CHAPTER VI

_JUDICIAL CAREER_

I. HISTORY OF CRIMINAL LAW

The Commission upon the Criminal Code occupied Fitzjames for some time

after his appointment to a judgeship. His first appearance in his new

capacity was in April 1879 at the Central Criminal Court, where he had

held his first brief, and had made his first appearance after returning

from India. He had to pass sentence of death upon an atrocious scoundrel

convicted of matricide. A few months later he describes what was then a

judge's business in chambers. It consists principally, he says, in

making a number of small orders, especially in regard to debtors against

whom judgment has been given. 'It is rather dismal, and shows one a

great deal of the very seamy side of life.... You cannot imagine how

small are the matters often dealt with, nor how important they often are

to the parties. In this dingy little room, and under the most

undignified circumstances, I have continually to make orders which

affect all manner of interests, and which it is very hard to set right

if I go wrong. It is the very oddest side of one's business. I am not

quite sure whether I like it or not. At any rate it is the very

antithesis of "pomp and 'umbug."'

[Illustration: _From a Photograph by Bassano, 1886_

London. Published by Smith Elder & Co 15. Waterloo Place.]

The last phrase alludes to a conversation overheard at the assizes

between two workmen. One of them described the judge, the late Lord

Chief Justice Cockburn, as a 'cheery swine' who, as he affirmed, had

gone to church and preached a sermon an hour and a half long. The

sheriff, too, was there in a red coat, and had no doubt got his place by

interest. 'Pomp and 'umbug I calls it, and we poor chaps pays for it

all.' Fitzjames heartily enjoyed good vernacular embodiments of popular

imagination. He admitted that he was not quite insensible to the

pleasures of pomp and humbug as represented by javelin men and

trumpeters. His work, as my quotation indicates, included some duties

that were trivial and some that were repulsive. In spite of all,

however, he thoroughly enjoyed his position. He felt that he was

discharging an important function, and was conscious of discharging it

efficiently. There are few greater pleasures, certainly few were greater

to him, than the exercise of a craft which one has so mastered as to

have lost all the embarrassment of a beginner. He felt that he was not

only up to his duties but had superfluous energy to direct elsewhere.

The pleasantest hours of the day were those before and after business

hours, when he could devote himself to his literary plans.

In some of his letters to Lord Lytton about the time of his appointment,

I find unusual confessions of weariness. He admits that there is a

difference between forty and fifty; and thinks he has not quite the old

elasticity. I believe, however, that this refers to the worry caused by

his work on the Commission, and the daily wrangle over the precise

wording of the code, while the judgeship was not yet a certainty. At any

rate there is no more mention of such feelings after a time; and in the

course of the summer he was once more taking up an important literary

scheme which would have tasked the energies of the youngest and

strongest. He seems to have contemplated for a time a series of books

which should cover almost the whole field of English law and be a modern

substitute for Blackstone. The only part of this actually executed--but

that part was no trifle--was another book upon the English Criminal Law.

It was, in truth, as he ventured to say, 'a remarkable achievement for a

busy man to have written at spare moments.' We must, of course, take

into account his long previous familiarity with the law. The germ of the

book is to be found in the Essay of 1857; and in one way or other, as a

writer, a barrister, a codifier, and a judge, he had ever since had the

subject in his mind. It involved, however, along with much that was

merely recapitulation of familiar topics, a great amount of laborious

investigation of new materials. He mentions towards the end of the time

that he has been working at it for eight hours a day during his holiday

in Ireland. The whole was finished in the autumn of 1882, and it was

published in the following spring.

Fitzjames explains in his preface how the book had come to be written.

He had, as I have said, laid aside the new edition of the original

'View' in order to compile the 'Digest,' which he had felt to be its

necessary complement. I may add that he also wrote with the help of his

eldest son--now Sir Herbert Stephen--a 'Digest of the Law of Criminal

Procedure,' which was published contemporaneously with the 'History.'

The 'Digest' had led to the code and to the Commission. When the

Commission was over, he returned to the proposed new edition of the

'View.' But Fitzjames seems to have had an odd incapacity for producing

a new edition. We, who call ourselves authors by profession, are

sometimes tempted, and we do not always resist the temptation, to

describe a book as 'revised and corrected' when, in point of fact, we

have added a note or two and struck out half a dozen obvious misprints.

When Fitzjames said that his earlier treatise might be described as 'in

some sense a first edition' of the later, he meant that he had written

an entirely new book upon a different aspect of the old subject. The

'View' is in one volume of about 500 pages, nearly a third of which (153

pages) consists of reports of typical French and English trials. These

are reprinted in the 'History.' Of the remainder, over 100 pages are

devoted to the Law of Evidence, which is not discussed in the 'History.'

Consequently the first 233 pages of the 'View' correspond to the whole

of the three volumes of the 'History,' which, omitting the reported

trials given in both books, contain 4,440 pages. That is, the book has

swelled to six times the original size, and I do not think that a single

sentence of the original remains. With what propriety this can be called

a 'new edition' I will not try to decide.

The cause of this complete transformation of the book is significant.

Fitzjames, in his preface, observes that much has been said of the

'historical method' of late years. It has, he agrees, 'thrown great

light upon the laws and institutions of remote antiquity.' Less,

however, has been done for modern times; although what is called

'constitutional history' has been 'investigated with admirable skill and

profound learning.' As I have noticed, his original adherence to the

theories of Bentham and Austin had tended to make him comparatively

indifferent to the principles accepted and illustrated by the writings

of Maine. He had looked at first with some doubts upon those

performances and the brilliant generalisations of 'Ancient Law' and its

successors. He quotes somewhere a phrase of his friend Bowen, who had

said that he read Maine's works with the profoundest admiration for the

genius of the author, but with just a faint suspicion somewhere in the

background of his mind that the results might turn out to be all

nonsense. Fitzjames had at any rate no prepossessions in favour of the

method, and may be said to have been recruited, almost in spite of

himself, by the historical school. But it was impossible for anyone to

discuss the peculiarities of English Criminal Law without also being

plunged into historical investigations. At every point the system is

determined by the circumstances of its growth; and you can no more

account for its oddities or its merits without considering its history

than you can explain the structure of a bat or a seal without going back

to previous forms of life. The growth of the criminal law, as Fitzjames

remarks, is closely connected with the development of the moral

sentiments of the community: with all the great political and social

revolutions and with the changes of the ecclesiastical constitution and

the religious beliefs of the nation. He was accordingly drawn into

writing a history which may be regarded as complementary to the great

constitutional histories of Hallam and Dr. Stubbs. He takes for granted

many of their results, and frankly acknowledges all his obligations. But

he had also to go through many investigations of his own special topics,

and produced a history which, if I am not mistaken, is of the highest

interest as bringing out certain correlative processes in the legal

development of our institutions, which constitutional historians

naturally left in the background.

His early work upon the similar book suggested by his father had made

him more or less familiar with some of the original sources. He now had

to plunge into various legal antiquities, and to study, for example, the

six folio volumes called _Rotuli Parliamentorum_; to delve in year-books

and old reports and the crabbed treatises of ancient lawyers, and to

consider the precise meaning and effect of perplexed and obsolete

statutes. He was not an antiquary by nature, for an antiquary, I take

it, is one who loves antiquity for its own sake, and enjoys a minute

inquiry almost in proportion to its minuteness. Fitzjames's instinct,

on the contrary, was to care for things old or new only so far as they

had some distinct bearing upon living problems of importance. I could

not venture to pronounce upon the value of his researches; but I am

happily able to give the opinion of Professor Maitland, who can speak as

one having authority. 'About the excellence of your brother's History of

English Criminal Law,' he writes to me, 'there can, I suppose, be but

one opinion among those who are competent to speak of such a matter. But

I think that he is scarcely likely to get all the credit that is due to

him for certain parts of the work which are especially interesting to

me, and which I have often read--I mean those parts which deal with the

middle ages. They seem to me full of work which is both good and new. I

take it that he had no great love for the middle ages, and wrote the

chapters of which I am speaking as a disagreeable task. I do not think

that he had from nature any great power of transferring himself or his

readers into a remote age, or of thinking the thoughts of a time very

different from that in which he lived: and yet I am struck every time I

take up the book with the thoroughness of his work, and the soundness of

his judgments. I would not say the same of some of his predecessors,

great lawyers though they were, for in dealing with mediaeval affairs

they showed a wonderful credulity. To me it seems that he has often gone

right when they went wrong, and that his estimate of historical evidence

was very much sounder than theirs. The amount of uncongenial, if not

repulsive labour that he must have performed when he was studying the

old law-books is marvellous. He read many things that had not been used,

at all events in an intelligent way, for a very long time past; and--so

I think, but it is impertinent in me to say it--he almost always got

hold of the true story.'

To write three thick volumes involving such inquiries within three years

and a half; and to do the work so well as to deserve this praise from an

accomplished legal antiquary, was by itself an achievement which would

have contented the ambition of an average author. But when it is

remembered that the time devoted to it filled only the interstices of an

occupation which satisfies most appetites for work, and in which he

laboured with conscientious industry, I think that the performance may

deserve Professor Maitland's epithet, 'marvellous.' He was greatly

interested in the success of the book, though his experience had not led

him to anticipate wide popularity. It was well received by competent

judges, but a book upon such a topic, even though not strictly a

'law-book,' can hardly be successful in the circulating-library sense of

the word. Fitzjames, indeed, had done his best to make his work

intelligible to the educated outsider. He avoided as much as possible

all the technicalities which make the ordinary law-book a hopeless

bewilderment to the lay reader, and which he regarded on all grounds

with natural antipathy. The book can be read, as one outsider at least

can testify, with strong and continuous interest; though undoubtedly the

reader must be prepared to endure a little strain upon his attention.

There are, indeed, certain drawbacks. In spite of the abundant proofs of

industry and knowledge, there are indications that a little more

literary polish might have been advantageous. Some of the materials are

so crabbed that hardly any skill could have divested them of their

natural stiffness. As Professor Maitland's remarks indicate, Fitzjames

did not love the old period for its own sake. He liked, as I have

noticed, general histories, such as Gibbon's, which give a bird's-eye

view of long periods and, in a sense, codify a great mass of knowledge.

But he had not the imaginative power of reconstructing ancient states

of society with all their picturesque incidents which was first

exemplified by Scott. He was always interested in books that reveal

human nature, and says in the 'History,' for example, that some of the

State Trials are to him 'much more impressive than poetry or

fiction.'[176] But the incidents do not present themselves to him, as

they did to Scott or to Macaulay, as a series of vivid pictures with all

their material surroundings. He shrank, more advisedly, perhaps, from

another tendency which has given popularity to a different school.

Though he gradually became an admirer of Maine's generalisations,

founded upon cautious inquiries and recommended by extraordinary

literary skill, his own intellectual aptitudes did not prompt him to

become a rival. Briefly, his attitude of mind was in the strictest sense

judicial. He asks always for distinct proofs and definite issues. He

applies his canons of evidence to every statement that comes up, and,

after examining it as carefully as he can, pronounces his conclusions,

unequivocally but cautiously. He will not be tempted to a single step

beyond the solid ground of verifiable fact. This undoubtedly gives

confidence to the tolerably patient reader, who learns to respect the

sobriety and impartiality of his guide. But it also fails to convince

the hasty reader that he has seen the event precisely as it happened, or

that he is in possession of a philosophical key to open all historical

problems. I do not wish for a moment to underrate the value of work

which has different qualities; but I do think that Fitzjames's merits as

a solid inquirer may be overlooked by readers who judge a writer by the

brilliance of his pictures and the neatness of his theories.

