One remark must be made. Fitzjames was still doomed to be an

illustration of the curious disproportion which may exist between a

man's intrinsic power and his fitness for professional success. Still,

as at college, he was distanced in the race by men greatly his inferiors

in general force of mind, but better provided with the talent for

bringing their gifts to market. Such a position was trying, for it was

inevitable that he should be himself more conscious of his abilities

than of his limitations. His incapacity for acquiring the dexterities by

which men accommodate themselves to their neighbours' wants implied a

tendency rather to under-estimate the worth, whatever it may be, of such

dexterities. The obstacle to his success was just the want of

appreciation of certain finer shades of conduct, and therefore remained

unintelligible to himself. He was like a painter of very keen and yet

narrowly limited vision, who could not see the qualities which lead

people to prefer the work of a long-sighted man. Yet he not only never

lost heart, but, so far as I can discover, was never for a moment

querulous or soured. He was never for an instant in danger of becoming a

'man with a grievance.' He thought, of course, that his views were

insufficiently appreciated; but he complained, not of individuals, but

of general causes which were practically irremovable, and against which

it was idle to fret. If, in writing to his closest friends, he indulges

in a momentary grumble over the 'bursting of a bubble,' he always adds

that he is ashamed of himself for the feeling, and emphatically declares

himself to be one of the happiest and most fortunate of men. When,

therefore, I report his various disappointments, I must be understood to

imply that they never lowered his courage even in the most trifling

degree, or threw over his course more than such passing fits of shadow

as even the strongest man must sometimes traverse. Nobody could have

been cheerier, more resolute, or more convinced that his lines had

fallen in pleasant places.

V. THE METAPHYSICAL SOCIETY

Here I shall notice some of the employments in which he found

distraction from the various worries of his career. In the first place,

he had a boundless appetite for books. When he returned from India he

rubbed up his old classical knowledge; and, though he had far too much

sense to despise the help of 'cribs,' he soon found himself able to get

on pretty well without them. He mentions a number of authors, Homer, for

example, and Aeschylus, who supplied a motto for 'Liberty, Equality,

Fraternity '; he reads Demosthenes, partly with a view to Greek law;

dips into Plato and Aristotle, and is intensely interested by Cicero's

'De Natura Deorum.' He declares, as I have said, that he cared little

for literature in itself; and it is no doubt true that he was generally

more interested in the information to be got from books than in the mode

of conveying it. This, however, increases his appetite for congenial

works. He admires Gibbon enthusiastically; he has read the 'Decline and

Fall' four or five times, and is always wishing to read it again. He can

imagine no happier lot than to be able to devote oneself to the

completion of such a book. He found it hard, indeed, to think of a novel

or a poem as anything but a trifling though fascinating amusement. He

makes an unfavourable criticism upon a novel written by a friend, but

adds that it is 'not really unfavourable.' 'A great novel,' he explains,

'a really lasting work of art, requires the whole time and strength of

the writer, ... and X. is too much of a man to go in for that.' After

quoting Milton's 'Lycidas' and 'Christmas Hymn,' which he always greatly

admired, he adds that he is 'thankful that he is not a poet. To see all

important things through a magnifying glass of strange brilliant

colours, and to have all manner of tunes continually playing in one's

head, and I suppose in one's heart too, would make one very wretched.' A

good commonplace intellect satisfied with the homely food of law and

'greedily fond of pastry in the form of novels and the like, is--well,

it is at all events, thoroughly self-satisfied, which I suppose no real

poet or artist ever was.' Besides, genius generally implies sensitive

nerves, and is unfavourable to a good circulation and a thorough

digestion. These remarks are of course partly playful, but they

represent a real feeling. A similar vein of reflection appears to have

suggested a comment upon Las Casas' account of Napoleon at St. Helena.

It is 'mortifying' to think that Napoleon was only his own age when sent

to St. Helena. 'It is a base feeling, I suppose, but I cannot help

feeling that to have had such gifts and played such a part in life would

be a blessing and a delight greater than any other I can think of. I

suppose the ardent wish to be stronger than other people, and to have

one's own will as against them, is the deepest and most general of human

desires. If it were a wish which fulfilled itself, how very strong and

how very triumphant I should be;--but it does not.' For this atrocious

wish, I must add, he apologises amply in a later letter. It is merely a

passing velleity. In truth it represents his version of Carlyle's

doctrine about the superiority of silence to speech, or rather of the

active to the contemplative life. The career of a great conqueror, a

great legislator, a man who in any capacity has moulded the doctrines of

the race, had a charm for his imagination which he could not find in the

pleasant idlers, who beguile our leisure by singing songs and telling

stories.

Men who affect the religions of mankind belong rather to the active than

the contemplative class. Nobody could estimate more highly the

importance of philosophical speculations upon the great problems of

life. To write a book which should effectively present his own answer to

those problems was his permanent ambition. Even in going to India, he

said, he had been moved partly by the desire of qualifying himself by

fresh experience for such a work, which had been consciously before him

ever since he left college. He was never able to carry out the plan

which was very frequently in his thoughts. Certain articles, however,

written about this time, sufficiently indicate his general conclusions,

and I therefore shall here give some account of them. They were all more

or less connected with that curious body called the 'Metaphysical

Society.'

A description of this institution was given in the 'Nineteenth Century'

for August 1885 by Mr. R. H. Hutton, who represents the discussions by

an imaginary conversation between the chief debaters. Mr. Knowles

prefixed a brief historical account. The Society was founded in

consequence of a conversation between Tennyson and Mr. Knowles, and held

its first meeting on April 21, 1869. Fitzjames joined it after his

return from India. The scheme of the founders was to provide an arena in

which the most important religious problems should be discussed with the

same freedom with which other problems are, or ought to be discussed in

the learned and scientific societies. Perhaps some light might be thrown

upon the question whether we have immortal souls, in which Tennyson was

much interested. Many very distinguished men became members, and after a

friendly dinner discussed papers which had been circulated for

consideration. Cardinal Manning, W. G. Ward, and Father Dalgairns were

the chief representatives of Catholicism; Professors Huxley, Tyndall,

and W. K. Clifford of a scientific agnosticism; Mr. Frederic Harrison of

Positivism; and Dr. Martineau, Mr. Ruskin, Mr. R. H. Hutton, of various

shades of rational theology. There were others, such as Mark Pattison

and Professor Henry Sidgwick, whom I should shrink from putting into any

definite class. Mr. Gladstone, Lord Selborne, and Fitzjames may perhaps

be described as intelligent amateurs, who, though occupied with more

practical matters, were keenly interested in philosophical speculations.

These names are enough to show that there was no lack of debating

talent.

Fitzjames took the liveliest interest in these discussions, to which at

various times he contributed papers upon 'necessary truths,'

'mysteries,' the 'proof of miracles,' the 'effect upon morality of a

decline in religious faith,' and the 'utility of truth.' He enjoyed some

vigorous encounters with various opponents: and according to Mr. Hutton

his 'mighty bass' exercised 'a sort of physical authority' over his

hearers. The meetings were of course strictly private; and reports of

the debates, had reports been possible, would have been a breach of

confidence. Yet as the Society has excited a certain interest, I will

venture to record part of my impressions. I was not a member of the

Society in its early, and, as I take it, most flourishing days; and I

only once, for example, heard a few words from W. G. Ward, who was then

one of the more conspicuous interlocutors. But I had the honour of

membership at a later period, and formed a certain estimate of the

performances.

I remarked, in the first place, what was not strange, that nobody's

preconceived opinions were changed, nor even, so far as I know, in the

smallest degree affected by the discussions. Nor were they calculated to

affect any serious opinions. Had any young gentleman been present who

had sat at the feet of T. H. Green or of Professor Sidgwick, and gained

a first class at either University, he would, as I always felt, have

remarked that the debaters did not know what they were talking about. So

far as the discussions were properly metaphysical, the remark would have

been more than plausible. With certain conspicuous exceptions, which I

shall not specify, it was abundantly clear that the talk was the talk of

amateurs, not of specialists. I do not speak from conjecture when I say,

for example, that certain eminent members of the Society had obviously

never passed that 'asses' bridge' of English metaphysics, the writings

of Bishop Berkeley, and considered his form of idealism, when it was

mentioned, to be a novel and startling paradox. It was, I fancy, a small

minority that had ever really looked into Kant; and Hegel was a name

standing for an unknown region wrapped in hopeless mist. This would be

enough to disenchant any young gentleman fresh from his compendiums of

philosophy. Persons, he would think, in so hopeless a state of ignorance

could no more discuss metaphysics to any purpose than men who had never

heard of the teaching of Newton or Darwin could discuss astronomy or

biology. It was, in fact, one result of the very varying stages of

education of these eminent gentlemen that the discussions became very

ambiguous. Some of the commonest of technical terms convey such

different meanings in different periods of philosophy that people who

use them at random are easily set at hopelessly cross-purposes....

'Object' and 'subject,' 'intuition,' 'experience,' and so forth, as used

by one set of thinkers, are to others like words in an unknown language

which they yet do not know to be unknown.

If metaphysics were really a separate and independent science upon which

experts alone had a right to speak, this remark would be a sufficient

criticism of the Society. It called itself metaphysical, and four out of

five of its members knew nothing of metaphysics. A defence, however,

might be fairly set up. Some of the questions discussed were independent

of purely metaphysical inquiries. And it may be denied, as I should

certainly deny, that experts in metaphysics have any superiority to

amateurs comparable to that which exists in the established sciences.

Recent philosophers have probably dispersed some fallacies and cleared

the general issues; but they are still virtually discussing the old

problems. To read Plato, for example, is to wonder almost equally at his

entanglement in puerile fallacies and at his marvellous perception of

the nature of the ultimate and still involved problems. If we could call

up Locke or Descartes from the dead in their old state of mind, we might

still be instructed by their conversation, though they had never heard

of the later developments of thought. And, for a similar reason, there

was a real interest in the discussion of great questions by political,

or legal, or literary luminaries, who had seen men and cities and mixed

in real affairs and studied life elsewhere than in books, even though

as specialists they might be probably ignorant. The difference was

rather, perhaps, a difference of dialect than of substance. Their

weapons were old-fashioned; but the main lines of attack and defence

were the same.

Another criticism, however, was obvious, and is, I think, sufficiently

indicated in Mr. Hutton's imaginary conversation. The so-called

discussions were necessarily in the main a series of assertions. Each

disputant simply translated the admitted facts into his own language.

