

tendency to speak as advocates of one of different forces, all of which

are necessary to the harmonious government of conduct.[129]

This insistence upon the absolute necessity of force or coercion, upon

the theory that, do what you will, you alter only the distribution, not

the general quantity of force, is the leading principle of the book.

Compulsion and persuasion go together, but the 'lion's share' of all the

results achieved by civilisation is due to compulsion. Parliamentary

government is a mild and disguised form of compulsion[130] and reforms

are carried ultimately by the belief that the reformers are the

strongest. Law in general is nothing but regulated force,[131] and even

liberty is from the very nature of things dependent upon power, upon the

protection, that is, of a powerful, well-organised intelligent

government.[132] Hobbes's state of war simply threw an unpopular truth

'into a shape likely to be misunderstood.' There must be war, or evils

worse than war. 'Struggles there must always be unless men stick like

limpets or spin like weathercocks.'[133]

Hence we have our problem: liberty is good, not as opposed to coercion

in general, but as opposed to coercion in certain cases. What, then, are

the cases? Force is always in the background, the invisible bond which

corresponds to the moral framework of society. But we have still to

consider what limits may be laid down for its application. The general

reply of a Utilitarian must of course be an appeal to 'expediency.'

Force is good, says Fitzjames, following Bentham again, when the end to

be attained is good, when the means employed are efficient, and when,

finally, the cost of employing them is not excessive. In the opposite

cases, force of course is bad. Here he comes into conflict with Mill.

For Mill tries to lay down certain general rules which may define the

rightful limits of coercive power. Now there is a _prima facie_ ground

of suspicion to a sound utilitarian about any general rules. Mill's

rules were of course regarded by himself as based upon experience. But

they savoured of that absolute _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.[134] We cannot therefore be

indifferent to character because accidentally manifested in ways which

do or do not directly and primarily affect others. Drunkenness, for

example, may hurt a man's health or it may make him a brute to his wife

or neglectful of his social duties. As moralists we condemn the

drunkard, not the results of his conduct, which may be this or that

according to circumstances. To regard Mill's principle as a primary

moral axiom is, therefore, contradictory. It nullifies all law, moral

or other, so far as it extends. But if Mill's admission as to the

'unfavourable opinions' is meant to obviate this conclusion, his theory

merely applies to positive law. In that case it follows that the

criminal law must be entirely divorced from morality. We shall punish

men not as wicked but as nuisances. To Fitzjames this position was

specially repulsive. His interest in the criminal law was precisely that

it is an application of morality to conduct. Make it a mere machinery

for enabling each man to go his own way, virtuous or vicious, and you

exclude precisely the element which constituted its real value. Mill,

when confronted with some applications of his theory, labours to show

that though we have no right to interfere with 'self-regarding' vice, we

may find reasons for punishing conspiracies in furtherance of vice. 'I

do not think,' replies Fitzjames, 'that the state ought to stand

bandying compliments with pimps.' It ought not to say that it can

somehow find an excuse for calling upon them to desist from 'an

experiment in living' from which it dissents. 'My feeling is that if

society gets its grip on the collar of such a fellow, it should say to

him, "You dirty fellow, it may be a question whether you should be

suffered to remain in your native filth untouched, or whether my opinion

should be printed by the lash on your bare back. That question will be

determined without the smallest reference to your wishes or feelings,

but as to the nature of my opinion about you there can be no

doubt."'[135]

Hence the purely 'deterrent' theory of punishment is utterly

unsatisfactory. We should punish not simply to prevent crime, but to

show our hatred of crime. Criminal law is 'in the nature of a

persecution of the grosser forms of vice, and an emphatic assertion of

the principle that the feeling of hatred and the desire of vengeance

above mentioned, (i.e. the emotion, whatever its proper name, produced

by the contemplation of vice on healthily constituted minds) 'are

important elements in human nature, which ought in such cases to be

satisfied in a regular public and legal manner.[136] This is one of the

cases in which Fitzjames fully recognises the importance of some of

Mill's practical arguments, though he disputes their position in the

theory. The objections to making men moral by legislation are, according

to him, sufficiently recognised by the Benthamite criterion condemning

inadequate or excessively costly means. The criminal law is necessarily

a harsh and rough instrument. To try to regulate the finer relations of

life by law, or even by public opinion, is 'like trying to pull an

eyelash out of a man's eye with a pair of tongs: they may pull out the

eye, but they will never get hold of the eyelash.'[137] But it is not

the end, but the means that are objectionable. Fitzjames does not object

in principle even to sumptuary laws. He can never, he says, look at a

lace machine, and think of all the toil and ingenuity wasted, with

patience.[138] But he admits that repressive laws would be impossible

now, though in a simpler age they may have been useful. Generally, then,

the distinction between 'self-regarding' and 'extra-regarding' conduct

is quite relevant, so far as it calls attention to the condition of the

probable efficacy of the means at our disposal. But it is quite

irrelevant in a definition of the end. The end is to suppress

immorality, not to obviate particular inconveniences resulting from

immorality; and one great use of the criminal law is that, in spite of

its narrow limitations, it supplies a solid framework round which public

opinion may consolidate itself. The sovereign is, in brief, a great

teacher of the moral law so far as his arm can reach.

The same principles are applied in a part of the book which probably

gave more offence than any other to his Liberal opponents. The State

cannot be impartial in regard to morals, for morality determines the

bonds which hold society together. Can it, then, be indifferent in

regard to religions? No; for morality depends upon religion, and the

social bond owes its strength to both. The state can be no more an

impartial bystander in one case than in the other. The 'free Church in a

free State' represents a temporary compromise, not an ultimate ideal.

The difference between Church and State is not a difference of

provinces, but a difference of 'sanctions.' The spiritual and the

secular sanctions apply to the same conduct of the same men. Both claim

to rule all life, and are ultimately compelled to answer the fundamental

questions. To separate them would be to 'cut human life in two,' an

attempt ultimately impossible and always degrading. To answer

fundamental questions, says Mill, involves a claim to infallibility. No,

replies Fitzjames, it is merely a claim to be right in the particular

case, and in a case where the responsibility of deciding is inevitably

forced upon us. If the state shrinks from such decisions, it will sink

to be a mere police, or, more probably, will at last find itself in a

position where force will have to decide what the compromise was meant

to evade. Once more, therefore, the limits of state action must be drawn

by expediency, not by an absolute principle. The Benthamite formula

applies again. Is the end good, and are the means adequate and not

excessively costly? Mill's absolute principle would condemn the levy of

a shilling for a school, if the ratepayer objected to the religious

teaching. Fitzjames's would, he grants, justify the Inquisition, unless

its doctrines could be shown to be false or the means of enforcing them

excessive or inadequate--issues, he adds, which he would be quite ready

to accept.[139] Has, then, a man who believes in God and a future life a

moral right to deter others from attacking those doctrines by showing

disapproval? Yes, 'if and in so far as his opinions are true.'[140] To

attack opinions on which the framework of society depends is, and ought

to be, dangerous. It should be done, if done at all, sword in hand.