The book covers a very large field. A brief indication of its general

plan will show how many topics are more or less treated. He begins with

a short account of the Roman Criminal Law; and then of English law

before the Conquest. He next takes up the history of all the criminal

courts, including the criminal jurisdiction of the extraordinary courts,

such as Parliament and the Privy Council. This is followed by a history

of the procedure adopted in the courts, tracing especially the

development of trial by jury. The second volume opens a discussion of

certain principles applicable to crime in general, such as the theory of

responsibility. Next follows a history of the law relating to crime in

general. He then takes up the history of the principal classes of crime,

considering in separate chapters offences against the state, treason,

sedition, and seditious libels; offences against religion, offences

against the person (this opens the third volume), especially homicide;

offences against property, such as theft and forgery; offences relating

to trade and labour and 'miscellaneous offences.' This finishes the

history of the law in England, but he adds an account of the extension

of the English criminal law to India; and this naturally leads to an

exposition of his views upon codification. The exposition is mainly a

reproduction of the report of the Commission of 1878-9, which was

chiefly his own composition. Finally, the old reports of trials, with a

few alterations, are appended by way of pointing the contrast between

the English and the French methods, upon which he has already introduced

some observations.

Mr. Justice Stephen's book, said Sir F. Pollock in a review of the day,

is 'the most extensive and arduous' undertaken by any English lawyer

since the days of Blackstone. So large a framework necessarily includes

many subjects interesting not only to the lawyer but to the antiquary,

the historian, and the moralist; and one effect of bringing them

together under a new point of view is to show how different branches of

inquiry reciprocally illustrate each other. The historian of the

previous generation was content to denounce Scroggs and Jeffreys, or to

lament the frequency of capital offences in the eighteenth century, and

his moral, especially if he was a Whig, was our superiority to our

great-grandfathers. There was plenty of room for virtuous indignation.

But less attention was generally paid to the really interesting

problems, how our ancestors came to adopt and to be content with these

institutions; what precisely the institutions were, and how they were

connected with other parts of the social framework. When an advance is

made towards the solution of such problems, and when we see how closely

they connect themselves with other problems, social, ecclesiastical, and

industrial, as well as political, we are making also a step towards an

intelligent appreciation of the real meaning of history. It is more than

a collection of anecdotes, or even, as Carlyle put it, than the essence

of a multitude of biographies; it becomes a study of the growth of an

organic structure; and although Fitzjames was reluctant, even to excess,

to put forward any claim to be a philosophical historian, a phrase too

often applied to a dealer in 'vague generalities,' I think that such

work as his was of great service in providing the data for the truly

philosophical historian who is always just on the eve of appearing.

I venture to touch upon one or two points with the purpose of suggesting

in how many ways the history becomes involved in topics interesting to

various classes of readers, from the antiquary to the student of the

development of thought. The history of trial by jury had, of course,

been already unravelled by previous historians. Fitzjames was able,

however, to produce quaint survivals of the old state of things, under

which a man's neighbours were assumed to be capable of deciding his

guilt or innocence from their own knowledge. There was the Gibbet Law of

Halifax, which lasted till the seventeenth century. The jurors might

catch a man 'handhabend, backbarend, or confessand,' with stolen goods

worth 13-1/2_d._ in his possession and cut off his head on a primitive

guillotine without troubling the judges. Even in 1880 there existed (and

I presume there still exists) a certain 'liberty of the Savoy,' under

the shadow of the new courts of justice, which can deal with keepers of

disorderly houses after the same fashion.[177] From this primitive

institution Fitzjames has to grope his way by scanty records to show

how, during the middle ages, the jury ceased to be also witnesses and

became judges of fact informed by witnesses. Emerging into the period of

the Tudors and the early Stuarts, he comes to trials full of historic

interest; to the dramatic scenes in which Sir Thomas More, and

Throckmorton, and Raleigh played their parts. He has to show how in a

period of overpowering excitement, when social organisation was far

weaker, and the power of the rulers more dependent upon personal vigour,

the Government dealt out sharp and short justice, though juries still

had to be cajoled or bullied; how the system was influenced by the

growth of the Star Chamber, with a mode of procedure conforming to a

different type; and how, when the tyranny of such courts had provoked

indignation, they were swept away and left to the jury its still

undisputed supremacy. From the time when honest John Lilburne wrangled

successfully against Cromwell's judges, it began to assume a special

sanctity in popular belief. Then we come to the Popish plots and the

brutalities of Scroggs and Jeffreys, when the jury played a leading

part, though often perverted by popular or judicial influence, and

without any sound theory of evidence. The revolution of 1688 swept away

the grosser abuses; the administration of justice became decorous and

humane; a spirit of fair play showed itself; the laws of evidence were

gradually worked out; and, instead of political tragedies, we have a

number of picturesque cases throwing the strangest gleams of light into

all manner of odd dark social corners. Within the last century, finally,

the mode of investigating crime has become singularly dignified,

impartial, and substantially just. A survey of this long history,

bringing out at every step picturesque incidents and curious

illustrations of social and political constitutions, lights up also the

real merits and defects of the existing system. Fitzjames, with much

fuller knowledge and longer experience, adheres substantially to his

previous opinion. He has not, of course, the old-fashioned worship for

the 'palladium of our liberties'; jurors could be 'blind and cruel'

under Charles II., and as severe as the severest judge under George III.

They are not more likely to do justice than a single judge. But the

supreme advantages of placing the judge in his proper position as

mediator and adviser, and of taking the public into confidence as to the

perfect impartiality of the proceedings, outweigh all objections.

Again we have the curious history of the 'benefit of clergy.' Before

1487, a man who could read and write might commit murder as often as he

pleased, subject to an indefinite chance of imprisonment by the

'ordinary.' At a later period, he could still murder at the cost of

having M branded on the brawn of his thumb. But women and men who had

married two wives or one widow did not enjoy this remarkable privilege.

The rule seems as queer and arbitrary as any of the customs which excite

our wonder among primitive tribes. The explanation, of course throws a

curious light upon the struggle between Church and State in the middle

ages; and in the other direction helps to explain the singularities of

criminal legislation in the eighteenth century. Our grandfathers seem to

have thought that felony and misdemeanour were as much natural classes

as mammal and marsupial, and that all that they could do was to remove

the benefit of clergy when the corresponding class of crime happened to

be specially annoying. They managed to work out the strange system of

brutality and laxity and technicality in which the impunity of a good

many criminals was set off against excessive severity to others.

The spiritual courts, again, give strange glimpses into the old

ecclesiastical system. The records show that from the time of the

Conquest to that of the Stuarts a system prevailed which was equivalent

to the Spanish Inquisition, except that it did not use torture. It

interfered with all manner of moral offences such as that of Eleanor

Dalok, a 'communis skandalizatrix,' who 'utinizavit' (supposed to be a

perfect of _utinam_) 'se fuisse in inferno quamdiu Deus erit in caelo, ut

potuisset uncis infernalibus vindicare se de quodam Johanne Gybbys

mortuo.' The wrath provoked by this and more vexatious interferences

makes intelligible the sweeping away of the whole system in 1640. With

this is connected the long history of religious persecution, from the

time when (1382) the clergy forged an act of Parliament to give the

bishops a freer hand with heretics. Strange fragments and shadows of

these old systems still remain; and according to Fitzjames it would

still in strict law be a penal offence to publish Renan's 'Life of

Christ.'[178] The attempt to explain the law as referring to the manner,

not the matter, of the attack is, he thinks, sophistical and the law

should be simply repealed. A parallel case is that of seditious libels;

and there is a very curious history connected with the process by which

we have got rid of the simple, old doctrine that all attacks upon our

rulers, reasonable or otherwise, were criminal.

These are some of many cases in which Fitzjames has to give a side of

history generally left in comparative obscurity. Upon some matters, as,

for example, upon the history of impeachments, he thought that he had

been able to correct or clear up previous statements. I have only wished

to show how many interesting topics come into his plan; and to me, I

confess, the most interesting of all is the illustration of the amazing

nature of the so-called intellectual process involved. People seem to

begin by making the most cumbrous and unreasonable hypotheses possible,

and slowly and reluctantly wriggling out of them under actual

compulsion. That is not peculiar to lawyers, and may have a meaning even

in philosophy.

Fitzjames's comments upon the actual state of the law brings him to many

important ethical problems. The discussion of the conditions of legal

responsibility is connected with that of moral responsibility. Fitzjames

once more insists upon the close connection between morality and law.

'The sentence of the law,' he says, 'is to the moral sentiment of the

public what a seal is to hot wax. It converts into a permanent final

judgment what might otherwise be a transient sentiment.' The criminal

law assumes that 'it is right to hate criminals.' He regards this hatred

as a 'healthy natural feeling'; for which he again quotes the authority

of Butler and Bentham. The legal mode of expressing resentment directs

it to proper applications in the same way as the law of marriage gives

the right direction to the passion of love. From his point of view, as I

have already indicated, this represents the necessary complement to the

purely utilitarian view, which would make deterrence the sole legitimate

end of punishment. The other, though generally consistent, end is the

gratification of the passion of moral indignation.[179]

Hence arise some difficult questions. Fitzjames insists, in agreement

with Bentham, and especially with James Mill, that the criminal law is

concerned with 'intentions,' not with 'motives.' All manner of

ambiguities result from neglecting this consideration. The question for

the lawyer is, did the prisoner mean to kill?--not, what were his

motives for killing? The motives may, in a sense, have been good; as,

for example, when a persecutor acts from a sincere desire to save souls.

But the motive makes no difference to the sufferer. I am burnt equally,

whether I am burnt from the best of motives or the worst. A rebel is

equally mischievous whether he is at bottom a patriot or an enemy of

society. The legislator cannot excuse a man because he was rather

misguided than malignant. It is easy to claim good motives for many

classes of criminal conduct, and impossible to test the truth of the

excuse. We cannot judge motives with certainty. The court can be sure

that a man was killed; it can be sure that the killing was not

accidental; but it may be impossible to prove that the killer had not

really admirable motives.

But if so, what becomes of the morality? The morality of an act is of

course affected (if not determined) by the motive.[180] We can secure,

no doubt, a general correspondence. Crimes, in nine cases out of ten,

are also sins. But crimes clearly imply the most varying degrees of

immorality: we may loathe the killer as utterly vile, or be half

inclined very much to applaud what he has done. The difficulty is

properly met, according to Fitzjames, by leaving a wide discretion in

the hands of the judge. The jury says the law has been broken; the judge

must consider the more delicate question of the degree of turpitude

implied. Yet in some cases, such as that of a patriotic rebel, it is

impossible to take this view. It is desirable that a man who attacks the

Government should attack it at the risk of his life. Law and morality,

therefore, cannot be brought into perfect coincidence, although the

moral influence of law is of primary importance, and in the normal state

of things no conflict occurs.

There are certain cases in which the difficulty presents itself

conspicuously. The most interesting, perhaps, is the case of insanity,

which Fitzjames treats in one of the most elaborate chapters of his

book. It replaces a comparatively brief and crude discussion in the

'View,' and is conspicuously candid as well as lucid. He read a great

many medical treatises upon the subject, and accepts many arguments from

an opponent who had denounced English judges and lawyers with irritating

bitterness. There is no difficulty when the madman is under an illusion.

Our ancestors seem to have called nobody mad so long as he did not

suppose himself to be made of glass or to be the Devil. But madness has

come to include far more delicate cases. The old lawyers were content to

ask whether a prisoner knew what he was doing and whether it was wrong.