The argument came to saying, I say ditto to Hume, or to Comte, or to

Thomas Aquinas. After a brief encounter, one man declared that he

believed in God, and his opponent replied, I don't. It was impossible

really to get further. It was not a difference between two advocates

agreed upon first principles and disputing only some minor corollary,

but a manifestation of different modes of thought, and of diverging

conceptions of the world and of life, which had become thoroughly

imbedded in the very texture of the speaker's mind. When it is a

question of principles, which have been the battle-ground of

generations; when every argument that can be used has been worked out by

the subtlest thinkers of all times, a dispute can really come to nothing

but saying, I am of this or that turn of mind. The real discussion of

such questions is carried on by a dialectical process which lasts

through many generations, and is but little affected by any particular

champion. Thus the general effect necessarily was as of men each

securely intrenched in his own fastness, and, though they might make

sallies for a little engagement in the open, each could retreat to a

position of impregnable security, which could be assaulted only by long

siege operations of secular duration.

It was, I fancy, a gradual perception of these difficulties which led

to the decay of the Society. Meanwhile there were many pleasant

meetings, and, if the discussions came to be little more than a mutual

exhibition to each other of the various persons concerned, I hope and

believe that each tended to the conviction that his antagonist had

neither horns nor hoofs. The discussions, moreover, produced a

considerable crop of Magazine articles; and helped to spread the

impression that certain very important problems were being debated, upon

the decision of which immense practical consequences might depend. It

might be curious to inquire how far the real interest in these arguments

extended, and whether the real state of the popular mind is a vivid

interest in the war between scientific theories and traditional beliefs,

or may more fitly be described as a languid amusement in outworn

problems. Fitzjames, at any rate, who always rejoiced, like Cromwell's

pikemen, when he heard the approach of battle, thought, as his letters

show, that the forces were gathering on both sides and that a deadly

struggle was approaching. The hostility between the antagonists was as

keen as it had been in the sixteenth and seventeenth centuries, though

covered for the present by decent pretences of mutual toleration. He

contributed during this period a paper upon Newman's 'Grammar of Assent'

to 'Fraser's Magazine'; and he wrote several articles, partly the

product of the Metaphysical Society, in the 'Contemporary Review' and

the 'Nineteenth Century,' both under the editorship of Mr. Knowles.

I shall speak of them so far as they illustrate what was, I think, his

definite state of mind upon the matters involved. His chief encounters

were with Cardinal Manning ('Contemporary Review,' March and May 1874),

and with W. G. Ward ('Contemporary Review,' December 1874), and with Mr.

Gladstone ('Nineteenth Century,' April 1877). The controversy with Mr.

Gladstone turned upon certain points raised in Sir G. C. Lewis's book

upon 'Authority in Matters of Opinion.' The combatants were so polite,

and their ultimate difference, which was serious enough, was so mixed up

with discussions of Lewis's meaning, that a consideration of the

argument would be superfluous. The articles directed against Manning, to

which his antagonist replied in succeeding numbers of the Review, were

of more interest. The essence of Fitzjames's argument was a revival of

his old challenge to Newman. He took occasion of a pamphlet by Manning

to ask once more the very pertinent question: You claim to represent an

infallible and supernatural authority which has indefeasible rights to

my allegiance; upon what grounds, then, is your claim based? To

establish it, you have first to prove that we have such a knowledge of

God as will enable us to draw special inferences as to particular

institutions; next, that Christ was an incarnation of that God; then,

that Christ founded a particular institution; and, finally, that the

institution was identical with the Catholic Church. The argument covers

a very wide ground; and I think that Fitzjames never wrote with more

concentrated vigour. I have a certain difficulty in speaking of

Manning's reply; because it has apparently come to be understood that we

are bound to pay insincere compliments to a good man's understanding

when he disagrees with our views. Now I am quite willing to admit that

Manning was a most amiable and well-meaning person; but I am unable to

consider him seriously as a reasoner. The spectacle which he presented

on this occasion, at least, was that of a fluent popular preacher,

clutched by a powerful logician, and put into a witness-box to be

thoroughly cross-examined. The one quality I can discover in his

articles is a certain dexterity in evading plain issues and covering

inconsistencies by cheap rhetoric. The best suggestion to be made on

his side would be that he was so weak an advocate that he could not do

justice to the argument.

The controversy with W. G. Ward was of different character. Ward, with

his usual courtesy to intellectual antagonists, had corresponded with

Fitzjames, in whose writings he was much interested. He now challenged

his opponent to republish a paper upon 'necessary truths,' which had

been read to the Metaphysical Society. Fitzjames accordingly reproduced

it with a comment, and Ward replied in the next number. Ward was

undoubtedly a man of much dialectical ability, and, I think, in some

directions more familiar than his opponent with metaphysical subtleties.

Fitzjames considered himself to have had the best of the argument, and

says that the 'Tablet' admitted his superiority. I presume, however,

that Ward would have returned the opposite verdict. I am the less

inclined to pronounce any opinion because I believe that most competent

people would now regard the whole discussion as turning upon a false

issue. In fact, it was the old question, so eagerly debated by J. S.

Mill and Ward, as to the existence of intuitions and 'necessary truths.'

Neither Mill's empiricism nor Ward's belief in intuitions 'in the sense

required' would, I fancy, be now regarded as satisfactory. I think that

Fitzjames was greatly superior in vigour of expression; but the argument

is not one to be answered by a single Yes or No.

I cannot even touch such controversies here. My only desire is to

indicate Fitzjames's intellectual attitude. It is sufficiently manifest

in these articles. He argues that Ward's position is really suicidal.

Certain things are pronounced by Ward to be impossible even for

Omnipotence--as, for example, to make a trilateral figure which shall

not be also triangular. Carry out this view, says Fitzjames, and you

make our conceptions the measure of reality. Mysteries, therefore,

become nonsense, and miracles an impossibility. In fact, Ward's logic

would lead to Spinoza, not to the deity of Catholic belief. Ward might

retort that Fitzjames's doctrines would lead to absolute scepticism or

atheism. Fitzjames, in fact, still accepts Mill's philosophy in the

fullest sense. All truth, he declares, may be reduced to the type, 'this

piece of paper is blue, and that is white.' In other words, it is purely

empirical and contingent. The so-called intuitive truths 'two and two

make four' only differ from the truth, 'this paper is white' in that

they are confirmed by wider experience. All metaphysical verbiage, says

Fitzjames, whether Coleridge's or Ward's, is an attempt to convert

ignorance into superior kind of knowledge, by 'shaking up hard words in

a bag.' Since all our knowledge is relative to our faculties, it is all

liable to error. All our words for other than material objects are

metaphors, liable to be misunderstood--a proposition which he confirms

from Horne Tooke's nominalism. All our knowledge, again, supposes memory

which is fallible. All our anticipations assume the 'uniformity of

nature,' which cannot be proved. And, finally, all our anticipations

also neglect the possibility that new forces of which we know nothing

may come into play.

Such convictions generally imply agnosticism as almost a necessary

consequence. They might seem to show that what I have called the

utilitarian element in his thoughts had effectually sapped the base of

the Puritanic element. I certainly think that this was to some extent

the case. Fitzjames had given up the belief that the Gospel narrative

could be proved after the Paley method, and that was the only method

which, according to him, was legitimate. He had, therefore, ceased to

believe in the historical truth of Christianity. After going to India he

did not take part in church services, and he would not, I am sure, have

used such language about his personal convictions as he used in all

sincerity at the time of the 'Essays and Reviews' controversy. In short,

he had come to admit that no belief in a supernatural revelation could

be maintained in the face of modern criticism. He often read Renan with

great interest; Renan, indeed, seemed to him to be sentimental, and too

favourable to the view that a religion might have a certain artistic

value independent of its truth. But he was as far as Renan or as the

most thorough-going of historical critics from believing in the divinity

of Christ or the truth of the Christian inspiration. But, in spite of

this, he still held to his version of the doctrine of probability. It is

summed up in Pascal's famous _il faut parier_. We can neither put aside

the great religious questions nor give a positive answer to them. We

must act on the hypothesis that one answer or the other is true; but we

must not allow any juggling to transmute a judgment of probability into

an undoubting conviction of truth. There are real arguments on both

sides, and we must not ignore the existence of either. In the attack

upon Manning he indicates his reasons for believing in a God. He accepts

the argument from final causes, which is, of course, the only argument

open to a thorough empiricist, and holds that it is not invalidated,

though it is, perhaps, modified by recent scientific inquiries. It is

probable, therefore, that there is a God, though we cannot regard the

point as proved in such a sense as to afford any basis for expecting or

not expecting a revelation. On the contrary, all analogy shows that in

theological, as in all other matters, the race has to feel its way

gradually to truth through innumerable errors. In writing to a friend

about the Manning article he explains himself more fully. Such articles,

he says, give a disproportionate importance to the negative side of his

views. His positive opinions, if 'vague, are at least very deep.' He

cannot believe that he is a machine; he believes that the soul must

survive the body; that this implies the existence of God; that those two

beliefs make 'the whole difference between the life of a man and the

life of a beast.' The various religions, including Christianity, try to

express these beliefs, and so long as they are honestly and simply

believed are all good in various degrees. But when the creeds are held

on the ground of their beauty or utility, not on the ground of their

demonstrable truth, they become 'the most corrupt and poisonous objects

in the world, eating away all force, and truth, and honour so far as

their influence extends.' To propose such beliefs on any ground but the

ground of truth, 'is like keeping a corpse above ground because it was

the dearest and most beloved of all objects when it was alive.' He does

not object to authority as such. He has no objection to follow a

doctor's directions or to be loyal to an official superior, and would

equally honour and obey anyone whom he could trust in religious

questions. But he has never found such a guide. 'A guide is all very

well if he knows the way, but if he does not, he is the most fatal piece

of luggage in the world.'

To use his favourite language, therefore, he still regarded a 'sanction'

as absolutely necessary to the efficacy of moral or religious teaching.

His constant criticism upon positivists and agnostics is that their

creeds afford no satisfactory sanction. They cannot give to the bad man

a reason for being good. But he was equally opposed to sham sanctions

and sham claims to authority. As a matter of fact, his attack upon such

claims led most people to classify him with the agnostics. Nor was this

without reason. He differed less in reality, I think, from Professor

Huxley or Mr. Harrison than from Ward or Cardinal Manning. In the

arguments at the 'Metaphysical Society' he was on the left wing as

against both Catholics and the more or less liberal theologians, whose

reasoning seemed to him hopelessly flimsy. His first principles in

philosophy were those of the agnostics, and in discussing such

principles he necessarily took their part. He once told Mr. Harrison

that he did not wish to have any more controversies with him, because

dog should not fight dog. He sympathised as heartily as any man could do

in the general spirit of rationalism and the desire that every belief

should be the outcome of the fullest and freest discussions possible.