Otherwise the assailant deserves the fate of the Wanderer in Scott's

ballad:

Curst be the coward that ever he was born

That did not draw the sword before he blew the horn.[141]

Such opinions seem to justify persecution in principle. Fitzjames

discusses at some length the case of Pontius Pilate, to which I may

notice he had often applied parallels from Ram Singh and other Indian

experiences. Pontius Pilate was in a position analogous to that of the

governor of a British province. He decides that if Pilate had acted upon

Mill's principles he would have risked 'setting the whole province in a

blaze.' He condemns the Roman persecutors as 'clumsy and brutal'; but

thinks that they might have succeeded 'in the same miserable sense in

which the Spanish Inquisition succeeded,' had they been more systematic,

and then would at least not have been self-stultified. Had the Roman

Government seen the importance of the question, the strife, if

inevitable, might have been noble. It would have been a case of

'generous opponents each working his way to the truth from opposite

sides,' not the case of a 'touching though slightly hysterical victim,

mauled from time to time by a sleepy tyrant in his intervals of

fury.'[142] Still, it will be said, there would have been persecution. I

believe that there was no man living who had a more intense aversion

than Fitzjames to all oppression of the weak, and, above all, to

religious oppression. It is oddly characteristic that his main

precedent is drawn from our interference with Indian creeds. We had

enforced peace between rival sects; allowed conversion; set up schools

teaching sciences inconsistent with Hindoo (and with Christian?)

theology; protected missionaries and put down suttee and human

sacrifices. In the main, therefore, we had shown 'intolerance' by

introducing toleration. Fitzjames had been himself accused, on the

occasion of his Native Marriages Bill, with acting upon principles of

liberty, fraternity, and equality. His point, indeed, is that a

government, even nervously anxious to avoid proselytism, had been

compelled to a upon doctrines inconsistent with the religions of its

subjects. I will not try to work out this little logical puzzle. In

fact, in any case, he would really have agreed with Mill, as he admits,

in regard to every actual question of the day. He admitted that the

liberal contention had been perfectly right under the special

circumstances. Their arguments were quite right so long as they took the

lower ground of expediency, though wrong when elevated to the position

of ultimate principles, overruling arguments from expediency.[143]

Toleration, he thinks, is in its right place as softening and moderating

an inevitable conflict. The true ground for moral tolerance is that

'most people have no right to any opinion whatever upon these subjects,'

and he thinks that 'the ignorant preacher' who 'calls his betters

atheists is not guilty of intolerance, but of rudeness and

ignorance.'[144]

I must confess that this makes upon me the impression that Fitzjames was

a little at a loss for good arguments to support what he felt to be the

right mode of limiting his principles. The difficulty was due, I think,

to the views which he shared with Mill. The utilitarian point of view

tends to lower the true ground of toleration, because it regards

exclusively the coercive elements of law. I should hold that free

thought is not merely a right, but a duty, the exercise of which should

be therefore encouraged as well as permitted; and that the inability of

the coarse methods of coercion to stamp out particular beliefs without

crushing thought in general, is an essential part of the argument, not a

mere accident of particular cases. Our religious beliefs are not

separate germs, spreading disease and capable of being caught and

suppressed by the rough machinery of law, but parts of a general process

underlying all law, and capable of being suppressed only at the cost of

suppressing all mental activity. The utilitarian conception dwells too

much upon the 'sanctions,' and too little on the living spirit, of which

they are one expression.

Fitzjames's view may so far be summed up by saying that he denies the

possibility of making the state a neutral in regard to the moral and

religious problems involved. Morality, again, coincides with 'utility ';

and the utility of laws and conduct in general is the criterion which we

must apply to every case by the help of the appropriate experience. We

must therefore reject every general rule in the name of which this

criterion may be rejected. This applies to Mill's doctrine of equality,

as well as to his doctrine of non-interference. I pass over some

comparatively commonplace remarks upon the inconsistency of 'liberty'

and 'equality.' The most unequivocal contradiction comes out in regard

to Mill's theory of the equality of the sexes. There was no dogma to

which Mill was more attached or to which Fitzjames was more decidedly

opposed. The essence of the argument, I take it, is this:[145]

A just legislator, says Mill, will treat all men as equals. He must

mean, then, that there are no such differences between any two classes

of men as would affect the expediency of the applying the same laws to

both. What is good for one must therefore be good for another. Now, in

the first place, as Fitzjames urges, there is no presumption in favour

of this hypothesis; and, in the next place, it is obviously untrue in

some cases. Differences of age, for example, must be taken into account

unless we accept the most monstrous conclusions. How does this apply to

the case of sex? Mill held that the difference in the law was due simply

to the superiority of men to women in physical strength. Fitzjames

replies that men are stronger throughout, stronger in body, in nerve and

muscle, in mind and character. To neglect this fact would be silly; but

if we admit it, we must admit its relevance to legislation. Marriage,

for example, is one of the cases with which law and morality are both

compelled to deal. Now the marriage contract necessarily involves the

subordination of the weaker to the stronger. This, says Fitzjames, is as

clearly demonstrable as a proposition of Euclid.[146] For, either the

contract must be dissoluble at will or the rule must be given to one,

and if to one, then, as every one admits, to the husband. We must then

choose between entire freedom of divorce and the subordination of the

wife. If two people are indissolubly connected and differ in opinions,

one must give way. The wife, thinks Fitzjames, should give way as the

seaman should give way to his captain; and to regard this as humiliating

is a mark not of spirit but of a 'base, unworthy, mutinous

disposition.'[147]

If, to avoid this, you made marriage dissoluble, you would really make

women the slaves of their husbands. In nine cases out of ten, the man is

the most independent, and could therefore tyrannise by the threat of

dismissing his wife. By trying to forbid coercion, you do not really

suppress it, but make its action arbitrary.

He apologises to a lady in a letter referring to another controversy

upon the same subject in which he had used rather strong language about

masculine 'superiority.' 'When a beast is stirred up,' he says, 'he

roars rather too loud,' and 'this particular beast loves and honours and

worships women more than he can express, and owes most of the happiness

of his life to them.' By 'superior' he only meant 'stronger'; and he

only urges a 'division of labour,' and a correspondence between laws and

facts. This was, I think, strictly true, and applies to other parts of

his book. Partly from pugnacity and partly from contempt of

sentimentalism, he manages to put the harsher side of his opinions in

front. This appears as we approach the ultimate base of his theory.