But we have learnt that a man may be perfectly well aware that he is

committing a murder, and know murders to be forbidden in the Ten

Commandments, and yet unable to refrain from murder. He has, say the

doctors, homicidal monomania, and it is monstrous to call in the hangman

when you ought to be sending for the doctor. The lawyer naturally

objects to the introduction of this uncertain element, which may be

easily turned to account by 'experts' capable of finding symptoms of

all kinds of monomania. Fitzjames, however, after an elaborate

discussion, decides that the law ought to take account of mental disease

which operates by destroying the power of self-control. The jury, he

thinks, should be allowed to say either 'guilty,' or 'not guilty on the

ground of insanity,' or 'guilty, but his power of self-control was

diminished by insanity.'[181] I need not go into further detail, into a

question which seems to be curiously irritating to both sides. I am

content to observe that in the earlier book Fitzjames had been content

with the existing law, and that the change of opinion shows very careful

and candid consideration of the question, and, as I think, an advance to

more moderate and satisfactory conclusions.

The moral view of the question comes out in other relations. He

intimates now and then his dissatisfaction with the modern

sentimentalism, his belief in the value of capital and other corporal

punishments, and his doubt whether the toleration of which he has traced

the growth can represent more than a temporary compromise. But these

represent mere _obiter dicta_ which, as he admits, are contrary to

popular modes of thought. He is at least equally anxious to secure fair

play for the accused. He dwells, for example, upon the hardships

inflicted upon prisoners by the English system of abstinence from

interrogation. The French plan, indeed, leads to cruelty, and our own

has the incidental advantage of stimulating to the search of independent

evidence. 'It is much pleasanter,' as an Indian official remarked to him

by way of explaining the practice of extorting confessions in India, 'to

sit comfortably in the shade rubbing red pepper into a poor devil's eyes

than to go about in the sun hunting up evidence.'[182] Fitzjames,

however, frequently remarked that poor and ignorant prisoners,

unaccustomed to collect their ideas or to understand the bearing of

evidence, are placed at a great disadvantage by never having stated

their own cases. The proceedings must pass before them 'like a dream

which they cannot grasp,' and their counsel, if they have counsel, can

only guess at the most obvious line of defence. He gives instances of

injustice inflicted in such cases, and suggests that the prisoners

should be made competent witnesses before both the magistrates and the

judge. This would often enable an innocent man to clear up the case; and

would avoid the evils due to the French system.[183]

Without going further into this or other practical suggestions, I will

quote his characteristic conclusion. The Criminal Law, he says, may be

regarded as an expression of the second table of the Ten Commandments.

It follows step by step the exposition of our duty to our neighbours in

the Catechism. There was never more urgent necessity for preaching such

a sermon than there is at present. There was never so much doubt as to

other sanctions. The religious sanction, in particular, has been

'immensely weakened, and people seem to believe that if they do not

happen to like morality, there is no reason why they should be moral.'

It is, then, 'specially necessary to those who do care for morality to

make its one unquestionable indisputable sanction as clear and strong

and emphatic as acts and words can make it. A man may disbelieve in God,

heaven, and hell; he may care little for mankind, or society, or for the

nation to which he belongs--let him at least be plainly told what are

the acts which will stamp him with infamy, hold him up to public

execration and bring him to the gallows, the gaol, or the lash.'[184]

That vigorous summary shows the connection between the 'Liberty,

Equality, Fraternity,' the various codifying enterprises, and his

writings upon theology and ethics. The remarkable point, if I am not

mistaken, is that in spite of the strong feeling indicated by the

passage just quoted, the tone of the book is throughout that of sound

common sense, impartiality, and love of fair play. It is characteristic

that in spite of his prejudice against the commonplaces about progress,

he does, in fact, show that the history of criminal law is in many most

important respects the history of a steady advance in humanity and

justice. Nor, in spite of a reservation or two against 'sentimentalism,'

does he fail to show hearty sympathy with the process of improvement.

II. 'NUNCOMAR AND IMPEY'

In the summer (1883) which followed the publication of the 'History,' it

began to appear that Fitzjames's health was not quite so vigorous as it

had hitherto been. He could not throw off the effects of a trifling

accident in June so rapidly as of old; and in the last months of the

year his condition caused for a time some anxiety to his wife.

Considered by the light of what afterwards happened, these symptoms

probably showed that his unremitting labours had inflicted a real though

as yet not a severe injury upon his constitution. For the present,

however, it was natural to suppose that he was suffering from nothing

more than a temporary exhaustion, due, perhaps, to the prolonged wrestle

with his great book. Rest, it was believed, would fully restore him. He

was, indeed, already at work again upon what turned out to be his last

considerable literary undertaking. The old project for a series of

law-books probably seemed rather appalling to a man just emerging from

his recent labours; and those labours had suggested another point to

him. The close connection between our political history and our criminal

law had shown that a lawyer's technical knowledge might be useful in

historical research. He resolved, therefore, to study some of the great

trials 'with a lawyer's eye'; and to give accounts of them which might

exhibit the importance of this application of special knowledge.[185] He

soon fixed upon the impeachment of Warren Hastings. This not only

possessed great legal and historical interest, but was especially

connected with his favourite topics. It would enable him to utter some

of his thoughts about India, and to discuss some very interesting points

as to the application of morality to politics. He found that the

materials were voluminous and intricate. Many blue books had been filled

by the labours of parliamentary committees upon India; several folio

volumes were filled with reports of the impeachment of Hastings, and

with official papers connected with the same proceeding. A mass of other

materials, including a collection of Sir Elijah Impey's papers in the

British Museum, soon presented themselves. Finally, Fitzjames resolved

to make an experiment by writing a monograph upon 'Impey's Trial of

Nuncomar,' which is an episode in the great Warren Hastings story,

compressible within moderate limits. Impey, as Fitzjames remarks

incidentally, had certain claims both upon him and upon Macaulay; for he

had been a Fellow of Trinity and had made the first attempt at a code in

India. If this first book succeeded Fitzjames would take up the larger

subject. In the event he never proceeded beyond the preliminary stage.

His 'Story of Nuncomar and the Impeachment of Sir Elijah Impey,'

published in the spring of 1885, gives the result.

Fitzjames had been familiar from his boyhood with the famous article

upon Warren Hastings, in which Macaulay reached the very culminating

point of his surpassing literary skill. It is a skill which, whatever

else may be said of it, makes his opponents despair. They may disprove

his statements; they can hardly hope to displace his versions of fact

from their hold upon popular belief. One secret of Macaulay's art is

suggested by the account of his delight in 'castle-building.' His vast

reading and his portentous memory enabled him to create whole galleries

of mental pictures of the past, and his vigorous style embodies his

visions with admirable precision and sharpness of outline. But, as those

who have followed him in detail became painfully aware, there is more

than one deduction to be made from his merits. His imagination

undoubtedly worked upon a great mass of knowledge; but the very nature

of the imaginative process was to weave all the materials into a

picture, and therefore to fill up gaps by conjecture. He often

unconsciously makes fancy do the work of logic. 'The real history' (of

the famous quarrel between Addison and Steele), says Macaulay, 'we have

little doubt, was something like this': and he proceeds to tell a story

in minute detail as vividly as if he had been an eye-witness. To him,

the clearness of the picture was a sufficient guarantee of its

truthfulness. It was only another step to omit the 'doubt' and say

simply 'The real history was.' Yet all the time the real history

according to the best evidence was entirely different. We can never be

certain whether one of Macaulay's brilliant pictures is--as it sometimes

certainly is--a fair representation of a vast quantity of evidence or an

audacious inference from a few hints and indications. It represents, in

either case, the effect upon his mind; but the effect, if lively enough,

is taken to prove itself. He will not condescend to the prosaic

consideration of evidence, or to inserting the necessary 'ifs' and

'perhapses' which disturb so painfully the impression of a vivid

narrative. When his strong party feelings have coloured his beliefs from

the first, his beliefs acquire an intensity which enables them not only

to dispense with but to override evidence.

I insist upon this because Fitzjames's mental excellencies and defects

exactly invert Macaulay's. His imagination did not clothe the evidence

with brilliant colours; and, on the other hand, did not convert

conjectures into irresistible illusions. The book upon 'Nuncomar and

Impey' shows the sound judgment of evidence in regard to a particular

fact which Professor Maitland perceives in his treatment of mediaeval

affairs. It is an exhaustive, passionless, and shrewd inquiry into the

facts. He speaks in one of his letters of the pleasure which he has

discovered in treating a bit of history 'microscopically'; in getting at

the ultimate facts instead of trusting to the superficial summaries of

historians. In brief, he is applying to an historical question the

methods learnt in the practice of the courts of law. The book is both in

form and substance the careful summing up of a judge in a complicated

criminal case. The disadvantage, from a literary point of view, is

obvious. If we were profoundly interested in a trial for murder, we

should also follow with profound interest the summing up of a

clear-headed businesslike judge. But, if we did not care two straws

whether the man were guilty or innocent, we might find the summing up

too long for our patience. That, I fear, may be true in this case.

Macaulay's great triumph was to create an interest in matters which, in

other hands, were repulsively dry. Fitzjames could not create such an

interest; though his account may be deeply interesting to those who are

interested antecedently. He observes himself that his 'book will be read

by hardly anyone, while Macaulay's paragraph will be read with delighted

conviction by several generations.' So long as he is remembered at all,

poor Impey will stand in a posthumous pillory as a corrupt judge and a

judicial murderer.[186] One reason is, no doubt, that the effect of a

pungent paragraph is seldom obliterated by a painstaking exposure of its

errors requiring many pages of careful and guarded reasoning. Macaulay's

narrative could be superseded in popular esteem only by a writer who

should condense a more correct but equally dogmatic statement into

language as terse and vivid as his own. Yet Fitzjames's book must be

studied by all conscientious historians in future, and will help, it is

to be hoped, to spread a knowledge of the fact that Macaulay was not

possessed of plenary inspiration.

It will be enough to give one instance of Macaulay's audacity. 'Every

schoolboy of fourteen' knows by heart his vivid account of the reign of

terror produced by Impey's exercise of the powers of the supreme court,

and of the bribe by which Hastings bought him off. A powerful and gloomy

picture is drawn in two or three expressive paragraphs. The objection to

the story, says Fitzjames, 'is that it is absolutely false from end to

end, and in almost every particular.'[187] Fitzjames proceeds not only

to assert the absence of evidence, but to show what was the supposed

evidence out of which Macaulay's imagination conjured this vision of

horror. Fitzjames remarks in a letter that his investigations had given

him a very low opinion of the way in which history was written, and

certainly, if

Macaulay's statement was a fair specimen, the estimate could hardly be

too low.