Every attempt to erect a supernatural authority roused his

uncompromising antagonism. So long as people agreed with him upon that

point, they were at one upon the main issue. His feeling was apparently

that expressed in the old phrase that he would go with them as far as

Hounslow though he did not feel bound to go to Windsor.

Writing a few months later to the same correspondent, he observes that

the difference between them is partly a difference of character.

Circumstances have developed in him a 'harsh and combative way of

thinking and writing in these matters.' Yet he had felt at times that it

required so much 'effort of will to face dreary and unpleasant

conclusions' that he could hardly keep his mind in the direction, or

what he thought the direction, of truth without much pain. He could

happily turn to neutral subjects, and had (I rather doubt the accuracy

of the phrase) 'a peculiarly placid turn of mind.' He admits that a

desire for knowledge is right and inevitable, but all experience shows

our fallibility and the narrow limits of our knowledge. We know,

however, that 'we are bound together by innumerable ties, and that

almost every act of our lives deeply affects our friends' happiness.'

The belief again (in the sense always of belief of a probability) in the

fundamental doctrines of God and a future state imposes an 'obligation

to be virtuous, that is, to live so as to promote the happiness of the

whole body of which I am a member. Is there,' he asks, 'anything

illogical or inconsistent in this view?'

At any rate, it explains his 'moral indignation' against Roman

Catholicism. In the first place, Catholicism claims 'miraculous

knowledge' where there should be an honest confession of ignorance. This

original vice has made it 'to the last degree dishonest, unjust, and

cruel to all real knowledge.' It has been the enemy of government on

rational principles, of physical science, of progress in morals, of all

knowledge which tends to expose its fundamental fallacies. Its

theological dogmas are not only silly but immoral. The doctrines of

hell, purgatory, and so forth, are not 'mysteries,' but perfectly

unintelligible nonsense, first representing God as cruel and arbitrary,

and then trying to evade the consequence by qualifications which make

the whole 'a clumsy piece of patchwork.' God the Father becomes a 'stern

tyrant,' and God the Son a 'passionate philanthropist.' Practically his

experience has confirmed this sentiment. He does 'really and truly love,

at all events, a large section of mankind, though pride and a love of

saying sharp things have made me, I am sorry to say, sometimes write as

if I did not,' and whatever he has tried to do, he has found the Roman

Catholic Church 'lying straight across his path.' Men who are

intellectually his inferiors and morally 'nothing at all extraordinary,'

have ordered him to take for granted their views upon law, morals, and

philosophy, and when he challenges their claim can only answer that he

is wicked for asking questions.

He fully admits the beauty of some of the types of character fostered by

the Roman Catholic Church, although they imply a false view of certain

Cardinal points of morality, and argues that to some temperaments they

may have a legitimate charm. But that does not diminish the strength of

his convictions that the dogmas are radically absurd and immoral, or

that the whole claim to authority is opposed to all rational progress.

In the Manning articles he ends by accepting the issue as between the

secular view and the claims of a priesthood to authority. In the last

resort it is a question whether State or Church shall rule. He prefers

the State, because it has more rational aims, uses more appropriate

means, has abler rulers, produces verifiable results, and has generally

'less nonsense about it.' The clergy are 'male old maids'; often very

clever, charitable, and of good intentions, but totally devoid of real

wisdom or force of mind or character, and capable on occasions of any

amount of spite, falsehood, and 'gentle cruelty.' It is impossible to

accept the claims of the priesthood to supernatural authority. If

ultimately a division has to be made, human reason will have to decide

in what shape the legal sanction, 'or, in other words, disciplined and

systematic physical force,' shall be used. We shall then come to the

_ultima ratio_, after all compromises have been tried. There may be an

inevitable conflict. The permanent principles of nature and society,

which are beyond all laws, will decide the issue. But Manning's is a

mere quack remedy.

This represents one aspect of Fitzjames's character. The struggle which

is going on is a struggle between priest and layman, mysticism and

common sense, claims to supernatural authority and clear downright

reasoning from experience, and upon all grounds of theory and practice

he is unequivocally on the side of reason. I need only add a remark or

two. In the first place, I think that he never materially altered this

position, but he was rather less inclined after a time to take up the

cudgels. He never lost a conviction of the importance of his 'sanction.'

He always held to the necessity of some kind of religious belief,

although the precise dogma to be maintained became rather more shadowy.

But, as the discussion went on, he saw that in practice his own

standing-ground was becoming weaker. The tendency of men who were

philosophically on his own side was to regard the whole doctrine of a

future life as not only beyond proof but beyond all legitimate

speculation. Hence he felt the force of the dilemma to which he was

exposed. A genuine religion, as he says in a remarkable letter, must be

founded, like all knowledge, on facts. Now the religions which include a

theology rest on no facts which can stand criticism. They are,

therefore, doomed to disappear. But the religions which exclude

theology--he mentions Buddhism and Positivism as examples--give no

adequate sanction. Hence, if theology goes, the moral tone of mankind

will be lowered. We shall become fiercer, more brutal, more sensual.

This, he admits, is a painful and even a revolting conclusion, and he

therefore does not care to enlarge upon it. He is in the position of

maintaining that a certain creed is at once necessary to the higher

interests of mankind, and incapable of being established, and he leaves

the matter there.

I may just add, that Fitzjames cared very little for what may be called

the scientific argument. He was indifferent to Darwinism and to theories

of evolution. They might be of historical interest, but did not affect

the main argument. The facts are here; how they came to be here is

altogether a minor question. Oddly enough, I find him expressing this

opinion before the 'Origin of Species' had brought the question to the

front. Reviewing General Jacob's 'Progress of Being' in the 'Saturday

Review 'of May 22, 1858, he remarks that the argument from development

is totally irrelevant. 'What difference can it make,' he asks, 'whether

millions of years ago our ancestors were semi-rational baboons?' This, I

may add, is also the old-fashioned empirical view. Mill, six years

later, speaks of Darwin's speculations, then familiar enough, with equal

indifference. In this, as in other important matters, Fitzjames

substantially adhered to his old views. To many of us on both sides

theories of evolution in one form or other seem to mark the greatest

advance of modern thought, or its most lamentable divergence from the

true line. To Fitzjames such theories seemed to be simply unimportant or

irrelevant to the great questions. Darwin was to his mind an ingenious

person spending immense labour upon the habits of worms, or in

speculating upon what may have happened millions of years ago. What does

it matter? Here we are--face to face with the same facts. Fitzjames, in

fact, agreed, though I fancy unconsciously, with Comte, who condemned

such speculations as 'otiose.' To know what the world was a billion

years ago matters no more than to know what there is on the other side

of the moon, or whether there is oxygen in the remotest of the fixed

stars. He looked with indifference, therefore, upon the application of

such theories to ethical or political problems. The indication is, I

think, worth giving; but I shall say nothing as to my own estimate of

the importance of the theories thus disregarded.

VI. THE CRIMINAL CODE

I return to the sphere upon which Fitzjames spent his main energies, and

in which, as I think, he did his most lasting work. Three months of the

spring of 1874 had been spent in consolidating the laws relating to the

government of India. About the same time, I may observe parenthetically,

he had a scheme for publishing his speeches in the Legislative Council;

and, at one period, hoped that Maine's might be included in the volume.

The publishers, however, declined to try this experiment upon the

strength of the English appetite for Indian matters; and the book was

dropped. He returned for a time to the Contract Law; but must soon have

given up the plan. He writes on September 23, 1874, that Macmillan has

applied to him for a new edition of his 'Criminal Law'; and that he has

been reading for some time with a view to it. He has been labouring

through 3,000 royal 8vo. pages of 'Russell on Crimes.' They are full of

irrelevant illustrations; and the arrangement is 'enough to make one go

crazy.' The 'plea of _autrefois acquit_ comes at the end of a chapter

upon burglary'--a fact to make even the ignorant shudder! He would like

to put into his book a penal code, a code of criminal procedure, and an

evidence code. 'I could do it too if it were not too much trouble, and

if a large part of the law were not too foolish to be codified.' He is,

however, so convinced of the impracticability of parliamentary help or

of a commission that he is much inclined to try. A fortnight later

(October 8) he has resolved to convert his second edition into a draft

penal code and code of criminal procedure.

The work grew upon his hands.[168] He found crudities in the earlier

work and a difficulty in stating the actual law from the absence of any

adequate or tolerably arranged text-book. Hence he resolved to make such

a book for himself, and to this task he devoted nearly all of what he

humorously called his leisure during the later part of 1874 and the

whole of 1875 and 1876. Moreover, he thought for a time that it would be

desirable to add full historical notes in order to explain various facts

of the law. These, however, were ultimately set aside and formed

materials for his later history. Thus the book ultimately took the form

simply of a 'Digest of the Criminal Law,' with an explanatory

introduction and notes upon the history of some of the legal doctrines

involved. It was published in the spring of 1877,[169] and, as he says

in a letter, it represented the hardest work he had ever done.

It coincided in part with still another hard piece of work. In December

1875 he was appointed Professor of Common Law at the Inns of Court. He

chose for the subject of his first course of lectures the law of

evidence. His Indian Code and the bill introduced by Coleridge in 1873

had made him thoroughly familiar with the minutiae of the subject. Here

again he was encountered by the same difficulty in a more palpable

shape. A lecturer naturally wishes to refer his hearers to a text-book.

But the only books to which he could refer his hearers filled thousands

of pages, and referred to many thousands of cases. The knowledge

obtained from such books and from continual practice in court may

ultimately lead a barrister to acquire comprehensive principles, or at

least an instinctive appreciation of their application in particular

cases. But to refer a student to such sources of information would be a

mockery. He wants a general plan of a district, and you turn him loose

in the forest to learn its paths by himself. Fitzjames accordingly set

to work to supply the want by himself framing a 'digest' of the English

Law of Evidence. Here was another case of 'boiling down,' with the

difficulty that he has to expound a law--and often an irrational

law--instead of making such a law as seems to him expedient. He

undoubtedly boiled his materials down to a small size. The 'Digest' in a

fourth edition contains 143 articles filling 155 moderate pages,

followed by a modest apparatus of notes. I believe that it has been

found practically useful, and an eminent judge has told me that he

always keeps it by him.

Fitzjames held his office of professor until he became a judge in 1879.