I have spoken more than once of Fitzjames's respect for Hobbes. For

Hobbes's theory of sovereignty, and even its application by the

ultramontane De Maistre, had always an attraction for him. Hobbes, with

his logical thoroughness, seems to carry the foundations of policy down

to the solid rock-bed of fact. Life is a battle; it is the conflict of

independent atoms; with differing aims and interests. The strongest, in

one way or other, will always rule. But the conflict may be decided

peacefully. You may show your cards instead of playing out the game; and

peace may be finally established though only by the recognition of a

supreme authority. The one question is what is to be the supreme

authority? With De Maistre it was the Church; with Fitzjames as with

Hobbes it was the State. The welfare of the race can only be secured by

order; order only by the recognition of a sovereign; and when that

order, and the discipline which it implies, are established, force does

not cease to exist: on the contrary, it is enormously increased in

efficacy; but it works regularly and is distributed harmoniously and

systematically instead of appearing in the chaotic clashing of countless

discordant fragments. The argument, which is as clear as Euclid in the

case of marriage, is valid universally. Society must be indissoluble;

and to be indissoluble must recognise a single ultimate authority in all

disputes. Peace and order mean subordination and discipline, and the

only liberty possible is the liberty which presupposes such 'coercion.'

The theory becomes harsh if by 'coercion' we mean simply 'physical

force' or the fear of pain. A doctrine which made the hangman the

ultimate source of all authority would certainly show brutality. But

nothing could be farther from Fitzjames's intention than to sanction

such a theory. His 'coercion' really includes an appeal to all the

motives which make peace and order preferable to war and anarchy. But it

is, I also think, a defect in the book that he does not clearly explain

the phrase, and that it slips almost unconsciously into the harsher

sense. He tells us, for example, that 'force is dependent upon

persuasion and cannot move without it.'[148] Nobody can rule without

persuading his fellows to place their force at his disposal; and

therefore he infers 'persuasion is a kind of force.' It acts by showing

people the consequences of their conduct. He calls controversy, again,

an 'intellectual warfare,' which, he adds, is far more searching and

effective than legal persecution. It roots out the weaker opinion. And

so, when speaking of the part played by coercion in religious

developments, he says that 'the sources of religion lie hid from us.

All that we know is that now and again in the course of ages someone

sets to music the tune which is haunting millions of ears. It is caught

up here and there, and repeated till the chorus is thundered out by a

body of singers able to drown all discords, and to force the unmusical

mass to listen to them.'[149] The word 'force' in the last sentence

shows the transition. Undoubtedly force in the sense of physical and

military force has had a great influence in the formation both of

religions and nations. We may say that such force is 'essential'; as a

proof of the energy and often as a condition of the durability of the

institutions. But the question remains whether it is a cause or an

effect; and whether the ultimate roots of success do not lie in that

'kind of force' which is called 'persuasion'; and to which nobody can

object. If coercion be taken to include enlightenment, persuasion,

appeals to sympathy and sentiment, and to imagination, it implies an

ultimate social groundwork very different from that generally suggested

by the word. The utilitarian and individualist point of view tends

necessarily to lay stress upon bare force acting by fear and physical

pain. The utilitarian 'sanctions' of law must be the hangman and the

gaoler. So long as society includes unsocial elements it must apply

motives applicable to the most brutal. The hangman uses an argument

which everyone can understand. In this sense, therefore, force must be

the ultimate sanction, though it is equally true that to get the force

you must appeal to motives very different from those wielded by the

executioner. The application of this analogy of criminal law to

questions of morality and religion affects the final conclusions of the

book.

Fitzjames's whole position, if I have rightly interpreted him, depends

essentially upon his moral convictions. The fault which he finds with

Mill is precisely that Mill's theory would unmoralise the state. The

state, that is, would be a mere association for mutual insurance against

injury instead of an organ of the moral sense of the community. What,

then, is morality? How are we to know what is right and wrong, and what

are our motives for approving and disapproving the good and the bad?

Fitzjames uses phrases, especially in his letters, where he is not

arguing against an adversary, which appear to be inconsistent, if not

with utilitarianism, at least with the morality of mere expediency. Lord

Lytton, some time after this, wrote to him about his book, and he

replies to the question, 'What is a good man?'--'a man so constituted

that the pleasure of doing a noble thing and the pain of doing a base

thing are to him the greatest of pleasures and pains.' He was fond, too,

of quoting, with admiration, Kant's famous saying about the sublimity of

the moral law and the starry heavens. The doctrine of the 'categorical

imperative' would express his feelings more accurately than Bentham's

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.'[150] This, again, means that the criterion is the effect of

conduct upon happiness. Here, however, we have the old difficulty that

the estimate of happiness varies widely. Fitzjames accepts this view to

some extent. Happiness has no one definite meaning, although he admits,

in point of fact, there is sufficient resemblance between men to enable

them to form such morality as actually exists.

But is such morality satisfactory? Can it, for example, give sufficient

reasons for self-sacrifice--that is, neglect of my own happiness?

Self-sacrifice, he replies, in a strict sense, is impossible; for it

could only mean acting in opposition to our own motives of whatever

kind--which is an absurdity.[151] But among real motives he admits

benevolence, public spirit, and so forth, and fully agrees that they are

constantly strong enough to overpower purely self-regarding motives. So

far, it follows, the action of such motives may be legitimately assumed

by utilitarians. He is, therefore, not an 'egoistic' utilitarian. He

thinks, as he says in a letter referring to his book, that he is 'as

humane and public-spirited as his neighbours.' A man must be a wretched

being who does not care more for many things outside his household than

for his own immediate pains and pleasures. Had he been called upon to

risk health or life for any public object in India, and failed to

respond, he would never have had a moment's peace afterwards. This was

no more than the truth, and yet he would sometimes call himself

'selfish' in what I hold to be a non-natural sense. He frequently

complains of the use of such words as 'selfishness' and 'altruism' at

all. Selfishness, according to him, could merely mean that a man acts

from his own motives, and altruism would mean that he acted from

somebody else's motives. One phrase, therefore, would be superfluous,

and the other absurd. He insists, however, that, as he puts it, 'self is

each man's centre, from which he can no more displace himself than he

can leap off his own shadow.'[152] Since estimates of happiness differ,

the morality based upon them will also differ.[153] And from selfishness

in this sense two things follow. First, I have to act upon my own

individual conception of morality.

If, then, I meet a person whose morality is different from mine, and

who justifies what I hold to be vices, I must behave according to my own

view. If I am his ruler, I must not treat him as a person making a

possibly useful experiment in living, but as a vicious brute, to be

restrained or suppressed by all available means. And secondly, since

self is the centre, since a 'man works from himself outwards,' it is

idle to propose a love of humanity as the guiding motive to morality.