I may admit that, to my mind, the purely judicial method followed by

Fitzjames has its disadvantages. It tends to the exclusion of

considerations which, though rightly excluded from a criminal inquiry,

cannot be neglected by an historian. A jury would be properly directed

to acquit Hastings upon the charge of having instigated the prosecution

of Nuncomar. Yet, after all, it is very hard to resist the impression

that he must have had some share, more or less direct, in producing an

event which occurred just at the right moment and had such fortunate

results for him. It would be very wrong to hang a man upon such

presumptions; but it is impossible to deny that they have a logical

bearing upon the facts. However this may be, I think it is undeniable

that Fitzjames did good service to history in showing once for all the

ruthlessness and extravagance of Macaulay's audacious rhetoric. It is

characteristic that while making mincemeat of Macaulay's most famous

essay, Fitzjames cannot get rid of his tenderness for the great 'Tom' of

his boyish days. Besides praising the literary skill, which indeed, is

part of his case, he parts from his opponent with the warm eulogy which

I have previously noticed. He regards Macaulay as deluded by James Mill

and by the accepted Whig tradition. He condemns Mill, whose dryness and

severity have gained him an undeserved reputation for impartiality and

accuracy; he speaks--certainly not too strongly--of the malignity of

Francis; and he is, I think, a little hard upon Burke, Sheridan, and

Elliot, who were misled by really generous feelings (as he fully admits)

into the sentimental rhetoric by which he was always irritated. He

treats them as he would have put down a barrister trying to introduce

totally irrelevant eloquence. Macaulay escapes more easily. Fitzjames

felt that the essay when first published was merely intended as a

summary of the accepted version, making no pretensions to special

research. The morality of this judgment is questionable. Burke,

believing sincerely that Hastings was a wicked and corrupt tyrant,

inferred logically that he should be punished. Macaulay, accepting

Burke's view of the facts, calmly asserts that Hastings was a great

criminal, and yet with equal confidence invites his readers to worship

the man whose crimes were useful to the British empire. Fitzjames

disbelieved in the crimes, and could therefore admire Hastings without

reserve as the greatest man of the century. His sympathy with Macaulay's

patriotism made him, I think, a little blind to the lax morality with

which it was in this case associated. There is yet another point upon

which I think that Macaulay deserves a severer sentence. 'It is to be

regretted,' says Fitzjames, 'that Macaulay should never have noticed the

reply made to the essay by Impey's son.'[188] Unluckily this is not a

solitary instance. Macaulay, trusting to his immense popularity, took no

notice of replies which were too dull or too complicated to interest the

public. Fitzjames would himself have been utterly incapable of behaviour

for which it is difficult to discover an appropriate epithet, but which

certainly is inconsistent with a sincere and generous love of fair play.

If he did not condemn Macaulay more severely, I attribute it to the

difficulty which he always felt in believing anything against a friend

or one associated with his fondest memories. Had I written the book

myself, I should have felt bound to say something unpleasant: but I am

hardly sorry that Fitzjames tempered his justice with a little excess of

mercy.

The scheme of continuing this book by an account of Warren Hastings was

not at once dropped, but its impracticability became obvious before many

months had passed. Fitzjames was conducting the Derby assizes in April

1885, when he had a very serious attack of illness. His wife was

fortunately with him, and, after consulting a doctor on the spot, he

returned to London, where he consulted Sir Andrew Clark. A passage from

a letter to Lady Egerton explains his view of what had happened. 'I

suppose,' he says (April 29, 1885), 'that Mary has told you the dreadful

tale of my getting up in the morning and finding that my right hand had

either forgot its cunning or had turned so lazy that I could not write

with it, and how I sent for a Derby doctor, and how he ordered me up to

London, and how Clark condemned me to three months' idleness and prison

diet--I must admit, of a sufficiently liberal kind. Fuller sees the

sentence carried out in detail. I have had about three days' experience

of it, and I must own that I already feel decidedly better. I think that

after the long vacation I shall be thoroughly well again. In the

meantime, I feel heartily ashamed of myself. I always did consider any

kind of illness or weakness highly immoral, but one must not expect to

be either better or stronger than one's neighbours; and I suppose there

is some degree of truth in what so many people say on Sundays about

their being miserable sinners.' He adds that he is having an exceedingly

pleasant time, which would be still more pleasant if he could write with

his own hand (the letter is dictated). He has 'whole libraries of books'

into which he earnestly desires to look. He feels like a man who has

exchanged dusty boots for comfortable slippers; he is reading Spanish

'with enthusiasm'; longing to learn Italian, to improve his German, and

even to read up his classics. He compares himself to a traveller in

Siberia who, according to one of his favourite anecdotes, loved

raspberries and found himself in a desert entirely covered with his

favourite fruit.

He took the blow gallantly; perhaps rather too lightly. He was, of

course, alarmed at first by the symptoms described. Clark ultimately

decided that, while the loss of power showed the presence of certain

morbid conditions, a careful system of diet might keep at bay for an

indefinite time the danger of the development of a fatal disease.

Fitzjames submitted to the medical directions with perhaps a little

grumbling. He was not, like his father, an ascetic in matters of food.

He had the hearty appetite natural to his vigorous constitution. He was

quite as indifferent as his father to what, in the old phrase, used to

be called 'the pleasures of the table.' He cared absolutely nothing for

the refinements of cookery, and any two vintages were as

indistinguishable to him as two tunes--that is, practically identical.

He cared only for simple food, and I used, in old days, to argue with

him that a contempt for delicacies was as fastidious as a contempt for

plain beef and mutton. However that may be, he liked the simplest fare,

but he liked plenty of it. To be restricted in that matter was,

therefore, a real hardship. He submitted, however, and his health

improved decidedly for the time. Perhaps he dismissed too completely the

thought of the danger by which he was afterwards threatened. But, in

spite of the improvement, he had made a step downwards. He was allowed

to go on circuit again in the summer, after his three months' rest, and

soon felt himself quite equal to his work. But, from this time, he did

not add to his burthens by undertaking any serious labours of

supererogation.

III. JUDICIAL CHARACTERISTICS

I will here say what I can of his discharge of the judicial functions

which were henceforth almost his sole occupation. In the first place, he

enjoyed the work, and felt himself to be in the position most suitable

to his powers. Independent observers took, I believe, the same view. I

have reported the criticisms made upon his work at the bar, and have

tried to show what were the impediments to his success. In many respects

these impediments ceased to exist, and even became advantages, when he

was raised to the bench. The difficulty which he had felt in adapting

himself to other men's views, the contempt for fighting battles by any

means except fair arguments upon the substantial merits of the case,

were congenial, at least, to high judicial qualities. He despised

chicanery of all kinds, and formed independent opinions upon broad

grounds instead of being at the mercy of ingenious sophistry. He was

free from the foibles of petty vanity upon which a dexterous counsel

could play, and had the solid, downright force of mind and character

which gives weight to authority of all kinds. I need not labour to prove

that masculine common sense is a good judicial quality. Popular opinion,

however, is apt to misconstrue broad epithets and to confound vigour

with harshness. Fitzjames acquired, among careless observers, a certain

reputation for severity. I have not the slightest wish to conceal

whatever element of truth there might be in such a statement. But I must

begin by remarking a fact which, however obvious, must be explicitly

stated. If there was one thing hateful to Fitzjames, and sure to call

out his strongest indignation, it was oppression in any form. The

bullying from which he suffered at school had left, as I have said, a

permanent hatred for bullies. It had not encouraged him, as it

encourages the baser natures, to become a bully in his turn, but rather

to hate and trample down the evil thing wherever he met it. His

theories, as I have said, led him to give a prominent place (too

prominent, as I think) to what he called 'coercion.' Coercion in some

form was inevitable upon his view; but right coercion meant essentially

the suppression of arbitrary violence and the substitution for it of

force regulated by justice. Coercion, in the form of law, was identical

with the protection of the weak against the strong and the erection of

an impregnable barrier against the tyrannous misuse of power. This

doctrine exactly expressed his own character, for, as he was strong, he

was also one of the most magnanimous of men. He was incapable of being

overbearing in social intercourse. He had the fighting instinct to the

full. An encounter with a downright enemy was a delight to him. But the

joy of battle never deadened his instinct of fair play. He would speak

his mind, sometimes even with startling bluntness, but he never tried to

silence an opponent by dogmatism or bluster. The keenest argument,

therefore, could not betray him into the least discourtesy. He might

occasionally frighten a nervous antagonist into reticence and be too apt

to confound such reticence with cowardice. But he did not take advantage

of his opponent's weakness. He would only give him up as unsuited to

play the game in the proper temper. In short, he represented what is

surely the normal case of an alliance between manliness and a love of

fair play. It is the weaker and more feminine, or effeminate, nature

that is generally tempted to resort to an unfair use of weapons.

When, therefore, Fitzjames found himself in a position of authority, he

was keenly anxious to use his power fairly. He became decidedly more

popular on the bench than he had been at the bar. His desire to be

thoroughly fair could not be stronger; but it had a better opportunity

of displaying itself. The counsel who practised before him recognised

his essential desire to allow them the fullest hearing. He learnt to

'suffer fools' patiently, if not gladly. I apologise, of course, for

supposing that any barrister could be properly designated by such a

word; but even barristers can occasionally be bores. Some gentlemen, who

are certainly neither the one nor the other, have spoken warmly of his

behaviour. The late Mr. Montagu Williams, for example, tells with

pleasant gratitude how Fitzjames courteously came down from the bench to

sit beside him and so enabled him to spare a voice which had been

weakened by illness. His comment is that Fitzjames concealed 'the

gentleness of a woman' under a stern exterior. So Mr. Henry Dickens

tells me of an action for slander in which he was engaged when a young

barrister. Both slanderer and slandered were employed in Billingsgate.

The counsel for the defence naturally made a joke of sensibility to

strong language in that region. Mr. Dickens was in despair when he saw

that the judge and jury were being carried away by the humorous view of

the case. Knowing the facts, he tried to bring out the serious injury

which had been inflicted. Fitzjames followed him closely, became more

serious, and summed up in his favour. When a verdict had been returned

accordingly, he sent a note to this effect:--'Dear Dickens, I am very

grateful to you for preventing me from doing a great act of injustice.'

'He was,' says Mr. Dickens, 'one of the fairest-minded men I ever knew.'

His younger son has described to me the kindness with which he

encouraged a young barrister--the only one who happened to be

present--to undertake the defence of a prisoner, and helped him through

a difficult case which ended by an acquittal upon a point of law. 'I

only once,' says my nephew, 'heard him interrupt counsel defending a

prisoner,' except in correcting statements of fact. The solitary

exception was in a case when palpably improper matter was being

introduced.

In spite of his patience, he occasionally gave an impression of

irritability, for a simple reason. He was thoroughly determined to

suppress both unfairness and want of courtesy or disrespect to the

court. When a witness or a lawyer, as might sometimes happen, was

insolent, he could speak his mind very curtly and sharply. A powerful

voice and a countenance which could express stern resentment very

forcibly gave a weight to such rebukes, not likely to be forgotten by

the offender. He had one quaint fancy, which occasionally strengthened

this impression. Witnesses are often exhorted to 'watch his lordship's

pen' in order that they may not outrun his speed in taking notes. Now

Fitzjames was proud of his power of rapid writing (which, I may remark,

did not include a power of writing legibly). He was therefore nervously

irritable when a witness received the customary exhortation: 'If you

watch my pen,' he said to a witness, 'I will send you to prison': which,

as he then had to explain, was not meant seriously. It came to be

understood that, in his case, the formula was to be avoided on pain of

being considered wantonly offensive.

He rigidly suppressed, at any rate, anything which could lower the

dignity of the proceedings. He never indulged in any of those jokes to

which reporters append--sometimes rather to the reader's

bewilderment--the comment, 'loud laughter.' Nor would he stand any

improper exhibitions of feeling in the audience. When a spectator once

laughed at a piece of evidence which ought to have caused disgust, he

ordered the man to be placed by the side of the prisoner in the dock,

and kept him there till the end of the trial. He disliked the

promiscuous attendance of ladies at trials, and gave offence on one

occasion by speaking of some persons of that sex who were struggling for

admission as 'women.' He was, however, a jealous defender of the right

of the public to be present under proper conditions; and gave some

trouble during a trial of dynamiters, when the court-house had been

carefully guarded, by ordering the police to admit people as freely as

they could. His sense of humour occasionally made itself evident in

spite of his dislike to levity. He liked to perform variations upon the

famous sentence, 'God has, in his mercy, given you a strong pair of legs

and arms, instead of which you go about the country stealing ducks'; and

he would detail absurd or trifling stories with an excess of solemnity

which betrayed to the intelligent his perception of their comic side.