He had certainly one primary virtue in the position. He invariably began

his lecture while the clock was striking four and ceased while it was

striking five. He finally took leave of his pupils in an impressive

address when they presented him with a mass of violets and an ornamental

card from the students of each inn, with a kindly letter by which he was

unaffectedly gratified. His class certainly had the advantage of

listening to a teacher who had the closest practical familiarity with

the working of the law, who had laboured long and energetically to

extract the general principles embedded in a vast mass of precedents and

technical formulas, and who was eminently qualified to lay them down in

the language of plain common sense, without needless subtlety or

affectation of antiquarian knowledge. I can fully believe in the truth

of Sir C. P. Ilbert's remark that whatever the value of the codes in

other respects, their educational value must be considerable. They may

convince students that law is not a mere trackless jungle of arbitrary

rules to be picked up in detail, but that there is really somewhere to

be discovered a foundation of reason and common sense. It was one of

Fitzjames's favourite topics that the law was capable of being thus

exhibited; and that fifty years hence it would be a commonplace that it

would be treated in a corresponding spirit, and made a beautiful and

instructive branch of science.

The publication of these two books marked a rise in his general

reputation. In the introduction to the 'Digest of the Criminal Law' he

refers to the rejection of his 'Homicide Bill.' The objections then

assigned were equivalent to a challenge to show the possibility of

codifying. He had resolved to show the possibility by actually codifying

'as a private enterprise.' The book must therefore be regarded as 'an

appeal to the public at large' against the judgment passed upon his

undertaking by Parliament and by many eminent lawyers. He does not make

the appeal 'in a complaining spirit.' The subject, he thinks, 'loses

nothing by delay,' and he hopes that he has improved in this book upon

the definitions laid down in his previous attempts. In connection with

this I may mention an article which he contributed to the 'Nineteenth

Century' for September 1879 upon a scheme for 'improving the law by

private enterprise.' He suggests the formation of a Council of 'legal

literature,' to co-operate with the Councils for law-reporting and for

legal education. He sketches various schemes, some of which have been

since taken up, for improving the law and legal knowledge. Digests of

various departments of the law might be of great service as preparing

the way for codification and illustrating defects in the existing state

of the law. He also suggests the utility of a translation of the

year-books, the first sources of the legal antiquary; a continuation of

the State Trials, and an authentic collection of the various laws of the

British Empire. Sir C. P. Ilbert has lately drawn attention to the

importance of the last; and the new State Trials are in course of

publication. The Selden Society has undertaken some of the antiquarian

researches suggested.

Meanwhile his codification schemes were receiving a fresh impulse. When

preparing the 'Digest,' he reflected that it might be converted into a

penal code. He communicated this view to the Lord Chancellor (Cairns)

and to Sir John Holker (afterwards Lord Justice Holker), then

Attorney-General. He rejoiced for once in securing at last one real

convert. Sir John Holker, he says, appreciated the scheme with

'extraordinary quickness.' On August 2, 1877, he writes that he has just

received instructions from the Lord Chancellor to draw bills for a penal

code, to which he was soon afterwards directed to add a code of criminal

procedure. He set to work, and traversed once more the familiar ground.

The 'Digest,' indeed, only required to be recast to be converted into a

code. The measure was ready in June and was introduced into Parliament

by Sir John Holker in the session of 1878. It was received favourably,

and he reports that the Chancellor and the Solicitor-General, as well as

the Attorney-General, have become 'enthusiastic' in their approbation.

The House of Commons could not spare from more exciting occupations the

time necessary for its discussion. A Commission, however, was appointed,

consisting of Lord Blackburn, Mr. Justice Barry, Lord Justice Lush, and

himself to go into the subject. The Commission sat from November 1878 to

May 1879, and signed a report, written by Fitzjames, on June 12, 1879.

They met daily for over five months, discussed 'every line and nearly

every word of every section,' carefully examined all the authorities and

tested elaborately the completeness of the code. The discussions, I

gather, were not so harmonious as those in the Indian Council, and his

letters show that they sometimes tried his temper. The ultimate bill,

however, did not differ widely from the draft produced by Fitzjames, and

he was glad, he says,[170] that these thorough discussions brought to

light no serious defect in the 'Digest' upon which both draft-codes

were founded. The report was too late for any action to be taken in the

session of 1879. Cockburn wrote some observations, to which Fitzjames

(now a judge) replied in the 'Nineteenth Century' of January 1880. He

was studiously courteous to his critic, with whom he had some agreeable

intercourse when they went the next circuit together. I do not know

whether the fate of the measure was affected by Cockburn's opinion. In

any case the change of ministry in 1880 put an end to the prospects of

the code for the time. In 1882, to finish the story, the part relating

to procedure was announced as a Government measure in the Queen's

speech. That, however, was its last sign of life. The measure vanished

in the general vortex which swallows up such things, and with it

vanished any hopes which Fitzjames might still entertain of actually

codifying a part of English law.

VII. ECCLESIASTICAL CASES

Fitzjames's professional practice continued to be rather spasmodic;

important cases occurring at intervals, but no steady flow of profitable

work setting in. He was, however, sufficiently prosperous to be able to

retire altogether from journalism. The 'Pall Mall Gazette' during his

absence had naturally got into different grooves; he had ceased to

sympathise with some of its political views; and as he had not time to

throw himself so heartily into the work, he could no longer exercise the

old influence. A few articles in 1874 and 1875 were his last

contributions to the paper. He felt the unsatisfactory nature of the

employment. He calculates soon afterwards that his collected works would

fill some fifty volumes of the size of 'Liberty, Equality, Fraternity,'

and he is anxious to apply his energy to less ephemeral tasks. His

profession and his codes gave him work enough.

His most remarkable professional employment arose out of certain

ecclesiastical cases. Sir Francis Jeune, who was concerned in some of

them, has kindly described his impressions to me. Fitzjames's connection

with certain prosecutions directed against the ritualists arose from a

conversation between Sir F. Jeune, who was then junior counsel to the

English Church Union, and its secretary the late Sir Charles Young. A

counsel was required who should unite 'plenty of courage' to an intimate

knowledge of the Criminal Law and power of appreciating the results of

historical research. Fitzjames 'combined these requirements in a

wonderful way.' Sir F. Jeune makes reservations similar to those which I

have had to notice in other applications, as to Fitzjames's want of the

subtlety and closeness of reasoning characteristic of the greatest

lawyers. He saw things 'rather broadly,' and his literary habits tended

to distract him from the precise legal point. 'I always thought of his

mind,' says Sir Francis, 'as of a very powerful telescope pulled out

just a little too much.' The sharp definitions, perceptible sometimes to

inferior minds, were in his a little blurred. These peculiarities,

however, were even advantages in this special class of business. The

precedents and principles involved were rather vague, and much of the

work within the province rather of the historian than of the lawyer. It

involved questions as to the spirit in which the articles and rubrics

had been composed by their authors. The requirement of 'courage' was

amply satisfied. 'I shall never forget,' says Sir Francis, 'one

occasion' in which Fitzjames was urged to take a course which he thought

improper, though it was not unnaturally desired by irritated clients

fighting against what they considered to be harsh legal restraint.

Fitzjames at once made it clear that no client should make him deviate

from the path of professional propriety. He had, in fact, indignantly

refused, as I find from one of his letters, to adopt a position which

implied distrust of the impartiality of the judges.

Of the cases themselves I must say generally that they often provoked a

grim smile from the advocate. When, in earlier days, he had defended Dr.

Williams he had spoken not merely as an advocate, but as a man who had

felt that he was vindicating the intellectual liberty of the Church of

which he was a member. The cases in which he was now concerned could

appeal to him only as an advocate. The first in which he appeared,

February 16, 1876, was sufficiently grotesque.[171] A clergyman had

refused to administer the sacrament to a gentleman who had published a

volume of 'Selections' from the Bible--implying, it was suggested, that

he did not approve of the part not selected--and who had his doubts

about the devil. The clergyman was reported to have said, 'Let him sit

down and write a calm letter, and say he believes in the devil, and I

will give him the sacrament.' The only legitimate causes in a legal

sense for refusing the sacrament would be that a man was an 'open and

notorious evil liver,' or a 'common and notorious depraver of the Book

of Common Prayer.' The Court of Arches apparently held that the

gentleman came under this description; but the Judicial Committee of the

Privy Council, after hearing Fitzjames, decided that he did not. A man

might disbelieve in the devil, without being a 'notorious evil liver,'

however irrational may be his scepticism.

The most important of his appearances was in the Folkestone case.[172]

His 'opening argument, and even more his reply' (upon the appeal), 'were

masterpieces, and they obtained from the Privy Council a judgment in

very marked contrast to those which had preceded it.' His argument, as

Sir F. Jeune thinks, induced the Privy Council to some extent 'to

retrace, or at least seem to retrace, its steps.' The judgment

sanctioned what is known as the 'Eastern position,' and certain other

ritualistic practices. In another case,[173] it was decided, in

accordance with Fitzjames's argument, that a sculptured representation

of the Crucifixion, as opposed to the exhibition of a crucifix, was

lawful.

Fitzjames, in his letters at this time, gives his own view pretty

emphatically. While you, he says to Lord Lytton, (I shall speak of this

correspondence directly) 'are fighting with famine in India, I am

struggling over albs and chasubles, and superstitions not more

reasonable than those about Vishnu and Shiva.' 'I have been passionately

labouring for the last nine days' (he says a little later in regard to

the Folkestone case) 'for the liberty of the clergy to dress themselves

in certain garments and stand in particular attitudes. All my powers of

mind and body were devoted to these important objects, till I dreamed of

chasubles and wafers.' Some years ago, he remarks, certain natives of

India, having an interest in an appeal to the Privy Council, caught an

idiot and slew him on a hill-top as a sacrifice to the deity who

presides over the deliberations of that body. A being capable of being

propitiated in that fashion might take an interest in squabbles over

wafers and chasubles. 'It is a foolish subject to joke about,' he adds,

'for beyond all manner of doubt my clients' real object is to get as

much idolatry as possible into the poor old Church of England, and I

believe that they will sooner or later succeed in making the whole thing

look absurd and breaking it up.' Whether that would be a good thing or

not is a matter upon which he feels unable to make up his mind.