'Humanity is only "I" writ large, and zeal for humanity generally means

zeal for My Notions as to what men should be and how they should

live.'[154]

This, therefore, leads to the ultimate question: What, in the

utilitarian phrase, is the 'sanction' of morality? Here his answer is,

on one side at least, emphatic and unequivocal. Mill and the

positivists, according to him,[155] propose an utterly unsatisfactory

motive for morality. The love of 'humanity' is the love of a mere

shadowy abstraction. We can love our family and our neighbours; we

cannot really care much about the distant relations whom we shall never

see. Nay, he holds that a love of humanity is often a mask for a dislike

of concrete human beings. He accuses Mill of having at once too high and

too low an opinion of mankind.[156] Mill, he thinks, had too low an

estimate of the actual average Englishman, and too high an estimate of

the ideal man who would be perfectly good when all restraints were

removed. He excused himself for contempt of his fellows by professing

love for an abstraction. To set up the love of 'humanity,' in fact, as a

governing principle is not only impracticable, but often mischievous. A

man does more good, as a rule, by working for himself and his family,

than by acting like a 'moral Don Quixote,[157] who is capable of making

love for men in general the ground of all sorts of violence against men

in particular.' Indeed, there are many men whom we ought not to love. It

is hypocrisy to pretend to love the thoroughly vicious. 'I do not love

such people, but hate them,' says Fitzjames; and I do not want to make

them happy, because I could only do so by 'pampering their vices.'[158]

Here, therefore, he reaches the point at which his utilitarian and his

Puritanical prepossessions coincide. All law, says the utilitarian,

implies 'sanctions'--motives equally operative upon all members of

society; and, as the last resort, so far as criminal law is concerned,

the sanction of physical suffering. What is the corresponding element in

the moral law? To this, says Fitzjames, no positivist can give a fair

answer. He has no reply to anyone who says boldly, 'I am bad and

selfish, and I mean to be bad and selfish.'[159] The positivists can

only reply, 'Our tastes differ.' The great religions have answered

differently. We all know the Christian answer, and 'even the Buddhists

had, after a time, to set up a hell.' The reason is simple. You can

never persuade the mass of men till you can threaten them. Religions

which cannot threaten the selfish have no power at all; and till the

positivists can threaten, they will remain a mere 'Ritualistic Social

Science Association.' Briefly, the utilitarian asks, What is the

sanction of morality? And the Puritan gives the answer, Hell. Here,

then, apparently, we have the keystone of the arch. What is the good of

government in general? To maintain the law? And what is the end of the

law? To maintain morality. And why should we maintain morality? To

escape hell. This, according to some of his critics, was Fitzjames's

own conclusion. It represents, perhaps in a coarse form, an argument

which Fitzjames was never tired of putting since the days when he worked

out the theory of hell at school.

It would, however, be the grossest injustice to him if I left it to be

supposed for a moment that he accepted this version of his doctrine. He

repudiated it emphatically; and, in fact, he modifies the doctrine so

much that the real question is, whether he does not deprive it of all

force. No one was more sensible of the moral objections to the hell of

popular belief. He thought that it represented the Creator as a cruel

and arbitrary tyrant, whose vengeance was to be evaded by legal

fictions. Still, the absolute necessity of some 'sanction' of a

spiritual kind seemed clear to him. Without it, every religion would

fall to pieces, as every system of government would be dissolved without

'coercion.' And this is the final conclusion of his book in chapters

with which he was, as I find from his letters, not altogether satisfied.

He explains in the preface to his second edition that the question was

too wide for complete treatment in the limits. Briefly the doctrine

seems to be this. The Utilitarian or Positivist can frame a kind of

commonplace morality, which is good as far as it goes. It includes

benevolence and sympathy; but hardly gets beyond ordering men to love

their friends and hate their enemies. To raise morality to a higher

strain, to justify what it generally called self-sacrifice, to make men

capable of elevated action, they require something more. That something

is the belief in God and a future world. 'I entirely agree,' he says,

'with the commonplaces about the importance of these doctrines.'[160]

'If they be mere dreams life is a much poorer and pettier thing, and

mere physical comfort far more important than has hitherto been

supposed. Morality, he says, depends on religion. If it be asked whether

we ought to rise beyond the average utilitarian morality, he replies,

'Yes, if there is a God and a future state. No, if there is no God and

no future state.'[161] And what is to be said of those doctrines, the

ultimate foundation, if not of an average morality, yet of all morality

above the current commonplaces? Here we have substantially the religious

theory upon which I have already dwelt. He illustrates it here by

quotations from Mill, who admits the 'thread of consciousness' to be an

ultimate inexplicability, and by a passage from Carlyle, 'the greatest

poet of the age,' setting forth the mystery of the 'Me.' He believes in

a Being who, though not purely benevolent, has so arranged the universe,

that virtue is the law prescribed to his creatures. The law is stern and

inflexible, and excites a feeling less of love than of 'awful respect.'

The facts of life are the same upon any theory; but atheism makes the

case utterly hopeless. A belief in God is inextricably connected with a

belief in morality, and if one decays the other will decay with it.

Still it is idle to deny that the doctrines are insusceptible of proof.

'Faith says, I will, _though_ I am not sure; Doubt says, I will not,

_because_ I am not sure; but they both agree in not being sure.'[162] He

utterly repudiates all the attempts made by Newman and others to get out

of the dilemma by some logical device for transmuting a mere estimate of

probabilities into a conclusion of demonstrable certitude. We cannot get

beyond probabilities. But we have to make a choice and to make it at our

peril. We are on a pass, blinded by mist and whirling snow. If we stand

still, 'we shall be frozen to death. If we take the wrong road, we shall

be dashed to pieces. We do not certainly know whether there is any

right one. What must we do? "Be strong and of a good courage." Act for

the best, hope for the best, and take what comes. Above all let us dream

no dreams and tell no lies, but go our way, wherever we may land, with

our eyes open and our heads erect. If death ends all, we cannot meet it

better. If not, let us enter the next scene with no sophistry in our

mouths and no masks on our faces.'[163]

A conclusion of this kind could commend itself neither to the dogmatist

who maintains the certainty of his theories, nor to the sceptic who

regards them as both meaningless and useless. I have dwelt upon them so

long because they seem to me to represent a substantially logical and

coherent view which commended itself to a man of very powerful

intellect, and which may be presumed to represent much that other people

hold less distinctly. The creed of a strong man, expressed with absolute

sincerity, is always as interesting as it is rare; and the presumption

is that it contains truths which would require to be incorporated in a

wider system. At any rate it represents the man; and I have therefore

tried to expound it as clearly as I could. I may take it for granted in

such references as I shall have to make in the following pages to my

brother's judgment of the particular events in which he took part. Mill

himself said, according to Professor Bain,[164] that Fitzjames 'did not

know what he was arguing against, and was more likely to repel than to

attract.' The last remark, as Professor Bain adds, was the truest. Mill

died soon afterwards and made no reply, if he ever intended to reply.