Fitzjames thought, and I believe correctly, that he was at his best when

trying prisoners, and was also perhaps conscious, with equal reason, I

believe, that no one could do it better. His long experience and

thorough knowledge of the law of crime and of evidence were great

qualifications. His force of character combined with his hatred of mere

technicalities, and his broad, vigorous common sense, enabled him to go

straight to the point and to keep a firm hand upon the whole management

of the case. No rambling or irrelevance was possible under him. His

strong physique, and the deep voice which, if not specially harmonious,

was audible to the last syllable in every corner of the court,

contributed greatly to his impressiveness. He took advantage of his

strength to carry out his own ideal of a criminal court as a school of

morality. 'It may be truly said,' as he remarks, 'that to hear in their

happiest moments the summing up of such judges as Lord Campbell, Lord

Chief Justice Erle, or Baron Parke, was like listening not only (to use

Hobbes's famous expression) to law living and armed, but to justice

itself.'[189] He tried successfully to follow in their steps.

Justice implies fair play to the accused. I have already noticed how

strongly he insists upon this in his writings. They show how deeply he

had been impressed in his early years at the bar by the piteous

spectacle of poor ignorant wretches, bewildered by an unfamiliar scene,

unable to collect their thoughts, or understand the nature of the

proceedings, and sometimes prevented by the very rules intended for

their protection from bringing out what might be a real defence. Many

stories have been told me of the extreme care with which he would try to

elicit the meaning of some muddled remonstrance from a bewildered

prisoner, and sometimes go very near to the verge of what is permitted

to a judge by giving hints which virtually amounted to questions, and so

helping prisoners to show that they were innocent or had circumstances

to allege in mitigation. He always spoke to them in a friendly tone, so

as to give them the necessary confidence. A low bully, for example, was

accused of combining with two women to rob a man. A conviction seemed

certain till the prisoners were asked for their defence; when one of

them made a confused and rambling statement. Fitzjames divined the

meaning, and after talking to them for twenty minutes, during which he

would not directly ask questions, succeeded in making it clear that the

prosecutor was lying, and obtained an acquittal. One other incident out

of many will be enough. A man accused of stabbing a policeman to avoid

arrest, pleaded guilty and was sentenced to seven years' penal

servitude. On being removed by the warders he clung to the rail,

screaming, 'You can't do it.

You don't know what you are doing!' Fitzjames shouted to the warders to

put him back; discovered by patient hearing that the man was meaning to

refer to some circumstance in extenuation, and after calling the

witnesses found that the statement was confirmed. 'Now, you silly

fellow,' he said, 'if you had pleaded "not guilty," as I told you, all

this would have come out. It is true that I did not know what I was

doing, but it was your own fault.' He then reduced the sentence to nine

months, saying, 'Does that satisfy you?' 'Thank you, my Lord,' replied

the man, 'that's quite right,' and left the court quite cheerfully.

Fitzjames was touched by the man's confidence in a judge, and by his

accurate knowledge of the proper legal tariff of punishment. Fitzjames

was scrupulously anxious in other ways not to wrest the law, even if

unsatisfactory in itself, out of dislike to the immediate offender. One

instance is given by the curious case of the Queen v. Ashwell (in 1885).

A man had borrowed a shilling from another, who gave him a sovereign by

mistake. The borrower discovered the mistake an hour afterwards, and

appropriated the sovereign. Morally, no doubt, he was as dishonest as a

thief. But the question arose whether he was in strict law guilty of

larceny. Fitzjames delivered an elaborate judgment to show that upon the

accepted precedents of law, he was not guilty, inasmuch as the original

act of taking was innocent.

Another aspect of justice, upon which Fitzjames dwells in his books, was

represented in his practice. A judge, according to him, is not simply a

logic machine working out intellectual problems, but is the organ of the

moral indignation of mankind. When, after a studiously fair inquiry, a

man had been proved to be a scoundrel, he became the proper object of

wrath and of the punishment by which such wrath is gratified. Fitzjames

undeniably hated brutality, and especially mean brutality; he thought

that gross cruelty to women and children should be suppressed by the

lash, or, if necessary, by the gallows. His sentences, I am told, were

not more severe than those of other judges: though mention is made of

one case in early days in which he was thought to be too hard upon a

ruffian who, on coming out of gaol, had robbed a little child of a

sixpence. But his mode of passing sentence showed that his hatred of

brutality included hatred of brutes. He did not affect to be reluctant

to do his duty. He did not explain that he was acting for the real good

of the prisoner, or apologise for being himself an erring mortal. He

showed rather the stern satisfaction of a man suppressing a noxious

human reptile. Thus, though he carefully avoided anything savouring of

the theatrical, the downright simplicity with which he delivered

sentence showed the strength of his feeling. He never preached to the

convicts, but spoke in plain words of their atrocities. The most

impressive sentence I ever heard, says one of his sons, was one upon a

wife-murderer at Norwich, when he rigidly confined himself to pointing

out the facts and the conclusiveness of the evidence. Another man was

convicted at Manchester of an attempt to murder his wife. He had stabbed

her several times in the neck, but happened to miss a fatal spot; and he

cross-examined her very brutally on the trial. Fitzjames, in delivering

sentence, told him that a man who had done the same thing, but with

better aim, 'stood at the last assizes where you now stand, before the

judge who is now sentencing you. The sentence upon him was that he

should be hanged by the neck till he was dead, and he was hanged by the

neck till he was dead.' The words emphatically pronounced produced a

dead silence, with sobs from the women in court. It was, he proceeded,

by a mere accident that the result of the prisoner's crime was

different, and that, therefore, the gravest sentence was the only proper

sentence; and that is 'that you be kept in penal servitude for the term

of your natural life.' This again was spoken with extreme earnestness:

and the 'life' sounded like a blow. There was a scream from the women,

and the prisoner dropped to the ground as if he had been actually

struck. Fitzjames spoke as if he were present at the crime, and uttering

the feelings roused by the ferocious treatment of a helpless woman.

Some of his letters record his sense of painful responsibility when the

question arose as to reprieving a prisoner. He mentions a case in which

he had practically had to decide in favour of carrying out a capital

sentence. 'For a week before,' he writes, 'I had the horrible feeling of

watching the man sinking, and knowing that I had only to hold out my

hand to save his life. I felt as if I could see his face and hear him

say, "Let me live; I am only thirty-five; see what a strong, vigorous,

active fellow I am, with perhaps fifty years before me: must I die?" and

I mentally answered, Yes, you must. I had no real doubts and I feel no

remorse; but it was a very horrible feeling--all the worse because when

one has a strong theoretical opinion in favour of capital punishment one

is naturally afraid of being unduly hard upon a particular wretch to

whom it is one's lot to apply the theory.' On another occasion he

describes a consultation upon a similar case with Sir W. Harcourt, then

Home Secretary. Both of them felt painfully the contrast with their old

free conversations, and discussed the matter with the punctilious

ceremony corresponding to the painfulness of the occasion. There was

something, as they were conscious, incongruous in settling a question of

life and death in a talk between two old friends.

I must briefly mention two such cases which happened to excite public

attention. On July 27 and 28, 1887, a man named Lipski was tried for a

most brutal murder and convicted. His attorney wrote a pamphlet

disputing the sufficiency of the evidence.[190] Fitzjames was trying a

difficult patent case which took up the next fortnight (August 1 to 13).

He saw the attorney on Monday, the 8th, and passed that evening and the

next morning in writing his opinion to the Home Secretary (Mr. H.

Matthews). On Thursday he had another interview with the attorney and a

thorough discussion of the whole matter with Mr. Matthews. Some points

had not been properly brought out on the trial; but the inquiry only

strengthened the effect of the evidence. Mr. Matthews decided not to

interfere, and Fitzjames went to stay with Froude at Salcombe on the

Saturday. Meanwhile articles full of gross misstatements had appeared in

certain newspapers. Fitzjames himself reflected that his occupation with

the patent case had perhaps prevented his giving a full consideration to

the case, and that an immediate execution of the sentence would at least

have an appearance of undue haste. He therefore telegraphed to suggest a

week's respite, though he felt that the action might look like yielding

to the bullying of a journalist. Mr. Matthews had independently granted

a respite upon a statement that a new piece of evidence could be

produced. Fitzjames returned on the Monday, and spent a great part of

the week in reading through all the papers, reexamining a witness, and

holding consultations with Mr. Matthews. The newspapers were still

writing, and 100 members of Parliament signed a request for a

commutation of the sentence. After the most careful consideration,

however, Fitzjames could entertain no reasonable doubt of the rightness

of the verdict, and Mr. Matthews agreed with him. A petition from three

jurors was sent in upon Sunday, the 21st, but did not alter the case.

Finally, upon the same afternoon, Lipski confessed his guilt and the

sentence was executed next day. 'I hope and believe that I have kept the

right path,' writes Fitzjames, 'but it has been a most dreadful affair.'

'I hardly ever remember so infamous and horrible a story.' He was

proportionally relieved when it was proved that he had acted rightly.

The other case, for obvious reasons, must be mentioned as briefly as

possible. On August 7, 1889, Mrs. Maybrick was convicted of the murder

of her husband. The sentence was afterwards commuted with Fitzjames's

approval, and, I believe, at his suggestion, to penal servitude for

life, upon the ground, as publicly stated, that although there was no

doubt that she had administered poison, it was possible that her husband

had died from other causes. A great deal of feeling was aroused:

Fitzjames was bitterly attacked in the press, and received many

anonymous letters full of the vilest abuse. Hatred of women generally,

and jealousy of the counsel for the defence were among the causes of his

infamous conduct suggested by these judicious correspondents. I, of

course, have nothing to say upon these points, nor would I say anything

which would have any bearing upon the correctness of the verdict. But as

attacks were made in public organs upon his behaviour as judge, I think

it right to say that they were absolutely without foundation. His

letters show that he felt the responsibility deeply; and that he kept

his mind open till the last. From other evidence I have not the least

doubt that his humanity and impartiality were as conspicuous in this as

in other cases, and I believe were not impugned by any competent

witnesses, even by those who might doubt the correctness of the

verdict.

Fitzjames's powers were such as naturally gave him unsurpassed authority

with juries in criminal cases. A distinguished advocate was about to

defend a prisoner upon two similar counts before Fitzjames and another

eminent judge. The man was really guilty: but, said the counsel, and his

prediction was verified, I shall obtain a verdict of 'not guilty' before

the other judge, but not before Stephen. In civil cases, I am told that

an impartial estimate of his merits would require more qualification.

The aversion to technicality and over-subtlety, to which I have so often

referred, appears to have limited his powers. He did not enjoy for its

own sake the process of finding a clue through a labyrinth of refined

distinctions, and would have preferred a short cut to what seemed to him

the substantial merits of the case. He might, for example, regard with

some impatience the necessity of interpreting the precise meaning of

some clause in a legal document which had been signed by the parties

concerned as a matter of routine, without their attention being drawn to

the ambiguities latent in their agreement. His experience had not made

him familiar with the details of commercial business, and he had to

acquire the necessary information rather against the grain. To be a

really great lawyer in the more technical sense, a man must, I take it,

have a mind full of such knowledge, and feel pleasure in exercising the

dialectical faculty by which it is applied to new cases. In that

direction Fitzjames was probably surpassed by some of his brethren; and

he contributed nothing of importance to the elaboration of the more

technical parts of the law. I find, however, that his critics are agreed

in ascribing to him with remarkable unanimity the virtue of

'open-mindedness.' His trenchant way of laying down his conclusions

might give the impression that they corresponded to rooted prejudices.