Amid these various occupations, Fitzjames, however fully occupied,

showed no symptoms of being over-worked or over-worried. He had, in a

remarkable degree, the power of taking up and dismissing from his mind

the matters in each of which he was alternately absorbed. He could throw

himself into codifying, or speculating, or getting up briefs at any

moment and in any surroundings, and dismiss each occupation with equal

readiness. He found time, too, for a good deal of such society as he

loved. He heartily enjoyed little holiday tours, going occasionally to

the Continent, and more frequently to some of the friends to whom he

always adhered and to whom he could pour out his opinions frankly and

fully. Maine was almost his next-door neighbour, and frequently

consulted him upon Indian matters. He took his Sunday walks with

Carlyle; and he went to stay with Froude, in whose society he especially

delighted, in a summer residence in Devonshire. He frequently visited

his old friend Venables in Wales, and occasionally spent a few days with

members of his own family. Although ready to take up a bit of work,

literary or professional, at any moment, he never appeared to be

preoccupied; and could discourse with the utmost interest upon his

favourite topics, though he sometimes calls himself 'unsociable'--by

which he apparently means that he cared as little as might be for the

unsociable kind of recreation. He was a member of the 'Cosmopolitan'; he

belonged also to 'The Club' and to the 'Literary Society,' and he

heartily enjoyed meeting distinguished contemporaries. In 1874 he paid

a visit to his friends the Stracheys, who had taken for the summer a

house at Anaverna, near Ravensdale, Co. Louth, in Ireland. He liked it

so much that he resolved to become their successor. He took the house

accordingly, and there spent his holidays in the summer of 1875 and the

succeeding years so long as his strength lasted.

Anaverna is a village about five miles of Dundalk, at the foot of a

range of grassy hills rising to a height of some 1,700 feet, within a

well-wooded country below. The house stood in grounds of about sixty

acres, including a wood and traversed by a mountain-stream. Fitzjames

enjoyed walks over the hills, and, in the last years, drives in the

lower country. To this place, and the quiet life there, Fitzjames and

his family became most warmly attached. His letters abound in

enthusiastic remarks about the scenery, and describe his pleasure in the

intercourse with neighbours of all classes, and in the visits of old

friends who came to stay with him. A good deal of his later writing was

done there.

VIII. CORRESPONDENCE WITH LORD LYTTON

I have now to speak of a new friendship which played a very important

part in his life from this time. In January 1876, Lord Lytton[174] was

appointed Governor-General of India. In February, Fitzjames dined in his

company at Lord Arthur Russell's. They went afterwards to the

'Cosmopolitan,' and by the end of the evening had formed a close

friendship, which was only to end with their lives. Some of Fitzjames's

friends were surprised at the singular strength of attachment between

two men so conspicuously different in mind and character. Some

contrasts, as everyone observes, rather facilitate than impede

friendship; but in this case the opposition might seem to be too

decided. The explanation is not, I think, difficult. Lord Lytton, in the

first place, was a singularly charming person. He was not only a

delightful companion, but he was delightful because obviously

open-hearted, enthusiastic, and exceedingly affectionate. To such charms

Fitzjames was no more obdurate than his fellows. Lord Lytton, it is

true, was essentially a man of letters; he was a poet and a writer of

facile and brilliant prose; and Fitzjames acknowledged, or rather

claimed, a comparative insensibility to excellence of that kind. Upon

some faults, often combined with a literary temperament, he was perhaps

inclined to be rather too severe. He could feel nothing but hearty

contempt for a man who lapped himself in aesthetic indulgences, and

boasted of luxurious indifference to the great problems of the day. Such

an excess of sensibility, again, as makes a man nervously unwilling to

reveal his real thoughts, or to take part in a frank discussion of

principles, would be an obstacle to intimacy. Fitzjames might not

improbably decline to take the trouble necessary to soothe the vanity,

or thaw the shyness of such a person, and might perhaps too hastily set

him down for a coward or a 'poor creature.' But when, as was often the

case, the sensitive person was encouraged to openness by Fitzjames's

downright ways, the implied compliment would be fully recognised. Lord

Lytton, as an accomplished man of the world, was of course free from any

awkward bashfulness; and at the very first interview was ready to meet

Fitzjames half-way. His enthusiasm accordingly met with a rapid return.

One of Fitzjames's favourite assertions was that nobody but a humbug

could deny the pleasantness of flattery; and, in fact, I think that we

all like it till we discover it to be flattery. What he really meant was

that he liked downright, open-hearted and perfectly sincere praise; and

both parties to this alliance could praise each other both sincerely and

heartily.

There was, however, another reason which helps to explain the great

value which Fitzjames attached from the first to this intercourse. It

comes out in almost every letter in his part of their correspondence.

Fitzjames calls himself 'self-contained'; and the epithet is quite

appropriate if it is taken as not implying any connotation of real

selfishness. He was, that is, sufficient for himself; he was contented

so long as he could feel, as he always had a right to feel, that he was

doing his work thoroughly to the very best of his abilities. He could

dispense with much appreciation from outside, though it was unaffectedly

welcome when it came from competent persons. He had too much

self-reliance to be dependent upon any endorsement by others. But,

though this might be perfectly true, he was at bottom sensitive enough,

and it was also true that he felt keenly certain consequences of his

position. His professional career, as I have so often said, had been a

series of tantalising half-successes; he was always being baffled by

cross winds at the harbour-mouth. Although his courage never failed for

an instant, he could not but have a certain sense of isolation or want

of support. This was especially true of the codification schemes which

occupied so much of his thought. He had been crying in the market-place

and no man heeded him. Yet his voice was powerful enough morally as well

as physically. He had the warmest of friends. Some of them were devoted

to pursuits which had nothing to do with law and could only express a

vague general sympathy. They admired his general vigour, but were not

specially interested in the ends to which it was applied. Others, on the

contrary, were politicians and lawyers who could have given him

effectual help. But they almost unanimously refused to take his plans

seriously. The British barrister and member of Parliament looked upon

codification as at best a harmless fancy. 'A jurist,' Fitzjames

sometimes remarks in a joke, which was not all joking, is a 'fool who

cannot get briefs.' That represents the view generally taken of his own

energy. It was possibly admirable, certainly unobjectionable, but not to

the purpose. The statesman saw little chance of gaining votes by offers

of a code, and the successful lawyer was too much immersed in his briefs

to care about investigating general principles of law. At last, as I

have said, Fitzjames got a disciple or two in high places, but even then

his most telling argument seems to have been less that codification was

good in itself than that success in passing a code would be a feather in

the Government cap. Up to 1876 he had not even got so far. Russell

Gurney, indeed, had helped him, and Coleridge had shown an interest in

his work; but the general answer to his appeals was even more provoking

than opposition; it was the reply of stolid indifference.

In India his hands had been free. There he had really done a genuine and

big stroke of work. The contrast to English methods, and the failure of

his attempts to drive his ideas into the heads of any capable allies,

had strengthened his antipathy to the home system, though it had not

discouraged him from work. But now at last he had made a real and

enthusiastic convert; and that convert a Governor-General, who would be

able to become an effective agent in applying his ideas. The longing for

real sympathy, scarcely perhaps admitted even to himself, had been

always in existence, and its full gratification stimulated his new

friendship to a rapid growth. Lord Lytton left for India on March 1,

1876. Before he left, Fitzjames had already written for him an

elaborate exposition of the Indian administrative system, which Lytton

compared to a 'policeman's bull's-eye.' It lighted up the mysteries of

Indian administration. Fitzjames writes to him on the day of his

departure: 'You have no conception of the pleasure which a man like me

feels in meeting with one who really appreciates and is willing to make

use of the knowledge which he has gained with great labour and much

thought. I have had compliments of all sorts till I have become almost

sick of them, but you have paid me the one compliment which goes

straight to my heart--the compliment of caring to hear what I have to

say and seeing the point of it.' 'You have managed,' he afterwards says,

'to draw me out of my shell as no one else ever did.' Three years later

he still dwells upon the same point. You, he says (January 27, 1879)

'are the only prominent public man who ever understood my way of looking

at things, or thought it in the least worth understanding.' 'Others have

taken me for a clever fellow with dangerous views.' 'You have not only

understood me, but, in your warm-hearted, affectionate way, exaggerated

beyond all measure the value of my sayings and doings. You have not,

however, exaggerated in the least my regard for you, and my desire to be

of service to you.'

These words give the key-note of the correspondence, and may help to

explain the rapid growth and singular strength of the friendship between

two men whose personal intercourse had been limited to less than a

month. Fitzjames threatened, and the 'threat' was fully executed, to

become a voluminous correspondent. I cannot say, indeed, which

correspondent wrote most frankly and abundantly. The letter from which I

have quoted the last passage is in answer to one from Lord Lytton,

filling thirty sheets, written, as he says, 'in a hurry,' but, as

Fitzjames declares, with 'only two slips of the pen, without an

"erasure," in a handwriting which fills me with helpless admiration,'

and in a style which cannot be equalled by any journalist in England.

'And this you do by way of amusing yourself while you are governing an

empire in war-time,' and yet compliment me for writing at leisure

moments during my vacations! Fitzjames, however, does his best to keep

pace with his correspondent. Some of his letters run to fourteen and

fifteen sheets; and he snatches intervals from worrying labours on his

codes, or on the bench or on commissions, or sitting up at nights, to

pour out discourses which, though he wrote very fast, must often have

taken a couple of hours to set down. The correspondence was often very

confidential. Some of Lytton's letters had to be kept under lock and key

or put in the fire for safer guardianship. Lytton had a private press at

which some of his correspondent's letters were printed, and Fitzjames

warns him against the wiles of editors of newspapers in a land where

subordinates are not inaccessible to corruption. It would, however, not

be in my power, even if I had the will, to reveal any secrets of state.

Fitzjames's letters indeed (I have not seen Lord Lytton's), so far as

they are devoted to politics, deal mainly with general considerations.

It would be idle to go far into these matters now. It is indeed sad to

turn over letters, glowing with strong convictions as well as warm

affection and showing the keenest interest in the affairs of the time,

and to feel how completely they belong to the past. Some of the

questions discussed might no doubt become interesting again at any

moment; but for the present they belong to the empire of Dryasdust.

Historians will have to form judgments of the merits of Lord Lytton's

policy in regard to Afghanistan; but I cannot assume that my readers

will be hankering for information as to the special views taken at the

time by a man who was, after all, a spectator at some distance. I

therefore give fair warning to historical inquirers that they will get

no help from me.

When the earlier letters were written the Afghan troubles had not become

acute. Fitzjames deals with a variety of matters, some of which, as he

of course recognises, lie beyond his special competence. He writes at

considerable length, for example, upon the depreciation of the rupee,

though he does not profess to be an economist. He gives his views as to

the right principles not only of civil, but of military organisation;

and discusses with great interest the introduction of natives into the

civil service. 'In the proper solution of that question,' he says, 'lies

the fate of the empire.' Our great danger is the introduction of a

'hidebound' and mechanical administrative system worked by third-rate

Europeans and denationalised natives. It is therefore eminently

desirable to find means of employing natives of a superior class, though

the precise means must be decided by men of greater special experience.