The book was sharply criticised from the positivist point of view by Mr.

Harrison, and from Mill's point of view by Mr. John Morley in the

'Fortnightly Review' (June and August 1873). Fitzjames replied to them

in a preface to a second edition in 1874. He complains of some

misunderstandings; but on the whole it was a fair fight, which he did

not regret and which left no ill-feeling.

III. DUNDEE ELECTION

The last letter of the series had hardly appeared in the 'Pall Mall

Gazette,' when Fitzjames received an application to stand for Liverpool

in the Liberal interest. He would be elected without expense to himself.

He thought, as he observes, that he should find parliamentary life 'a

nuisance'; but a seat in the House might of course further both his

professional prospects and his schemes of codification. He consulted

Coleridge, who informed him that, if Government remained in office, a

codification Commission would be appointed. Coleridge was also of

opinion that, in that event, Fitzjames's claims to a seat on the

Commission would be irresistible. As, however, it was intended that the

Commissioners should be selected from men outside Parliament and

independent of political parties, Fitzjames would be disqualified by an

election for Liverpool. Upon this he at once declined to stand. A place

in a codification Commission would, he said, 'suit him better than

anything else in the world.' Coleridge incidentally made the remark,

which seems to be pretty obvious, that the authorship of the letters

upon 'Liberty, Equality, Fraternity' would be a rather awkward burthen

for a Liberal candidate to carry.

For some time Fitzjames might hope, though he hoped with trembling, that

something would come of his various codifying projects. It was reported

that Mr. Bruce (Lord Aberdare) would introduce the Homicide Bill during

Russell Gurney's absence. Coleridge was able after many delays to

introduce the Evidence Bill. But it was crowded out of sight by more

exciting measures, and it was only upon its final withdrawal on the last

day of the session (August 5, 1873) that he could say a few words about

it.[165] The Bill was apparently ordered to be printed, but never became

public. It went to the parliamentary limbo with many of its brethren.

In the session of 1873 the Government was beginning to totter. The

ministerial crisis of March, upon the defeat of the Irish University

Bill, was followed by Mr. Gladstone's resignation. He returned to

office, but had to attend to questions very different from codification.

'My castle of cards has all come down with a run,' writes Fitzjames

(March 14, 1873); 'Gladstone is out of office; Coleridge is going out;

my Evidence Act and all my other schemes have blown up--and here am I, a

briefless, or nearly briefless, barrister, beginning the world all over

again.... I have some reason to think that, if Gladstone had stayed in,

I should, in a few weeks, have been Solicitor-General, and on my way to

all sorts of honour and glory.' However, he comforts himself with

various proverbs. His favourite saying on these occasions, which were

only too common, was 'Patience, and shuffle the cards.' The Gladstone

Ministry, however, was patched up, and things looked better presently.

'I am,' he says in May, 'in the queerest nondescript position--something

between Solicitor-General and Mr. Briefless--with occasional spurts of

business' which look promising, but in frequency resemble angelic

visits. On June 27 he announces, however, that a whole heap of briefs

'has come in, and, to crown all, a solemn letter came yesterday from the

Lord Chancellor, offering to appoint me to act as circuit judge in the

place of Lush, who stays in town to try that lump of iniquity, the

Claimant.' He was, accordingly, soon at the Winchester Assizes, making a

serious experiment in the art of judging, and finding the position

thoroughly congenial. He is delighted with everything, including Chief

Baron Kelly, a 'very pleasant, chatty old fellow,' who had been called

to the bar fifty years before, and was still bright and efficient.

Fitzjames's duties exactly suit him. They require close attention,

without excessive labour. He could judge for nine hours a day all the

year round without fatigue. He gets up at 5.30, and so secures two or

three hours, 'reading his books with a quiet mind.' Then there is the

pleasure of choosing the right side, instead of having to take a side

chosen by others; while 'the constant little effort to keep counsel in

order, and to keep them also in good humour, and to see that all things

go straight and well, is to me perfectly exquisite.' His practice in

journalism has enabled him to take notes of the evidence rapidly,

without delaying the witnesses; and he is conscious of doing the thing

well and giving satisfaction. The leader of the circuit pays him 'a most

earnest compliment,' declaring that the 'whole bar are unanimous in

thinking the work done as well as possible. This,' he says, 'made me

very happy, for I know, from knowing the men and the bar, it is just the

case in which one cannot suspect flattery. If there are independent

critics in this world, it is British barristers.' Briefly, it is a

delicious 'Pisgah sight of Palestine.' If, in Indian phrase, he could

only become 'pucka' instead of 'kucha'--a permanent instead of temporary

judge--he would prefer it to anything in the world. He feels less

anxious, and declares that he has 'not written a single article this

week'; though he manages when work is slack, to find time for a little

writing, such as the chapter in Hunter's 'Life of Lord Mayo.'

The assizes were being held at Salisbury soon afterwards, when Fitzjames

was summoned to London by a telegram from Coleridge. Coleridge had to

tell him that if he could stand for Dundee, where a vacancy had just

occurred, he would probably be elected; and that, if elected, he would

probably, though no pledge could be given, be made Solicitor-General.

Lord Romilly had retired from the Mastership of the Rolls in March. The

appointment of his successor was delayed until the Judicature Act, then

before Parliament, was finally settled. As, however, Coleridge himself

or the Solicitor-General, Sir G. Jessel, would probably take the place,

there would be a vacancy in the law offices. Fitzjames hesitated; but,

after consulting Lord Selborne, and hearing Coleridge's private opinion

that he would be appointed Solicitor-General even if he failed to win

the seat, he felt that it would be 'faint-hearted' to refuse. He was to

sit as judge, however, at Dorchester, and thought that it would be

improper to abandon this duty. The consequent delay, as it turned out,

had serious effects. From Dorchester he hurried off to Dundee.

He writes from Dundee on Sunday, July 27, 1873, giving an account of his

proceedings. He had been up till 5 A.M. on the morning of the previous

Tuesday, and rose again at eight. He did not get to bed till 3 A.M. on

Wednesday. He was up at six, went to Dorchester, and attended a 'big

dinner,' without feeling sleepy. On Thursday he tried prisoners for four

hours; then went to London, and 'rushed hither and thither' from 10 P.M.

till 2 A.M. on Friday. He was up again at six, left by the 7.15 train,

reached Dundee at 10.30, and was worried by deputations till past

twelve. Part of the Liberal party had accepted another candidate, and

met him with a polite request that he would at once return to the place

whence he came. He preferred to take a night's rest and postpone the

question. On Saturday he again 'rushed hither and thither' all day;

spoke to 2,000 people for nearly two hours, was 'heckled' for another

hour in stifling heat, and had not 'the slightest sensation of fatigue,'

except a trifling headache for less than an hour. He was 'surprised at

his own strength,' feeling the work less than he had felt the

corresponding work at Harwich in 1865.