Such prejudices might of course intrude themselves unconsciously into

his mind, as they intrude into the minds of most of us. But no one could

be more anxious for fair play in argument as in conduct. He would give

up a view shown to be erroneous with a readiness which often seemed

surprising in so sturdy a combatant. He spared no pains in acquiring

whatever was relevant to a case; whether knowledge of unfamiliar facts

or of legal niceties and previous judicial decisions. Though his mind

was not stored with great masses of cases, he never grudged the labour

of a long investigation. He aimed at seeing the case as a whole; and

bringing out distinctly the vital issues and their relation to broad

principles. He used to put the issues before the jury as distinctly as

possible, and was then indifferent to their decision. In a criminal case

he would have been inexpressibly shocked by a wrongful conviction, and

would have felt that he had failed in his duty if a conviction had not

taken place when the evidence was sufficient. In a civil case, he felt

that he had done his work when he had secured fair play by a proper

presentation of the question to the jury. His mastery of the laws of

evidence would give weight to his opinion upon facts; though how far he

might be open to the charge of cutting too summarily knots which might

have been untied by more dexterity and a loving handling of legal

niceties, is a question upon which I cannot venture to speak positively.

I will only venture to refer to two judgments, which may be read with

interest even by the unprofessional, as vigorous pieces of argument and

lucid summaries of fact. One is the case (1880) of the 'Attorney-General

v. the Edison Telephone Company,'[191] in which the question arose

whether a telephonic message was a telegram. If so, the Company were

infringing the act which gave to the Post Office the monopoly of

transmitting telegrams. It was argued that the telephone transmitted the

voice itself, not a mere signal. Fitzjames pointed out that it might be

possible to hear both the voice transmitted through the air and the

sound produced by the vibrations of the wire. Could the two sounds,

separated by an interval, be one sound? The legal point becomes almost

metaphysical. On this and other grounds Fitzjames decided that a

telephone was a kind of telegraph, and the decision has not been

disturbed. The other case was that of the Queen v. Price,[192] tried at

Cardiff in 1883. William Price, who called himself a Druid, was an old

gentleman of singularly picturesque appearance who had burnt the body of

his child in conformity, I presume, with what he took to be the rites of

the Druids. He was charged with misdemeanour. Fitzjames gave a careful

summary of the law relating to burials which includes some curious

history. He concluded that there was no positive law against burning

bodies, unless the mode of burning produced a nuisance. The general

principle, therefore, applied that nothing should be a crime which was

not distinctly forbidden by law. The prisoner was acquitted, and the

decision has sanctioned the present practice of cremation. Fitzjames, as

I gather from letters, was much interested in the quaint old Druid, and

was gratified by his escape from the law.

IV. MISCELLANEOUS OCCUPATIONS

I have now described the most important labours which Fitzjames

undertook after his appointment to a judgeship. Every minute of the

first six years (1879-85) might seem to have been provided with ample

occupation. Even during this period, however, he made time for a few

short excursions into other matters, and though after 1885 he undertook

no heavy task, he was often planning the execution of the old projects,

and now and then uttering his opinions through the accustomed channels.

He was also carrying on a correspondence, some of which has been kindly

shown to me. The correspondence with Lord Lytton continued, though it

naturally slackened during Lytton's stay in England, from 1880 to 1887.

It revived, though not so full and elaborate as of old, when, in 1887,

Lytton became ambassador at Paris. Fitzjames's old friend, Grant Duff,

was Governor of Madras from 1881 to 1886, and during that period

especially, Fitzjames wrote very fully to Lady Grant Duff, who was also

a correspondent both before and afterwards. If I had thought it

desirable to publish any number of these or the earlier letters, I might

have easily swelled this book to twice or three times its size. That is

one good reason for abstaining. Other reasons are suggested by the

nature of the letters themselves. They are written with the utmost

frankness, generally poured out at full speed in intervals of business

or some spare moments of his so-called vacation. They made no

pretensions to literary form, and approach much more to discursive

conversations than to anything that suggests deliberate composition.

Much of them, of course, is concerned with private matters which it

would be improper to publish. A large part, again, discusses in an

unguarded fashion the same questions of which he had spoken more

deliberately in his books. There is no difference in the substance, and

I have thought it only fair to him to take his own published version of

his opinions, using his letters here and there where they incidentally

make his views clearer or qualify sharp phrases used in controversy. I

have, however, derived certain impressions from the letters of this

period and from the miscellaneous articles of the same time; which I

shall endeavour to describe before saying what remains to be said of his

own personal history.

One general remark is suggested by a perusal of the letters. Fitzjames

says frequently and emphatically that he had had one of the happiest of

lives. In the last letter of his which I have seen, written, indeed,

when writing had become difficult for him, he says that he is 'as happy

as any man can be,' and had nothing to complain of--except, indeed, his

illegible handwriting. This is only a repetition of previous statements

at every period of his life. When he speaks of the twenty-five years of

long struggle, which had enabled him to rise from the bar to the bench,

he adds that they were most happy years, and that he only wishes that

they could come over again. It is difficult, of course, to compare our

lot with that of our neighbours. We can imagine ourselves surrounded by

their circumstances, but we cannot so easily adopt their feelings.

Fitzjames very possibly made an erroneous estimate of the pains and

pleasures which require sensibilities unlike his own; and conversely it

must be remembered that he took delight in what would to many men be a

weariness of the flesh. The obviously sincere belief, however, in his

own happiness proves at least one thing. He was thoroughly contented

with his own position. He was never brooding over vexations, or dreaming

of what might have been. Could he have been asked by Providence at any

time, Where shall I place you? his answer would almost always have been,

Here. He gives, indeed, admirable reasons for being satisfied. He had

superabundant health and strength, he scarcely knew what it was to be

tired, though he seemed always to be courting fatigue, or, if tired, he

was only tired enough to enjoy the speedy reaction. His affections had

a strength fully proportioned to his vigour of mind and body; his

domestic happiness was perfect; and he had a small circle of friends

both appreciative and most warmly appreciated. Finally, if the outside

world was far from being all that he could wish, it was at least

superabundantly full of interest. Though indifferent to many matters

which occupy men of different temperament, he had quite enough not only

to keep his mind actively engaged, but to suggest indefinite horizons of

future inquiry of intense interest. He was in no danger of being bored

or suffering from a famine of work. Under such conditions, he could not

help being happy.

Yet Fitzjames's most decided convictions would have suited a

thorough-going pessimist. Neither Swift nor Carlyle could have gone much

beyond him in condemning the actual state of the political or religious

condition of the world. Things, on the whole, were in many directions

going from bad to worse. The optimist is apt to regard these views as

wicked, and I do not know whether it will be considered as an

aggravation or an extenuation of his offence that, holding such

opinions, Fitzjames could be steadily cheerful. I simply state the fact.

His freedom from the constitutional infirmities which embittered both

the great men I have mentioned, and his incomparably happier domestic

circumstances, partly account for the difference. But, moreover, it was

an essential part of his character to despise all whining. There was no

variety of person with whom he had less sympathy than the pessimist

whose lamentations suggest a disordered liver. He would have fully

accepted the doctrine upon which Mr. Herbert Spencer has insisted, that

it is a duty to be happy. Moreover, the way to be happy was to work.

Work, I might almost say, was his religion. 'Be strong and of a good

courage' was the ultimate moral which he drew from doubts and

difficulties. Everything round you may be in a hideous mess and jumble.

That cannot be helped: take hold of your tools manfully; set to work

upon the job that lies next to your hand, and so long as you are working

well and vigorously, you will not be troubled with the vapours. Be

content with being yourself, and leave the results to fate. Sometimes

with his odd facility for turning outwards the ugliest side of his

opinions, he would call this selfishness. It is a kind of selfishness

which, if everyone practised it, would not be such a bad thing.

I must mention, though briefly, certain writings which represent his

views upon religious matters: I have sufficiently indicated his

position, which was never materially changed. His thoughts ran in the

old grooves, though perhaps with a rather clearer perception of their

direction. In June 1884 he published an article upon the 'Unknown and

the Unknowable' in the 'Nineteenth Century,' declaring that Mr. Herbert

Spencer's 'Unknowable' and Mr. Harrison's 'Humanity' were mere shadowy

figments. 'Religion,' he maintains, will not survive theology. To this,

however, he adds, with rather surprising calmness, that morality will

survive religion. If the Agnostics and Positivists triumph, it will be

transformed, not abolished. The Christian admiration for self-sacrifice,

indeed, and the Christian mysticism will disappear, and it will turn out

that the respectable man of the world and the lukewarm believer were

after all in the right. Considering his own dislike to the mystic and

the priestly view of things, this might almost seem to imply a

reconciliation with the sceptics. He observes, indeed, in a letter that

there is really little difference between himself and Mr. Harrison,

except in Mr. Harrison's more enthusiastic view of human nature. But he

confesses also that the article has given pleasure to his enemies and

pain to his friends. Though his opinions, in short, are sceptical, the

consequences seem to him so disagreeable that he has no desire to insist

upon them. In fact, he wrote little more upon these topics. He was,

indeed, afterwards roused to utterance by an ingenious attempt of Mr.

Mivart to show a coincidence between full submission to the authority of

the Catholic Church and an equal acceptance of the authority of reason.

In a couple of articles in the 'Nineteenth Century' (October 1887 and

January 1888), he argued with his old vigour that Mr. Mivart was in fact

proposing to put a match in a powder barrel and expect half to explode

and the other half to remain unaffected. This was his last encounter

upon the old question of authority. In the same year (April and May

1888) he wrote two articles upon a book by which he was singularly

interested, Professor Max Mueller's 'Science of Thought'; he expounds

Professor Max Mueller's philology in the tone of an ardent disciple, but

makes his own application to philosophy. I do not suppose that the

teacher would accept all the deductions of his follower. Fitzjames, in

fact, found in the 'Science of Thought' a scientific exposition of the

nominalism which he had more or less consciously accepted from Hobbes or

Horne Tooke. Max Mueller, he says, in a letter, has been knocking out the

bottom of all speculative theology and philosophy. Thought and language,

as he understands his teacher to maintain, are identical. Now language

is made up of about 120 roots combined in various ways. The words

supposed to express more abstract conceptions, some of them highly

important in theology, are mere metaphors founded upon previous

metaphors, twisted and changed in meaning from century to century.

Nothing remains but an almost absolute scepticism, for on such terms no

certainty can be obtained. In a letter he states that the only problems

which we can really solve are those of space and number; that even

astronomy involves assumptions to which there are 'unanswerable

objections'; that what is loosely called science, Darwinism, for

example, is 'dubious in the extreme'; that theology and politics are so

conjectural as to be practically worthless; and judicial and historical

evidence little more than a makeshift. In short, his doctrine is

'scepticism directed more particularly against modern science and

philosophy.' I do not take these hasty utterances as expressing a

settled state of opinion. I only quote them as vehement expressions of

an instinctive tendency. His strong conviction of the fallacies and

immoralities of the old theological dogmatism was combined with an

equally strong conviction of the necessity of some embodiment of the

religious instincts and of the impotence of the scientific dogmatism to

supply it. He therefore was led to a peculiar version of the not

uncommon device of meeting the sceptic by a more thorough-going

scepticism. It is peculiar because he scorned to take the further step

of accepting a dogmatic belief on sceptical grounds; but it certainly

left him in a position of which silence was, if I may say so, the only

obvious expression of his feeling.

One curious illustration of his feelings is given by an utterance at the

beginning of this period. Nobody had less tendency to indulge in

versification. When a man has anything to say, he observes to Lord

Lytton on one occasion, as an excuse for not criticising his friend

adequately, 'I am always tempted to ask why he cannot say it in plain

prose.' I find now that he once wrote some lines on circuit, putting a

judgment into rhyme, and that they were read with applause at a dinner

before the judges. They have disappeared; but I can quote part of his

only other attempt at poetry. Tennyson's poem called 'Despair' had just

appeared in the 'Nineteenth Century' for November 1881. The hero, it

will be remembered, maddened by sermons about hell and by 'know-nothing'

literature, throws himself into the sea with his wife and is saved by

his preacher. The rescuer only receives curses instead of thanks.