He writes much, again, upon the famine in Madras, in regard to which he

had many communications with his brother-in-law, Cunningham, then

Advocate-General of the Presidency. He was strongly impressed by the

vast importance of wise precautions against the future occurrence of

such calamities.

Naturally, however, he dilates most fully upon questions of

codification, and upon this head his letters tend to expand into small

state-papers. Soon after Lord Lytton's departure there was some talk of

Fitzjames's resuming his old place upon the retirement of Lord Hobhouse,

by whom he had been succeeded. It went so far that Maine asked him to

state his views for the information of Lord Salisbury. Fitzjames felt

all his old eagerness. 'The prospect,' he says, 'of helping you and

John Strachey to govern an empire,' and to carry out schemes which will

leave a permanent mark upon history, is 'all but irresistibly

attractive.' He knew, indeed, in his heart that it was impossible. He

could not again leave his family, the elder of whom were growing beyond

childhood, and accept a position which would leave him stranded after

another five years. He therefore returned a negative, though he tried

for a time to leave just a loophole for acceptance in case the terms of

the tenure could be altered. In fact, however, there could be no real

possibility of return, and Mr. Whitley Stokes succeeded to the

appointment. Towards the end of Lord Lytton's governorship there was

again some talk of his going out upon a special mission in regard to the

same subject. But this, too, was little more than a dream, though he

could not help 'playing with' the thought for a time.

Meanwhile he corresponded with Lord Lytton upon various measures. He

elaborately annotated the drafts of at least one important bill; he

submitted remarks to be laid before the Council at Lord Lytton's

request, and finally he wrote an elaborate minute upon codification

generally. I need only say that, in accordance with what he had said in

his last speeches at Calcutta, he held that nearly enough had been done

in the way of codifying for India. He insists, too, upon the danger of

dealing with certain branches of legislation, where the codification

might tend to introduce into India the subtleties and intricacies of

some points of English law. Part of this correspondence was taking place

during the exciting events in Afghanistan; and he then observes that

after all codification is 'only a luxury,' and must for the present give

way to more important matters.

Fitzjames, of course, followed the development of the Government policy

in regard to Russia and the Afghans with extreme interest. He looked

with contempt upon the various fluctuations of popular sentiment at the

period of the Bulgarian atrocities, and during the Russian war with

Turkey; and he expresses very scanty respect for the policy of the

English Government at that period. He was occasionally tempted to take

to his old warfare in the press; but he had resolved to give up

anonymous journalism. He felt, too, that such articles would give the

impression that they were inspired by the Indian Government; and he

thought it better to reserve himself for occasions on which he could

appear openly in his own person. Such occasions offered themselves more

than once, and he seized them with all his old vigour.

A speech made by Bright provoked the first noticeable utterance.

Fitzjames wrote two letters to the 'Times,' which appeared December 27,

1877, and January 4, 1878, with the heading 'Manchester in India.'

Bright represented the political school which he most detested.

According to Bright (or Fitzjames's version of Bright, which was, I dare

say, accurate), the British rule in India was the result of 'ambition,

conquest, and crime.' We owed, therefore, a heavy debt to the natives;

and, instead of paying it, we kept up a cumbrous system of government,

which provided for members of the British upper classes, and failed to

promote the material welfare of our subjects. The special instance

alleged was the want of proper irrigation. To this Fitzjames replied in

his first letter that we had, in fact, done as much as could be done,

and possibly more than was judicious; and he accuses his antagonist of

gross ignorance of the facts. His wrath, however, was really aroused by

the moral assumptions involved. Bright, he thought, represented the view

of the commonplace shopkeeper, intensified by the prejudices of the

Quaker. To him ambition and conquest naturally represented simple

crimes. Ambition, reports Fitzjames, is the incentive to 'all manly

virtues'; and conquest an essential factor in the building up of all

nations. We should be proud, not ashamed, to be the successors of Clive

and Warren Hastings and their like. They and we are joint architects of

the bridge by which India has passed from being a land of cruel wars,

ghastly superstitions, and wasting plague and famine, to be at least a

land of peace, order, and vast possibilities. The supports of the bridge

are force and justice. Force without justice was the old scourge of

India; but justice without force means the pursuit of unattainable

ideals. He speaks 'from the fulness of his heart,' and impressed by the

greatest sight he had ever seen.

Fitzjames kept silence for a time, though it was a grief to him, but he

broke out again in October 1878, during the first advance into

Afghanistan. Party feeling was running high, and Fitzjames had to

encounter Lord Lawrence, Lord Northbrook, Sir W. Harcourt, and other

able antagonists. He mentions that he wrote his first letter, which

fills more than two columns of the 'Times,' four times over. I should

doubt whether he ever wrote any other such paper twice. The sense of

responsibility shown by this excessive care led him also to confine

himself to a single issue, upon which he could speak most effectively,

out of several that might be raised. He will not trespass upon the

ground of military experts, but, upon the grounds of general policy,

supports a thesis which goes to the root of the matter. The advance of

the Russian power in Central Asia makes it desirable for us to secure a

satisfactory frontier. The position of the Russians, he urges, is

analogous to our own position in India in the days of Wellesley. It is

idle to denounce them for acting as we acted; but it is clear that the

two empires will ultimately become conterminous; and it is, therefore,

essential for us that the dividing line should be so drawn as to place

us in perfect security. Though Fitzjames declined to draw any specific

moral, his antagonists insisted upon drawing one for him. He must be

meaning to insinuate that we were to disregard any rights of the Afghans

which might conflict with our alleged interests.

This point was touched in a letter by Lord Lawrence, to which Fitzjames

felt bound to reply. He was reluctant to do so, because he was on terms

of personal friendship with Lawrence, whose daughter had recently become

the wife of Henry Cunningham. 'I have seldom,' says Fitzjames (October

4, 1877), 'met a more cheery, vivacious, healthy-minded old hero.'

Lawrence, he is glad to think, took a fancy to him, and frequently

poured himself out abundantly upon Indian topics. Their friendship,

happily, was not interrupted by the controversy, in which Fitzjames was

scrupulously respectful. This, again, raised the old question about

International Law, which Fitzjames, as a good Austinian, regarded mainly

as a figment. The moral point, however, is the only one of general

interest. Are we bound to treat semi-barbarous nations on the same terms

as we consider to govern our relations with France or Germany? Or are we

morally entitled to take into account the fact that they are

semi-barbarous? Fitzjames's view may be briefly defined. He repudiates

emphatically the charge of immorality. He does not hold the opinion

imputed to him by his antagonists that we may take what territory we

please, regardless of the interests of barbarous natives. He repeats his

assertion that our rule rests upon justice as well as force. He insists

upon the same point, I may add, in his private letters to Lytton, and

declares that it is even more important to be straightforward and to

keep our word sacredly with Afghans than with civilised races. He writes

very warmly upon the danger of exacting excessive punishment for the

murder of Cavagnari. We ought to prove to the natives that our rule is

superior to theirs, and that we are strong enough to keep our heads and

be merciful even in the face of insults. But then, we have to act upon

our own conceptions of morality, and must not be hampered by regarding

nations as fictitious persons with indisputable rights. When we have to

do with semi-savages, we may have to enforce our own views upon them by

the strong hand. Some one, for example, had maintained that the eighth

commandment forbade us to interfere with independent tribes; Fitzjames

observes (December 25, 1878) that they have just the same right to be

independent as the Algerine pirates to infest the Straits of Gibraltar.

A parcel of thieves and robbers who happen to have got hold of the main

highway of the world have not, therefore, a right to hold it against all

comers. If we find it necessary to occupy the passes, we shall have to

give them a lesson on the eighth commandment. Nobody will ever persuade

him that any people, excepting 'a few strapping fellows between twenty

and forty,' really prefer cruel anarchy and a life of murder and plunder

to peace and order. Nor will anyone persuade him that Englishmen, backed

by Sikhs and Ghoorkas, could not, if necessary, reduce the wild tribes

to order, and 'sow the first seeds of civilisation' in the mountains.

To some people it may seem that the emphasis is laid too much upon force

and too little upon justice. I am only concerned to say that Fitzjames's

whole theory is based upon the view--sufficiently expounded

already--that force, order, and justice require a firm basis of

'coercion'; and that, while we must be strictly just, according to our

own views of justice, we must not allow our hands to be tied by hollow

fictions about the 'rights' of races really unfit for the exercise of

the corresponding duties. On this ground, he holds it to be possible to

have an imperial 'policy which shall yet be thoroughly unjingo-like.'

Upon this I need insist no further. I shall only say that he always

regarded the British rule in India as the greatest achievement of the

race; that he held it to be the one thoroughly satisfactory bit of work

that we were now doing; and, further, that he held Lytton to be a worthy

representative of our true policy. A letter which strikingly illustrates

his enthusiasm was written in prospect of the great durbar at Delhi when

the Queen was proclaimed Empress of India (January 1, 1877). No man, he

thinks (September 6, 1876), ever had before or ever will have again so

splendid an opportunity for making a great speech and compressing into a

few words a statement of the essential spirit of the English rule,

satisfactory at once to ourselves and to our subjects. 'I am no poet,'

he says, 'as you are, but Delhi made my soul burn within me, and I never

heard "God save the Queen" or saw the Union Jack flying in the heart of

India without feeling the tears in my eyes, which are not much used to

tears.' He becomes poetical for once; he applies the lines of 'that

feeble poem Maud' to the Englishmen who are lying beneath the Cashmire

Gate, and fancies that we could say of Hastings and Clive, and many

another old hero, that their hearts must 'start and tremble under our

feet, though they have lain for a century dead.' Then he turns to his

favourite 'Christmas Hymn,' and shows how, with certain easy

emendations, Milton's announcement of the universal peace, when the

'Kings sate still with awful eye,' might be applied to the _Pax

Britannica_ in India. He afterwards made various suggestions, and even

wrote a kind of tentative draft, from which he was pleased to find that

Lytton accepted some suggestions. A rather quaint suggestion of a

similar kind is discussed in a later letter. Why should not a 'moral

text-book' for Indian schools be issued in the Queen's name? It might

contain striking passages from the Bible, the Koran, and the Vedas about

the Divine Being; with parables and impressive precepts from various

sources; and would in time, he thinks, produce an enormous moral effect.