The struggle lasted till August 5, the day of polling. Fitzjames had to

go through the usual experience of a candidate for a large constituency:

speaking often six times a day in the open air; addressing crowded

meetings at night; becoming involved in a variety of disputes, more or

less heated and personal in their nature; and seeing from the inside the

true nature of the process by which we manufacture legislators. It was

the second election in Dundee affected by Disraeli's extension of the

suffrage, and, I believe, the first election in the country which took

place under the provisions of the Ballot Act. The work was hard and

exciting, especially for a novice who had still to learn the art of

speaking to large public meetings; but it was such work as many eager

politicians would have enjoyed without reserve. To Fitzjames it was a

practical lesson in politics, to which he submitted with a kind of

rueful resignation, and from which he emerged with intensified dislike

of the whole system concerned.

Dundee was a safe Liberal seat; the working classes under the new system

had an overwhelming majority; and no Tory candidate had ventured to

offer himself.[166] Fitzjames was virtually the Government candidate.

One of his opponents, Mr. Yeaman, had been provost of Dundee, but his

fame does not appear to have spread beyond his native town. While

Fitzjames was lingering at Dorchester another candidate had come

forward, Mr. Edward Jenkins, known as the author of 'Ginx's Baby.' This

very clever little book, which had appeared a couple of years

previously, had struck the fancy of the public, and run through a great

number of editions. It reflected precisely the school of opinion which

Fitzjames most cordially despised. The morality was that of Dickens's

'Christmas Carol,' and the political aim that of sentimental socialism.

Thus, though all three candidates promised to support Mr. Gladstone's

Government, one of Fitzjames's rivals represented the stolid

middle-class prejudices, and a second the unctuous philanthropic

enthusiasm, which he had denounced with his whole force in 'Liberty,

Equality, Fraternity.' No combination could have been contrived which

would have set before him more clearly the characteristics of the party

of which he still considered himself to be a member.

From the beginning he felt himself to be, in some respects, in a false

position. 'My dislike of the business,' he says at starting, 'is not the

least due to weakness or over-delicacy, but to a deep-rooted disgust at

the whole system of elections and government by constituencies like

this.' Three days' experience do not change his view. It is, he says,

'hateful work--such a noise, such waste of time, such unbusinesslike,

raging, noisy, irregular ways, and such intolerable smallness in the

minds of the people, that I wonder I do not do it even worse.' He

could scarcely stand a month of it for a certainty of the

Solicitor-Generalship. On the day before the poll he observes that 'it

is wretched, paltry work.' A local paper is full of extracts from his

'Liberty, Equality, Fraternity,' which, he fears, will not help him.

However, 'it was very good fun writing it.' And meanwhile, Mr. Jenkins

was making speeches which showed that 'his heart beat in unison with the

people's,' and speaking 'earnest words' on Sunday afternoon to boys on a

training ship. Even an enthusiastic speech from one of Fitzjames's

supporters at a large meeting, which was followed by a unanimous vote of

approval, 'nearly made him sick--it was so unspeakably fulsome.' It was

no wonder that he should be inclined to be disgusted with the whole

business.

Considering the general uncongeniality of the surroundings, the most

remarkable thing was that he made so good a fight as he did. He was

encouraged by the presence of his brother by adoption and affection,

Frederick Gibbs. 'No one,' he reports, 'could be kinder or more

sensible; and he is as cool as a cucumber, and not shocked by my cynical

heresies.' From Frederick Gibbs, as he afterwards reports, he has

received the 'best and wisest' advice on every point. The 'cynical

heresies' to which he refers were simply those already expounded in his

book. He said precisely what he thought, and as vigorously as he could

say it. A campaign paper, called the 'Torch,' published by some of his

supporters, sums up the difference between him and Mr. Jenkins. 'Mr.

Stephen's liberalism,' says the 'Torch,' 'is much nearer to radicalism

than the liberalism of Mr. Jenkins. Mr. Stephen's liberalism is the

liberalism of self-help, of individualism, of every form of conscious

industry and energy. It is the only liberalism which has the smallest

chance of success in Scotland. The liberalism of Mr. Jenkins is the

liberalism of state aid, of self-abasement, of incapacity and

indolence'; and leads straight to sentimental communism. According to a

'working man' who writes to the paper, Mr. Jenkins virtually proposes

that the industrious part of the working classes are to support the

children of the lazy, idle, and improvident--a principle which many

people now seem inclined to regard as defensible.

Fitzjames's accounts of his own speeches are to the same purpose. He has

repeated, he says, what he has always and everywhere maintained--that

people must 'help themselves, and that every class of society is bound

together, and is in one boat and on one bottom.' I have read the reports

in the local newspapers, which fully confirm this statement; but I need

only notice one point. He manages to get in a good word for

codification, and illustrates his argument by an ingenious parallel with

Bradshaw's 'Railway Guide.' That 'code' is puzzling enough as it is; but

what would be our state if we had to discover our route by examining and

comparing all the orders given by the directors of railways from their

origin, and interpreting them in accordance with a set of unwritten

customs, putting special meanings upon the various terms employed?

The educated classes, as the 'Torch' asserts, and as his supporters told

him, were entirely in his favour; and, had the old suffrage remained

unaltered, no one else would have had a chance against him. Not only so,

but they declared that every speech he made was converting the working

classes. He is told that, if he had longer time, he would be able to

'talk them all round.' His speeches obviously impressed his hearers for

the time. 'You cannot imagine,' he says on August 2, 'how well I get on

with the people here, working men as well as gentry. They listen with

the deepest attention to all I say, and question me with the keenest

intelligence.' He admits, indeed, that there is no political sympathy

between him and his hearers. They want a 'thorough-going radical,' and

he cannot pretend to be one--'it is forced out on all occasions.' In

fact, he was illustrating what he had said in his book. He heartily

liked the individual working man; but he had no sympathy with the

beliefs which find favour with the abstract or collective working man,

who somehow manages to do the voting. They seem to have admired his

force, size, and manliness. 'Eh, but ye're a wiselike mon ony way,' says

a hideous old woman (as he ungratefully calls her), which, he is told,

is the highest of Scottish compliments to his personal appearance. This

friendly feeling, and the encouragement of his supporters, and the

success of his speeches, raised his hopes by degrees, and he even 'felt

a kind of pride in it,' though 'it is poor work educating people by

roaring at them.' Towards the end he even thinks it possible that he may

win, and, if so, 'it will be an extraordinary triumph, for I have never

asked one single person to support me, and I have said the most

unpopular things to such an extent that my supporters told me I was

over-defiant, or, indeed, almost rude.'