Fitzjames supplies the preacher's retort.[193] I give a part; omitting a

few lines which, I think, verged too much on the personal:--

So you're minded to curse me, are you, for not having let you be,

And for taking the trouble to pull you out when your wife was drowned

in the sea?

I'm inclined to think you are right--there was not much sense in it;

But there was no time to think--the thing was done in a minute.

You had not gone very far in; you had fainted where you were found,

You're the sort of fellow that likes to drown with his toe on the

ground.

However, you turn upon me and my creed with all sorts of abuse,

As if any preaching of mine could possibly be of use

To a man who refused to see what sort of a world he had got

To live in and make the best of, whether he liked it or not.

I am not sure what you mean; you seem to mean to say

That believing in hell you were happy, but that one unfortunate day

You found out you knew nothing about it, whereby the troubles of life

Became at once too heavy to bear for yourself and your wife.

That sounds silly; so, perhaps, you may mean that all is wrong all

round,

My creed and the know-nothing books, and that truth is not to be

found--

That's sillier still: for, if so, the know-nothing books are right,

And you're a mere spiritless cur who can neither run nor fight,

Too great a coward to live and too great a coward to die,

Fit for nothing at all but just to sit down and cry.

. . . . . . . . .

Why, man, we're all in one boat, as everyone can see,

Bishops, and priests, and deacons, and poor little ranters like me.

There's hell in the Church of England and hell in the Church of Rome,

And in all other Christian Churches, abroad as well as at home.

The part of my creed you dislike may be too stern for you,

Many brave men believe it--aye, and enjoy life, too.

The know-nothing books may alarm you; but many a better man

Knows he knows nothing and says so, and lives the best life he can.

If there is a future state, face its hopes and terrors gravely;

The best path to it must be to bear life's burthens bravely.

And even if there be none, why should you not live like a man,

Enjoying whatever you have as much and as long as you can?

In the world in which we are living there's plenty to do and to know;

And there's always something to hope for till it's time for us to go.

'Despair' is the vilest of words, unfit to be said or thought,

Whether there is a God and a future state or not.

If you really are such a wretch, that you're quite unfit to live,

And ask my advice, I'll give you the best that I have to give:

Drown yourself by all means; I was wrong and you were right.

I'll not pull you out any more; but be sure you drown yourself quite.

'Despair is the vilest of words.' That expresses Fitzjames's whole

belief and character. Faiths may be shaken and dogmas fade into

meaningless jumbles of words: science may be unable to supply any firm

ground for conduct. Still we can quit ourselves like men. From doubt and

darkness he can still draw the practical conclusion, 'Be strong and of a

good courage.' And, therefore, Fitzjames could not be a pessimist in the

proper sense; for the true pessimist is one who despairs of the

universe. Such a man can only preach resignation to inevitable evil, and

his best hope is extinction. Sir Alfred Lyall's fine poem describes the

Hindoo ascetic sitting by the bank of the sacred stream and watching the

legions as they pass while cannon roar and bayonets gleam. To him they

are disturbing phantoms, and he longs for the time when they will

flicker away like the smoke of the guns on the windswept hill. He

meanwhile sits 'musing and fasting and hoping to die.' Fitzjames is the

precise antithesis: his heart was with the trampling legions, and for

the ascetic he might feel pity, but certainly neither sympathy nor

respect. He goes out of his way more than once to declare that he sees

nothing sublime in Buddhism. 'Nirvana,' he says in a letter, 'always

appeared to me to be at bottom a cowardly ideal. For my part I like far

better the Carlyle or Calvinist notion of the world as a mysterious hall

of doom, in which one must do one's fated part to the uttermost, acting

and hoping for the best and trusting' that somehow or other our

admiration of the 'noblest human qualities' will be justified. He had

thus an instinctive dislike not only for Buddhism, but for the strain of

similar sentiment in ascetic versions of Christianity. He had a great

respect for Mohammedanism, and remarks that of all religious ceremonies

at which he had been present, those which had most impressed him had

been a great Mohammedan feast in India and the service in a simple

Scottish kirk. There, as I interpret him, worshippers seem to be in the

immediate presence of the awful and invisible Power which rules the

universe; and without condescending to blind themselves by delusive

symbols and images and incense and priestly magic, stand face to face

with the inscrutable mystery. The old Puritanism comes out in a new

form. The Calvinist creed, he says in 'Liberty, Equality, Fraternity,'

was the 'grain on which the bravest, hardiest, and most vigorous race of

men that ever trod the earth were nourished.' That creed, stripped of

its scholastic formulas, was sufficient nourishment for him. He

sympathises with it wherever he meets it. He is fond of quoting even a

rough blackguard, one Azy Smith, who, on being summoned to surrender to

a policeman, replied by sentencing 'Give up' to a fate which may be left

to the imagination. Fitzjames applied the sentiment to the British

Empire in India. He was curiously impressed, too, by some verses which

he found in an Australian newspaper and was afterwards given to quoting.

They turned out to be written by Adam Lindsay Gordon (the 'Sick

Stockrider').

I have had my share of pastime, and I've done my share of toil,

And life is short--the longest life a span.

I care not now to tarry for the corn or for the oil,

Or for the wine that maketh glad the heart of man;

For good undone and time misspent and resolutions vain

'Tis somewhat late to trouble--this I know;

I would live the same life over if I had to live again

And the chances are I go where most men go.

I am perfectly well aware of the comments which that statement may

suggest. The orthodox may, if they please, draw a moral for their own

tastes; and I could draw a moral which is not quite orthodox. I only say

that I have tried to describe his final position in the matter, without

reserve; and that, in my opinion, whatever else it shows, it reveals

both the sincerity and the manliness of a man who dared to look facts in

the face.

I must speak, though briefly, of his political sympathies in this

period, for they were exceedingly deep and strong. His position as a

judge gave him the solace of an employment which could divert his mind

from annoying reflections. It may be held that it should also have

restrained him more completely than it did from taking any part in party

controversies. I confess that to be my own opinion. He felt that he

ought to keep within limits; but I cannot help thinking that they might

have been a little closer than he would quite acknowledge. The old

journalistic impulse, however, stirred within him when he saw certain

political moves, and he found it impossible quite to keep silence. The

first occasion of his writing was upon the starting of the 'St. James's

Gazette,' under the editorship of his old friend Mr. Greenwood. Both

personal and political sympathy induced him, as he put it, 'to take Mr.

Greenwood's shilling,' and I believe that he also enlisted Maine.

Besides the poem which I have quoted, he wrote a good many articles upon

legal and literary topics from 1881 to 1883, and some which came very

close to contemporary politics. The doctrine may be pretty well summed

up in the phrase which he quotes more than once--[Greek: Demos psephizon

megalen archen dialysei.] I need not follow the applications which he

indicates both to Indian matters and to Mr. Gladstone's Irish policy.

He ceased to contribute after the beginning of 1883, but he wrote

occasional letters under his own name to the 'Times.' The chief of

these (I believe that there were others) were reprinted, and attracted

some notice. In 1883 a question arose in which he had a special

interest. In passing the Criminal Procedure Bill he had accepted what

was described as a compromise. Magistrates were to receive powers of

dealing summarily in trifling cases with Europeans who had previously

had a right to be tried by juries before the High Courts. Fitzjames

accepted the proposal that the power should be entrusted only to

magistrates of European birth. The 'Ilbert Bill,' in 1883, proposed to

remove this restriction, and so to confer a right of imprisoning

Europeans for three months upon native magistrates, of whom there were

now a greater number. Fitzjames, whose name had been mentioned in the

controversy, wrote very earnestly against this proposal.[194] He

asserted the right of Englishmen to be tried by magistrates who could

understand their ways of thought, and approved the remark that if we

were to remove all anomalies from India, our first step should be to

remove ourselves. This, however, was, to his mind, only one example of

the intrusion of an evil principle. A more serious case occurred upon

Mr. Gladstone's introduction of the first Home Rule Bill in 1886.

Fitzjames wrote some elaborate letters upon the 'Irish Question,' when

the measure was anticipated, and wrote again upon the bill when the

debates upon Mr. Gladstone's proposals were in progress.[195] The

letters begin by disavowing any 'party politics'--a phrase which he does

not consider to exclude an emphatic expression of opinion both upon Home

Rule and upon the Land Legislation. It is entirely superfluous to

summarise arguments which have been repeated till nobody can want to

hear more of them. Briefly, I may say that Fitzjames's teaching might be

summarised by saying that Ireland ought to be governed like

India--justly, and in any case firmly. The demands both for Home Rule

and for land legislation are, according to him, simply corollaries from

the general principles of Jacobinism and Socialism. The empire will be

destroyed and the landlords will be plundered. Virtually we are dealing

with a simple attempt at confiscation supported by an organised system

of crime. The argument is put with his usual downright force, and

certainly shows no symptoms of any decline of intellectual vigour. He

speaks, he says, impelled by the 'shame and horror' which an Englishman

must feel at our feebleness, and asks whether we are cowards to be

kicked with impunity? Sometimes he hoped, though his hopes were not

sanguine, that a point would yet be reached at which Englishmen would be

roused and would show their old qualities. But as a rule he turned, as

his letters show, from the contemplation of modern politics with simple

disgust. He is glad that he is, for the time at least, behind a safe

breakwater, but no one can say how much longer it will withstand the

advancing deluge.

Three months' rest after the attack of 1885 enabled him to go the summer

circuit, and during the latter part of the year he was recovering

strength. He became so much better that he was, perhaps, encouraged to

neglect desirable precautions, and early in 1886 he writes that he has

been able to dismiss from his mind a passing fear which had been vaguely

present, that he might have to resign. In the following September, Mr.

W. H. Smith requested him to become chairman of a Commission to inquire

into the Ordnance Department. What he learnt in that capacity

strengthened his conviction as to the essential weakness of our

administrative system; although the rumours of corruption, to which, I

believe, the Commission was owing, were disproved. He made, however,

such suggestions as seemed practicable under the circumstances. While

the Commission lasted he presided three days a week, and sat as judge

upon the other three. He felt himself so competent to do his duties as

to confirm his belief that he had completely recovered. He did a certain

amount of literary work after this. He made one more attempt to produce

a second edition of the 'View of the Criminal Law.' Indeed, the

title-page gives that name to his performance. Once more, however, he

found it impossible to refrain from re-writing. The so-called second

edition is more properly an abbreviated version of the 'History,' though

the reports of trials still keep their place; and, as the whole forms

only one moderately thick volume, it represents much less labour than

its predecessors. It includes, however, the result of some later

inquiries and of his judicial experience. He abandons, for example, an

opinion which he had previously maintained in favour of a Court of

Appeal in criminal cases, and is now satisfied with the existing system.

In this shape it is virtually a handbook for students, forming an

accompaniment to the 'Digest' and the 'History.' It was the last of his

works upon legal topics.