In regard to Lytton himself, he was never tired of expressing the

warmest approbation. He sympathises with him even painfully during the

anxious times which followed the murder of Cavagnari. He remarks that,

what with famine and currency questions and Afghan troubles, Lytton has

had as heavy a burthen to bear as Lord Canning during the mutiny. He has

borne it with extraordinary gallantry and cool judgment, and will have a

place beside Hastings and Wellesley and Dalhousie. He will come back

with a splendid reputation, both as a statesman and a man of genius, and

it will be in his power to occupy a unique position in the political

world.

Fitzjames's letters abound with such assurances, which were fully as

sincere as they were cordial. I must also say that he shows his

sincerity on occasions by frankly criticising some details of Lytton's

policy, and by discharging the still more painful duty of mentioning

unfavourable rumours as to his friend's conduct as Viceroy. The pain is

obviously great, and the exultation correspondingly marked, when

Lytton's frank reply convinces him that the rumours were merely the echo

of utterly groundless slander. I will only add that the letters contain,

as might be expected, some downright expressions of disapproval of some

persons, though never without sufficient reason for speaking his mind;

and that, on the other hand, there are equally warm praises of the many

friends whom he heartily admired. He can never speak warmly enough of

Sir John Strachey, Sir Robert Egerton, and others, in whom he believed

with his usual fervour. Fitzjames's belief in his friends and his

estimate of their talents and virtues was always of the most cordial. I

will quote a few phrases from one of his letters, because they refer to

a friendship which I shall elsewhere have no opportunity of mentioning.

Alfred Lyall, he says, 'is one of the finest fellows I ever knew in my

life. If you cultivate him a little you will find him a man of more

knowledge, more imagination (in the lofty and eminently complimentary

sense of the word), more intelligent interest in the wonders of India,

than almost anyone else in the country.' 'I talked to him last Sunday

for nearly two hours incessantly on Indian matters and on religion and

morals, and left off at last only because I could not walk up and down

any longer in common duty to my wife, who was waiting dinner. It will

be, as Byron says of Pope, a sin and a shame and a damnation if you and

he don't come together. He is the one man (except Maine) I ever met who

seemed to me to see the splendour of India, the things which have made

me feel what I have so often said to you about it, and which make me

willing and eager to do anything on earth to help you.'

I have dwelt at length upon these letters, because they seem to me

eminently characteristic, and partly also because they explain

Fitzjames's feelings at the time. He was becoming more and more

conscious of his separation from the Liberal party. 'Why are you,' asked

one of his friends, who was a thorough partisan, 'such a devil in

politics?' It was because he was becoming more and more convinced that

English political life was contemptible; that with some it was like a

'cricket-match'--a mere game played without conviction for the sake of

place or honour; that even where there were real convictions, they were

such as could be adapted to the petty tastes of the vulgar and

commonplace part of society; and that it was pitiable to see a body of

six or seven hundred of the ablest men in the country occupied mainly in

thwarting each other, making rational legislation impossible, and bowing

more and more before the 'sons of Zeruiah,' who would be too strong for

them in the end. For behind all this was arising a social and religious

revolution, the end of which could be foreseen by no one. I dread, he

says, the spread of my own opinions. The whole of society seems to be

exposed to disintegrating influences. Young men have ceased to care for

theology at all. He quotes a phrase which he has heard attributed to a

very clever and amiable undergraduate whose tutor had spoken to him

about going to chapel. If, said the pupil, there be really such a deity

as you suppose, it appears to me that to praise him would be impertinent

and to pray to him superfluous. What is to happen when such opinions are

generally spread, and when the populace discovers that their superiors

do not really hold the creeds which they have declared to be essential

to society?

IX. APPOINTMENT TO A JUDGESHIP

Meanwhile, Fitzjames had been receiving various proofs of rising

reputation. In January 1877 he was made K.C.S.I. He expresses his

pleasure at having the name of India thus 'stamped upon him'; and speaks

of the very friendly letter in which Lord Salisbury had announced the

honour, and of his gratitude for Lord Lytton's share in procuring it.

The University of Oxford gave him the honorary D.C.L. degree in 1878. He

was member of a Commission upon fugitive slaves in 1876, and of a

Commission upon extradition in 1878.[175] He was also a member of the

Copyright Commission appointed in October 1875, which reported in 1878.

He agreed with the majority and contributed a digest of the law of

copyright. He had occasional reasons to expect an elevation to the

bench; but was as often disappointed. Upon the death of Russell Gurney

(May 31, 1878) there was some talk of his becoming Recorder of London;

but he did not much regret the speedy disappearance of this prospect,

though it had its attractions. He was three times (1873, 1877, and 1878)

appointed to act as judge upon circuit. When at last he was entrusted

with the preparation of the Criminal Code in 1877, the Attorney-General

expressed the opinion that a satisfactory execution of the task would

entitle him to a judgeship, but could not give any definite pledge.

When, however, in July 1878, it was determined to appoint a Commission

to prepare a code for Parliament, Fitzjames said that he would be unable

to undertake a laborious duty which would make practice at the bar

impossible for the time, without some assurance of a judgeship. The

Chancellor thereupon wrote a letter, which, though an explicit promise

could not be made, virtually amounted to a promise. In accordance with

this he was appointed on January 3, 1879, to a judgeship which had

become vacant by the resignation of Sir Anthony Cleasby. A notorious

journalist asserted that the promise had been made on consideration of

his writing in the papers on behalf of the Indian Government. The

statement is only worth notice as an ingenious inversion of the truth.

So far from requiring any external impulse to write on Lytton's behalf,

Fitzjames could hardly refrain from writing when its expediency was

doubtful. When the occasion for a word in season offered itself, hardly

any threats or promises could have induced him to keep silence. 'Judge

or no judge,' he observes more than once, 'I shall be forced to write'

if certain contingencies present themselves.

I give the letter in which he announced his appointment to his

sister-in-law (January 4, 1879):--'My dearest Emily, I write to tell you

that I am out of all my troubles. Cleasby has unexpectedly resigned, and

I am to succeed him. I know how this news will delight you, and I hasten

to send it, though I hope to see you to-morrow. It gives me a strange,

satisfied, and yet half-pathetic feeling. One great battle is won, and

one great object obtained; and now I am free to turn my mind to objects

which have long occupied a great part of it, so far as my leisure will

allow. I hope I have not been anxious to any unworthy or unmanly extent

about the various trials which are now over.

'In such moments as this, one's heart turns to those one loves. Dearest

Emily, may all good attend you, and may I and mine be able to do our

shares towards getting you the happiness you so pre-eminently deserve. I

don't know what to wish for; but I wish for all that is best and most

for your good in the widest sense which the word can have. Ever your

loving brother, J. F. S.'

* * * * *

In giving the news to Lord Lytton, he observes that he feels like a man

who has got into a comfortable carriage on a turnpike road after

scrambling over pathless mountain ranges. His business since his return

has been too irregular and capricious to allow him to feel himself at

his ease. That being over, he is resolved to make the bench a 'base of

operations' and 'not a mere shelf.'

The hint about 'leisure' in the letter to Lady Egerton will be

understood. Leisure in his mouth meant an opportunity for doing more

than his duties required. He calculated on a previous occasion that, if

he were a judge, he should have at his disposal three or, by good

management, four working hours at his own disposal. I find him,

characteristically enough, observing in an article of about the same

date that the puisne judges have quite enough work without imposing any

extra labour whatever upon them. But he tacitly assumed that he was to

carry a double burthen. How he turned his time to account will appear

directly. I need only say here that he unfeignedly enjoyed his new

position. He often said that he could imagine nothing more congenial to

all his wishes. He observes frequently that the judicial work is the

only part of our administrative system which is still in a thoroughly

satisfactory state. He felt as one who had got into a safe place of

refuge, from which he could look out with pity upon those who were

doomed to toil and moil, in an unhealthy atmosphere, as politicians,

public officials, and journalists. He could learn to be philosophical

even about the fate of his penal code.

NOTE

***My nephew, Sir Herbert Stephen, has kindly sent me the enclosed note

in regard to my brother's life in Ireland.

L. S.

In 1869 my father took for the long vacation a house called

Dromquina, on the northern bank of the Kenmare River, about three

miles from Kenmare. The 'river' is an arm of the sea, something

like forty miles long, and at Dromquina, I suppose, not above half

a mile wide. He had heard of the place by reason of his friend, Mr.

Froude, living at that time at Lord Lansdowne's house, Derreen, in

Killmakalogue Harbour, about fifteen miles lower down on the

opposite shore. In a thickly populated country this would not

constitute a near neighbourhood, but we made excursions to Derreen,

either in a boat or in Mr. Froude's yacht, several times in the

course of the summer. It is in the neighbourhood of the Kenmare

River and Bantry Bay that Mr. Froude laid the scene of 'The Two

Chiefs of Dunboy.'

Dromquina stands close to the water's edge, and we had several

boats and the services of some half-dozen fishermen at our command.

My father had learnt to row at Eton, and during this summer he

always took an oar--and did good service with it--upon our frequent

excursions on the water. I remember, by the way, that many years

later, after he had been for some time a judge, he was one day

rowing in a boat with a party of friends on the Thames, and was

much gratified by my telling him what hard work I had found it,

while steering, to keep the boat straight, because he pulled so

much harder than the man who was rowing bow, a sturdy athlete,

twenty years his junior, but no waterman.

He liked the life at Dromquina so much that in 1873, after his

return from India, he took the Bishop of Limerick's house,

Parknasilla, in Sneem Harbour, just opposite Derreen. That year, if

I remember right, he took some shooting, to which we had to drive a

considerable distance. In one year or the other I went out shooting

with him two or three times. I do not think he ever had any

shooting later: though, considering how little practice he can have

had, he was a decidedly good shot. The country was rough, and the

bags, though not heavy in quantity--we were lucky if we saw ten

brace of grouse--presented a rather extensive variety of kind.

During these two summers my father indulged himself freely in his

favourite amusement of taking long walks, but also did a good deal

of rowing and sailing. He had had my brothers and me taught to swim

in a previous summer at the sea-side, and at Dromquina decided that

we ought to be able to swim confidently in our clothes. In order to

test our possession of this accomplishment, he one day took us out

himself in a boat, and told me to sit on the gunwale, after which

he artfully engaged me in conversation until he saw that I was not

expecting my plunge, when he suddenly shoved me overboard. We all

passed the ordeal with credit.

In 1873 he meditated building a house on the Kenmare River, but in

the course of that summer he went to visit Sir John Strachey, who

was then living at Anaverna House, at Ravensdale in County Louth.