However, it was not to be. Whether, as his friends said, he was too good

for the place, or whether less complimentary reasons alleged by his

opponents might be justified, he was hopelessly behind at the polls. He

received 1,086 votes; Mr. Jenkins, 4,010; and Mr. Yeaman, 5,207--or

rather more than both his opponents together. Fitzjames comforts himself

by the reflection that both he and Mr. Jenkins had shown their true

colours; that the respectable people had believed in him 'with a

vengeance,' and that the working men were beginning to like him. But Mr.

Jenkins's views were, and naturally must be, the most popular.

Fitzjames's chief supporter gave a dinner in his honour, when his health

was drunk three times with boundless enthusiasm, and promises were made

of the heartiest support on a future occasion. The fulfilment of the

promises was not required; and Fitzjames, in spite of occasional

overtures, never again took an active part in a political contest.

In 1881, Lord Beaconsfield wrote to Lord Lytton: 'It is a thousand

pities that J. F. Stephen is a judge; he might have done anything and

everything as leader of the future Conservative party.' Lord

Beaconsfield was an incomparably better judge than I can pretend to be

of a man's fitness for such a position. The opinion, too, which he thus

expressed was shared by some of Fitzjames's friends, who thought that

his masculine force of mind and downrightness of character would have

qualified him to lead a party effectively. I shall only say that it is

idle to speculate on what he might haw done had he received the kind of

training which seems to be generally essential to success in political

life. He might, no doubt, have learnt to be more tolerant of the

necessary compromises and concessions to the feelings engendered by

party government. As it was, he had, during his early life, taken so

little interest in the political movements of the day, and, before he

was dragged for a time into the vortex, had acquired so many

prepossessions against the whole system, that I cannot but think that he

would have found a difficulty in allying himself closely with any party.

He considered the Tories to be not much, if at all, better than the

Radicals; and he would, I fancy, have discovered that both sides had, in

Lowell's phrase, an equal facility for extemporising lifelong

convictions. Upon this, however, I need not dwell. In any case, I think

that the Dundee defeat was a blessing in disguise; for, had he been

elected and found himself enlisted as a supporter of Mr. Gladstone, his

position would have been almost comically inappropriate. A breach would,

doubtless, have followed; and perhaps it would have been an awkward

business to manage the transition with delicacy.

Fitzjames, in fact, discovered at Dundee that he was not really a

'Liberal' in the sense used in modern politics. His 'liberalism,' as the

'Torch' said, meant something radically opposed to the ideas which were

becoming dominant with the party technically called by the name. His

growing recognition of a fact which, it may perhaps be thought, should

have already been sufficiently obvious, greatly influenced his future

career. Meanwhile, he went back to finish his duties as Commissioner at

the assizes, and to reflect upon the lessons which, as he said, he had

learnt at Dundee. He had fresh ideas, he said, as to politics and the

proper mode of treating them. He propounded some of his doctrines in a

couple of lectures upon 'Parliamentary Government,' delivered to the

Edinburgh Philosophical Society in the following November.[167] He

describes some of the familiar consequences; shows how our

administrative system has become an 'aggregate of isolated

institutions'; and how the reduction of the Royal power to a cipher has

led to the substitution of a set of ministers, each a little king in his

own department, and shifted backwards and forwards in obedience to

popular sentiment. One result is the subordination to party purposes of

important interests not essentially connected with them. At the present

moment, he says, a disaster on the west coast of Africa would affect the

prospects of popular education. That is as rational as it would be to

change your lawyer because you have had to discharge your cook.

Fitzjames, however, was under no illusions. He fully admits that

parliamentary government is inevitable, and that foreign systems are in

some respects worse, and, in any case, incapable of being introduced.

He confines himself to suggesting that some departments of

administration and legislation might be withdrawn from the influence of

our party system.

IV. CODIFICATION IN ENGLAND

Fitzjames had returned to act again as Commissioner at Wells. There he

had to listen to a vehement sermon from Archdeacon Denison, in favour of

auricular confession, and glancing, as his hearer fancied, at a certain

article in the 'Pall Mall Gazette.' He had afterwards a pleasant chat

with Freeman, 'not a bad fellow at all,' though obviously a 'terrible

pedant.' He hears from Coleridge, who has finally decided against

accepting the Mastership of the Rolls, and hopes that Fitzjames may

still be his colleague. The old Chief Baron is still charming, and says

('though I don't believe it') that he never knew what mental fatigue

meant, and that when he was Solicitor-General he was never in bed for

more than two or three hours for four or five nights a week ('which,

again, I do not believe'). However, it is undeniable that he can still

do his work as well as many younger men.

The chance of the Solicitor-Generalship was soon extinguished. Coleridge

was friendly, but explained that political considerations might prevent

any attention being paid to his personal wishes. In September, in fact,

Sir Henry James was appointed to the vacant post and the hope finally

disappeared. There was still, however, a possibility of a seat on the

bench, which would please him still better. He feels that his proper

place is out of Parliament. He could exercise more influence 'than all

the Solicitor-Generals in the world' by simply devoting himself to

writing, and he is full of plans for books. But he would like to be a

judge for the sake both of the money and the work. 'The administration

of justice is really the best thing which is going on in the nation.' On

January 9, 1874, however, he announces that his little 'bubble about the

judgeship, which looked a very bright bubble indeed, has gone where all

bubbles go.' Twenty people had congratulated him upon his appointment

and three judges had written to recommend clerks. Last night he had

heard decisively that he was not to have it. Coleridge, too, had become

Lord Chief Justice and the Government business had gone elsewhere. Well,

he will 'put on some extra work to keep hold of the wolf's ears which he

has held so long.' Coleridge, I may add, still took an interest in

Fitzjames's codification schemes, and they even agreed, or rather

vaguely proposed, to act the parts of 'Moses and Aaron,' Fitzjames

inspiring measures of which Coleridge was to take charge in the House of

Lords. This dream, however, vanished like others.

The dissolution of Parliament in January, 1874, was followed by a

general election. Proposals were made to Fitzjames to stand at several

places; including Dundee, where, however, Mr. Jenkins was elected. For

one reason or other he declined the only serious offers, and was 'not

sorry.' He could not get over 'his dislike to the whole affair.' He

'loathed elections,' and 'could not stand the idea of Parliament.'

Disraeli soon came into office, and 'the new ministry knew not Joseph.'

Fitzjames had quite got over his disappointment about the judgeship,

though he admits that he had at first felt it 'bitterly.' He has not

known how to find favour with chancellors or ministers. He therefore

resolves to make his own way; he cares more for what he is in himself

than for the position he holds; and he reconciles himself 'to the

prospect which obviously lies before him,' of obscure hard 'labour for a

good many years.' He 'puts away all his fair hopes in his pocket, and

resolves to do three things: a good bit of codifying,' whether on his

own account or for Government; a little book about India; and finally

the _magnum opus_ which he had so long meditated, which he thought that

he ought to begin when he was fifty (he was at this time just

forty-five), and which might take about fifteen years. The little book

about India is afterwards frequently mentioned in his letters under its

proposed title, 'The English in India.' It was, I think, to be more or

less historical, and to occupy some of the ground covered by Sir Alfred

Lyall's 'British Dominion in India.' It never took definite shape, but

led to the work upon Impey, of which I shall have to speak hereafter.

Meanwhile he is not without some good professional omens. He feels that

he will have to 'restrict his circuiteering,' and not to go to most of

the towns without special retainers. Good work is coming to him in

London, though not so frequently as might be wished.

The codifying, in fact, took up much of his time. The 'Homicide Bill'

was introduced into Parliament this year (1874) by Russell Gurney, and

referred to a Select Committee. They consulted Cockburn, Bramwell, and

Blackburn, who appear to have been on the whole hostile. Bramwell,

however, declared that the Bill was 'excellently drawn,' and in a

friendly letter to Fitzjames condemned the spirit of hostility in which

it had been received by other judges. The main objection put forward by

Cockburn and accepted by the Committee was the objection to a partial

measure. The particular question of homicide involved principles

applying to other parts of the criminal law; and a partial treatment

would only serve to introduce confusion and doubt. The Committee

accordingly recommended that the Bill should be dropped. Fitzjames

accepted this not as a reason for abandoning the attempt but for

extending the scope of the proposed measure. The result will appear

presently.

The change of Government was not altogether unfavourable. Early in March

he received instructions from Lord Salisbury, who had succeeded the Duke

of Argyll at the India Office, to consolidate the Acts relating to the

government of India. He set to work with his usual energy, and a

statement prefixed to the printed draft of the Bill is dated June 2,

1874. In less than three months he had done a big piece of work. The

consolidation of these laws had been in contemplation in England and

India for some time. Various preparations had been made by Government,

including a draft of the proposed Act by Mr. Herman Merivale, then

permanent undersecretary at the India Office. Fitzjames, however, had to

go through the whole, and, as he laments, without such help as he could

have commanded from his subordinates in India. He prepared an elaborate

schedule showing every unrepealed section of every Act relating to India

since 1770. The 'kernel of the law' was contained in eight Acts; the

'Regulating Act' of 1773, the Acts upon the successive renewal of the

Company's charter, and the Acts passed upon the transference of the

Company's powers to the Crown. As each of these had been superposed upon

its predecessors without repealing them, it was necessary to go through

them all to discover what parts were still in force; how far any law had

been modified by later enactments, and what parts of the law it might be

desirable to leave unaltered; and then to fuse the whole into unity.

Fitzjames proposes to repeal forty-three Acts with the exception of

certain sections, and to substitute for the repealed portions a single

Act of 168 sections, shorter, as he remarks, than some of those

repealed. The result would be to save a great deal of labour to

hard-worked Indian officials, who required to know the precise limits

of their authority; and the Act would form a complete constitutional

code, determining the powers and the mutual relations of the whole

Indian administrative and legislative system.

The draft was carefully criticised by the authorities. Fitzjames himself

went through it again in the following January with Maine and Sir

Erskine Perry, and it was finally made ready to be laid before

Parliament. Lord Salisbury introduced in the following session a

preparatory measure which would be incidentally required. This, however,

was withdrawn in consequence, it seems, of objections made by the

Legislative Council in India, and the whole code went to the usual

limbo. I do not know what was the precise nature of the objection, but

probably it was thought that the new law might stir up questions which

it was better to leave in repose. Anyhow, nothing came of it. 'You have

done your work and got your fee, and what more do you want?' observed a

cynical friend. To which Fitzjames could only reply, ruefully enough,

'True, O King.'

This task interrupted another upon which he had been engaged, and which

he took up again as soon as it was finished. He writes upon July 3,

1874, that his prospects have improved, and that he has therefore

'turned his mind to his books in real earnest.' They are a 'large

family' and rather crowd upon him. However, his first enterprise will be

'a codification of the English law of contracts, founded upon the Indian

Act, but larger and more elaborate in every way.' If the country takes

to codifying (the dream had not yet vanished), this might become his

profession. Anyhow, he will be able to give his mind to what he really

cares for. He had been already hard at work upon his 'Contract Book' in

the winter before he was instructed to prepare the Acts for the

Government of India. This task, I may observe, had led him to study some

of the German jurists. He had perfected his German with the help of a

master in the summer of his return, and was now able to read the

language comfortably. He expresses at first sight anything but

acquiescence in German claims to philosophical pre-eminence, but after a

time he comes to understand the respect which Austin professed for

Savigny. His study of the Law of Contracts was apparently broken off by

a renewed call to take up once more the Criminal Law. Of this I shall

have to speak presently.

The reference just quoted to improved prospects is to be explained by an

influx of parliamentary business which took place at this time. He was

leading counsel in the session of 1874 for the London, Chatham and Dover

Railway Company, and appeared for them in several cases. The impression

which he made upon professional observers has been reported to me by

more than one competent witness. It is such as may be foreseen. 'You are

bringing your steam hammer to crack a nut again,' was the remark made to

one of them by a friend. Admiration for his 'close reasoning, weighty

argument, and high tone of mind,' is cordially expressed. He never threw

a word away, always got to the core of a question, and drove his points

well home. And yet he did not seem to be in the field best adapted for

his peculiar gifts. He was too judicial, too reluctant to put a good

face upon a bad cause, not enough of a rhetorician, and not sufficiently

alert in changing front, or able to handle topics with the lightness of

touch suitable to the peculiar tastes of a parliamentary Committee.

Thus, though he invariably commanded respect, he failed to show the

talent necessary for the more profitable, if not more exalted lines of

professional success. Business still continued to present itself in the

most tantalising form; it came in gushes and spurts, falling absolutely

dead at one moment and then unexpectedly reviving. He had occasionally

successful circuits; but failed to step into the vacant place made by

the elevation to the bench of his old tutor, Lord Field, in 1875, and

gradually went his rounds less regularly. Meanwhile a good deal of

business of a different kind presented itself. At the end of 1874, I

find him mentioning that he had eleven cases before the Judicial

Committee of the Privy Council. He appeared in a good many colonial and

Indian appeals, and afterwards, as I shall have occasion to notice, in

certain ecclesiastical cases. I do not think, however, that I need dwell

upon this part of his career.