The Stracheys left it not long after, and we went there for the

first time in 1875. Some years later my father took a lease of it,

and there he spent every long vacation till 1891 inclusive, and the

greater part of 1892.

For this place my father in particular, as well as his family

generally, had from the first a strong affection. The house stands

rather high, on the extreme southern slope of the Mourne Mountains,

just within the border of the county of Louth and the province of

Leinster. Behind and above the house to the north, the 'mountains'

(moors varying in height from 1,000 to 2,700 feet) stretch for many

miles, enclosing the natural harbour known as Carlingford Lough.

Southwards there is a view across a comparatively level plain as

far as the Wicklow Mountains, just beyond Dublin, and about sixty

miles away. The sea is visible at no great distance on the east,

and on fine days we could always see the Isle of Man, about eighty

miles to the north-east, from any of several hill-tops within an

hour's walk of the house. My father was therefore able to take to

his heart's content the long walks that had always been his

favourite amusement. He also devoted himself with the greatest

enthusiasm to the improvement of the house and grounds. For many

years before the Stracheys' short tenancy it had been unoccupied,

and the grounds--of which there were about seventy acres--were at

first very much overgrown, especially with laurels, which, when

neglected, grow in that country in almost disgusting luxuriance. My

father therefore occupied himself a good deal with amateur

forestry, and became, considering that he first turned his

attention to the subject at the age of forty-six, a rather expert

woodsman. A good deal of tree-felling was necessary, both in the

interest of the trees and for the improvement of the views from the

house and its immediate neighbourhood. My father had a Canadian

axe, given to him by Frederick Gibbs, of which he was extremely

fond, and with which he did a great deal of work. He was never

reduced to cutting down a tree merely for exercise, but always

first satisfied himself with much care that its removal would be an

improvement. Another point in his wood-cutting that I always

admired was that, when the more amusing part of the

operation--which is cutting the tree down--was over, he invariably

took personally his full share of the comparatively uninteresting

work of sawing up the trunk, and disposing in an orderly manner of

the branches. He also took great pains to cut his trees as close to

the ground as possible, so as not to sacrifice the good timber at

the butt, or leave a tall or ragged stump to disfigure the ground

afterwards.

Another labour in which he took much interest was the making of

paths through a little wood running up the hill-side behind the

house, and the engineering of a stream which descended through it,

and, being flooded two or three times every year, required a good

deal of management, the more so as the house was supplied by it

with water through an artificial streamlet made for the purpose. In

these pursuits my father was always assisted by the village

post-master, an old man named Morton, of picturesque appearance and

conversation, and the consultations between the two used to be full

of interest. Morton spoke with a strong brogue, and combined

several other pursuits with that of post-master, the universality

of his aptitudes making him an interesting companion, and my father

had a great regard for him. He died a few months ago, being then, I

believe, over eighty years of age.

Another out-door amusement that my father enjoyed was shooting at a

mark with a Snider rifle. The nature of the grounds made it easy to

get a safe hundred yards' range within three minutes' walk of the

front door, and three or four hundred yards by going a little

farther. We practised in this way pretty often, and I think the

judge was, on the whole, a better shot than any of his sons. In the

year 1883 the household was increased, a good deal to my father's

annoyance, by two policemen. At the Liverpool summer Assizes he had

tried a gang of dynamiters, I think for treason-felony. They, or

most of them, were convicted and sentenced to long terms of penal

servitude. Some of my father's friends, not understanding that if

anybody wanted to murder him it was quite as likely to be done, and

quite as easy to do, in England as in Ireland, and perhaps

entertaining the fantastic idea that the population of Louth had

more regard for dynamiters than the population of London, suggested

to the Irish Government that he was in some danger. The only thing

that could be done was to order police protection, and this Sir

George Trevelyan did. Accordingly two constables took up their

abode in a room which happened to be available in the stable-yard,

and mounted guard all day over the hall-door, following my father

wherever he went during the day. Though their continued escort

troubled him a good deal, there was no escape from it, and he got

used to it to some extent. He made great friends with the men

personally--like other people, he had the highest admiration for

the force to which they belonged--and sometimes challenged them to

a shooting match, either with their own rifles or with his, and was

much gratified when he got the better of them.

With the people generally he became after a time extremely popular.

I say after a time, because the inhabitants of that country do not,

any more than country people in most parts of England, take

strongly to strangers before they know anything about them. They

never showed the least disposition to incivility, but for the first

year or two my father had not many acquaintances among them. Later

he came to be well known, and when he was taking his walks in the

fields or on the mountains, there was hardly a man for a good many

miles round who did not hail him by name. I have known them shout

across two fields, 'It's a fine evening, Sir James'; and when they

did so he invariably stopped and entered into conversation about

the crops and the weather, or other topics of universal interest.

With some of them whom he had frequently met while walking, or whom

he had helped with advice or small loans (about the repayment of

which they were, to his great delight, singularly honest), he was

on particularly friendly terms, and made a point of visiting them

in their houses at least once every year. They have remarkably good

manners, and attracted him particularly by their freedom from

awkwardness, and their combination of perfect politeness with

complete self-respect. I have reason to know that they have not

forgotten him.

He once made a short expedition with one of my sisters to Achill,

Clifden, and Galway. They stayed two nights at Achill, which

sufficed for him to make friends with Mr. Sheridan, the landlord of

the inn there. They never met again, but there were communications

between them afterwards which showed that my father retained as

long as he lived a kindly recollection of the people he had met in

that particular holiday.

It was naturally during the summer holidays, and when one of us

used to go circuit as his marshal, that my brothers and I saw most

of him. I think that during the years of his judgeship I came to

know all his opinions, and share most of them. One result of his

strong memory, and the immense quantity of talking and reading that

he had done in his life, was that he was never at a loss for

conversation. But to attempt to give an idea of what his intimate

talk was like when he conversed at his ease about all manner of men

and things is not my business. It was, of course, impossible to

live in the house with him without being impressed by his

extraordinary industry. The mere bulk of the literary work he did

at Anaverna would make it a surprising product of fifteen long

vacations, and there was not a page of it which had not involved an

amount of arduous labour which most men would regard as the

antithesis of holiday-making. This, however, as the present

biography will have shown, was his normal habit, and these notes

are designed to indicate that it did not prevent him from enjoying,

when away from books and pens and ink, a happy and vigorous life.

FOOTNOTES:

[Footnote 119: The first volume of his _Civilization in Europe_ appeared

in 1857.]

[Footnote 120: Mill elaborately argues that the social sciences are

possible precisely because the properties of the society are simply the

sum of the properties of the individuals of which it is composed. His

view of the importance of this theory is given in his _Autobiography_

(first edition), p. 260. And see especially his _Logic_, Bk. vi. chap.

vii.]

[Footnote 121: _Liberty, Equality, Fraternity_, p. 212. (My references

are to the second edition.)]

[Footnote 122: P. 17.]

[Footnote 123: P. 10. This is almost literally from Bentham, who gives

several similar classifications of 'sanctions.']

[Footnote 124: P. 19.]

[Footnote 125: P. 183.]

[Footnote 126: P. 184.]

[Footnote 127: Pp. 32, 112.]

[Footnote 128: P. 244.]

[Footnote 129: Pp. 193, 195.]

[Footnote 130: P. 30.]

[Footnote 131: P. 239.]

[Footnote 132: P. 184.]

[Footnote 133: P. 96.]

[Footnote 134: P. 140.]

[Footnote 135: P. 139.]

[Footnote 136: P. 162.]

[Footnote 137: P. 177.]

[Footnote 138: P. 169.]

[Footnote 139: P. 58.]

[Footnote 140: P. 82.]

[Footnote 141: P. 84. The quotation is not quite accurate.]

[Footnote 142: Pp. 105-107.]

[Footnote 143: P. 109.]

[Footnote 144: P. 92. In the first edition the 'ignorant preacher' was a

'wretched little curate.' A rougher but more graphic phrase.]

[Footnote 145: There is here a discussion as to the relations between

'justice' and 'utility' upon which Fitzjames agreed with Mill. I dissent

from both, and think that Fitzjames would have been more consistent had

he agreed with me. I cannot, however, here try to unravel a rather

knotty point.]

[Footnote 146: P. 232.]

[Footnote 147: P. 334.]

[Footnote 148: P. 125.]

[Footnote 149: P. 69.]

[Footnote 150: P. 370.]

[Footnote 151: P. 294.]

[Footnote 152: P. 300.]

[Footnote 153: P. 288.]

[Footnote 154: P. 300.]

[Footnote 155: I repeat that I do not ask whether his interpretation be

correct.]

[Footnote 156: Pp. 49-60.]

[Footnote 157: P. 302.]

[Footnote 158: P. 287.]

[Footnote 159: P. 132.]

[Footnote 160: P. 75.]

[Footnote 161: P. 295.]

[Footnote 162: P. 343.]

[Footnote 163: P. 354.]

[Footnote 164: Bain's _J. S. Mill_, p. 111.]

[Footnote 165: _Digest of Law of Evidence_, preface.]

[Footnote 166: I have to thank Mr. A. H. Millar, of Dundee, for some

papers and recollections referring to this election.]

[Footnote 167: They were substantially republished in the _Contemporary

Review_ for December 1873 and January 1874.]

[Footnote 168: See prefaces to _History of the Criminal Law_ and to the

_Digest of the Criminal Law_.]

[Footnote 169: The introduction is dated April 1877.]

[Footnote 170: Preface to _History of Criminal Law_.]

[Footnote 171: 'Jenkins _v._ Cook,' _Law Reports_, Probate Division, i.

80-107.]

[Footnote 172: 'Clifton v. Ridsdale,' _Law Reports_, Probate Division,

i. 316-367; and ii. 276-353.]

[Footnote 173: 'Hughes v. Edwards,' _Law Reports_, Probate Division, ii.

361-371.]

[Footnote 174: B. November 8, 1831. d. November 24, 1891.]

[Footnote 175: Some account of the reports of these Commissions is given

in the _History of Criminal Law_, ii. 45-58, 65-72. The Fugitive Slave

Commission was appointed in consequence of a case in which the commander

of an English ship in a Mohammedan port was summoned to give up a slave

who had gone on board. A paper laid before the Committee by Fitzjames is

reprinted in the first passage cited. He thinks that international law

prescribes the surrender of the slave; and that we should not try to

evade this 'revolting' consequence by a fiction as to the

'exterritoriality' of a ship of war, which might lead to unforeseen and

awkward results. We ought to admit that we are deliberately breaking the

law, because we hold it to be unjust and desire its amendment. He signs

the report of the Commission understanding that it sanctions this view.]