Meanwhile, if he wrote little, he was still reading a great variety of

books, and was deeply interested in them. His letters are full of

references to various authors, old and new. His criticisms have the

primary merits of frankness and independence. He says exactly what he

feels, not what the critics tell him that he ought to feel. No criticism

can be really valuable which does not fulfil those conditions. I must

admit, however, that a collection of his remarks would include a good

many observations rather startling to believers in the conventional

judgments. Purely literary qualities impress him very little unless they

are associated with some serious purpose. He shows the same sort of

independence which enabled him to accept a solitary position in

religious and political matters. In private letters, moreover, he does

not think it necessary to insist upon the fact, which he would have

fully admitted, that the great object of criticism is always the critic

himself. A man who says that he can't see, generally proves that he is

blind, not that there is no light. If only for this reason, I would not

quote phrases which would sound unduly crude or even arrogant when taken

as absolute judgments, instead of being, as they often are, confessions

of indifference in the form of condemnations. When a great writer really

appeals to him, he shows no want of enthusiasm. During the enforced rest

in 1885 he studied Spanish with great zeal; he calls it a 'glorious

language,' and had the proverbial reward of being enabled to read 'Don

Quixote' in the original. 'Don Quixote,' he says, had always attracted

him, even in the translations, to a degree for which he cannot quite

account. His explanation, however, is apparently adequate, and certainly

characteristic. He sees in Cervantes a man of noble and really

chivalrous nature, who looks kindly upon the extravagance which

caricatures his own qualities, but also sees clearly that the highest

morality is that which is in conformity with plain reason and common

sense. Beneath the ridicule of the romances there is the strongest

sympathy with all that is really noble.

After Spanish and Cervantes, Fitzjames turned to Italian and Dante.

Dante, too, roused his enthusiasm, and he observes, quaintly enough,

that he means to be as familiar with the 'Divina Commedia' as he once

was with Bentham--two authors rarely brought into contact. Dante

conquered him the more effectually by entering over the ruins of Milton.

Some years before he had pronounced the 'Paradise Lost' to be 'poor,

contradictory, broken-down stuff, so far as the story goes.' He inferred

that 'poetry was too slight an affair to grapple with such an awful

subject.' He had, however, already read Dante in Cary's translation, and

thereby recognised something far greater. When he came to the original

he was profoundly impressed. It is strange, he says, that he has learnt

for the first time at the age of sixty what a really great poem could

be. Poor Milton's adaptation of pagan mythology to the Hebrew legends,

in order to expound Puritan theology, results in a series of solecisms,

which even the poet could not expect his readers to take seriously. The

story, taken for history, certainly breaks down sufficiently to justify

a severe remark. But Dante's poem, embodying a consistent imagery into

which was worked the whole contemporary philosophy and theology, is of

absorbing interest even to those who are comparatively indifferent to

its more purely literary merits. Fitzjames does not make any detailed

criticisms, but fittingly expresses his astonishment and admiration upon

Dante's revelation of a new world of imagination. I think that it is

possible to show fitting reverence for Dante without deposing Milton

from his much lower, though still very lofty place. But to one brought

up in the old English traditions it was difficult to avoid the rather

superfluous contrast.

With the help of such studies and frequent visits to old friends, and

minor literary tasks, Fitzjames could find ample means of filling up any

spaces left by his judicial duties. In spite of the disgust with which

he regarded the political world, he was happy in his own little world;

and his time passed in a peaceful round of satisfactory work. A few

troublesome cases, those especially of which I have spoken, gave him

occasional worry; but he could adhere to his principle of never fretting

unnecessarily. But now was to begin the painful experience which comes

to the survivors when the ranks begin to thin. He felt such losses

deeply, if with little display of feeling. I find a remark in one of his

letters which is, I think, characteristic. He says that his first

feeling upon a severe blow had been something like shame at not

suffering more. But in a few weeks the sense of loss had become deeper

and stronger; and he had to remind himself of the necessity of

conquering his depression. I have no need, I hope, to dwell upon the

strength of his affections. I can never forget one occasion when his

sympathies were deeply stirred; and when his sense of a certain

awkwardness in expressing himself, a relic of his old prejudice against

'sentimentalism,' served only to bring out most pathetically the power

of the emotions with which he was struggling.

Two severe losses marked the year 1888. Maine died on February 3. The

old friendship had lost none of its warmth; and Fitzjames had frequently

enjoyed visits to the lodge at Trinity Hall, where Maine, as master,

presided over the Christmas gatherings. Fitzjames commemorated his

friend by an article in the 'Saturday Review.[196] In a warm eulogy, he

praises the 'clearness and sobriety of Maine's generalisations as well

as their intrinsic probability,' and declares that the books were

written 'as if by inspiration.' Maine, he says, was equally brilliant as

a journalist, as a statesman, and as a thinker. Fitzjames speaks, though

a little restrained by his usual reserve, of the 'brotherly intimacy of

forty years, never interrupted by a passing cloud'; and ends by saying

that there are 'persons to whom the world can never have the same aspect

again as when Maine lived in it.' It had been a great pleasure, I may

add, that he had been able to appoint one of his friend's sons, who died

soon after the father, to a clerkship of assize on the South Wales

circuit.

In the autumn Maine was followed by Venables. Fitzjames paid an annual

visit to the house where Venables lived with his brother at Llysdinam,

on the border of Radnorshire. He often mentions in his letters the

filial affection with which he regarded Venables. In the previous year

(1887) he had an opportunity of expressing this more directly than

usual. One of Venables' friends, Mr. Pember, had suggested that they

might show their affection by presenting a stained glass window to a

church which Venables had built. Fitzjames took up the plan warmly, and

with the help of a few other friends carried out the scheme. When it was

made known to Venables, who of course was much gratified, Fitzjames

wrote to him a letter (August 1, 1887) of which I quote the important

part. 'I found your letter on my return from the country this morning.

You are quite right in thinking that I did say a great deal less than I

meant. I feel shy in putting into quite plain words what I feel about

you; but I do not like such things to prevent me from saying just once

that I like you, honour you, and respect and admire you more than almost

any man I ever knew. For nearer forty than thirty years you have been to

me a sort of spiritual and intellectual uncle or elder brother, and my

feelings about you have constantly grown and strengthened as my own

experience of men and books has ripened and deepened and brought me into

closer and closer sympathy with you and more complete conscious

agreement with all your opinions and sentiments. I can recall none of

your words and writings which I have not cordially approved of, and I

shall always feel deeply grateful to Mrs. Lyster Venables (Venables'

sister-in-law), for whom also I feel the warmest friendship, and to

Pember for suggesting to me a way of showing my feelings about you,

which would never have occurred to a person so abundantly gifted with

clumsy shyness as myself. However, I do not believe you will like me the

worse for having the greatest possible difficulty in writing to any man

such a letter as this.'

The three lights of the window, representing Moses, Aaron, and Joshua,

were intended as portraits of Venables and his two brothers. Beneath was

the inscription suggested by Mr. Pember, 'Conditori hujus ecclesiae

amicissimi quidam.' Fitzjames adds that he had felt 'a passing wish' to

add his favourite words, 'Be strong and of a good courage,' which, at

his suggestion, Dean Stanley had taken as the text for a funeral sermon

upon Lord Lawrence. I will only add that Fitzjames had said in private

letters substantially what he said to Venables himself. On October 8,

1888, he heard of his old friend's death, and again wrote an article of

warm appreciation in the 'Saturday Review.'

V. JAMES KENNETH STEPHEN

I have now to give a brief notice of events which had a saddening

influence upon the later years. Fitzjames, as I have remarked, had seen

comparatively little of his elder children in their infancy. As they

grew up, however, they had been fully admitted to his intimacy and

treated on the footing of trusted and reasonable friends. The two

younger daughters had been playthings in their infancy, and grew up in

an atmosphere of warm domestic affection. Just before Venables' death

Fitzjames made a little tour in the West of Ireland with his daughter

Rosamond, who has preserved a little account of it. I shall only say

that it proves that she had a delightful travelling companion; and that

his straightforward ways enabled him to be on the friendliest terms with

the natives whom he encountered. Among the frequent declarations of the

happiness of his life, he constantly observes that one main condition

was that his children had never given him a moment's uneasiness. Two,

indeed, had died in infancy; and Frances, a very promising girl, had

died of rheumatic fever July 27, 1880. Such troubles, however deeply

felt, cannot permanently lessen the happiness of a healthy and energetic

life. His three sons grew into manhood; they all became barristers, and

had all acted at different times as his marshals. I shall say nothing of

the survivors; but I must speak briefly of the one who died before his

father.

James Kenneth Stephen was born on February 25, 1859.[197] His second

name commemorates his father's friendship for his godfather, Kenneth

Macaulay. He was a healthy lad, big and strong, and soon showed much

intellectual promise. He was at the school of Mr. William Browning at

Thorpe Mandeville; and in 1871 won a foundation scholarship at Eton,

where he became the pupil of Mr. Oscar Browning, the brother of his

former master. He already gave promise of unusual physical strength, and

of the good looks which in later years resulted from the singular

combination of power and sweetness in his features. The head of his

division was H. C. Goodhart, afterwards Professor of Latin at the

University of Edinburgh.[198] Other boys in the division were George

Curzon and Cecil Spring Rice. James was surpassed in scholarship by

several of his friends, but enjoyed a high reputation for talent among

his cleverest contemporaries. The school, it appears, was not quite so

much absorbed by the worship of athletics as was sometimes imagined.

James, however, rowed for two years in the boats, while his weight and

strength made him especially formidable at the peculiar Eton game of

football 'at the wall.' The collegers, when supported by his prowess,

had the rare glory of defeating the Oppidans twice in succession. He was

ever afterwards fond of dilating with humorous enthusiasm upon the

merits of that game, and delighted in getting up an eleven of old

Etonians to play his successors in the school. He was, however, more

remarkable for intellectual achievements. With Mr. Spring Rice and

another friend he wrote the 'Etonian,' which lasted from May 1875 to

August 1876; and several of the little poems which he then wrote were

collected afterwards in his 'Lapsus Calami.'[199] They are, of course,

chiefly in the humorous vein, but they show sufficiently that Eton was

to him very different from what it had been to his father. He was a

thoroughly loyal and even enthusiastic Etonian; he satirises a caviller

by putting into his mouth the abominable sentiment--

Ye bigot spires, ye Tory towers,

That crown the watery lea,

Where grateful science still adores

The aristocracy.

His genuine feeling is given in the lines on 'My old School':--

And if sometimes I've laughed in my rhymes at Eton,

Whose glory I never could jeopardise,

Yet I'd never a joy that I could not sweeten,

Or a sorrow I could not exorcise,

By the thought of my school and the brood that's bred there,

Her bright boy faces and keen young life;

And the manly stress of the hours that sped there,

And the stirring pulse of her daily strife.

To the last he cherished the memory of the school, and carefully

maintained his connection with it. One odd incident occurred in 1875,

when James got up a 'constitutional opposition' to the intrusion of the

revivalist preachers Moody and Sankey. His father wrote him a judicial

letter of advice, approving his action so long as it was kept within due

limits. He takes occasion to draw the moral that the whole power of such

people depends upon the badness of their hearers' consciences. A man who

has nothing to hide, who is 'just, benevolent, temperate and brave,' can

'look at things coolly and rate such people at their value.' Those 'few

words' (i.e. the names of the virtues) 'are the summary of all that is

worth having in life. Never forget any one of them for one moment,

though you need not talk about them any more than you talk about your

watch.' James had a marked influence in the college; he was a leading

orator in the school debating societies; and his good sayings were as

familiarly quoted as those of Sydney Smith or Luttrell in the larger

world. Mr. Cornish, who was his tutor for a time, tells me of the charm

of James's talk with his elders, and says that, although he was careless

on some matters upon which schoolmasters set a high value, he always

showed power and originality. He won an English Essay prize in 1875, the

History prize in 1876 and 1877, the Declamation prize in 1878, and was

one of the 'select' for the Newcastle in 1877.

James went to King's with a scholarship in 1878. He gave up classics and

took to history. He took a first class (bracketed first in the class) in

the historical tripos, but was only in the second class in the law

tripos. Besides prizes for college essays, he won the 'Member's Prize'

for an essay upon Bolingbroke in 1880, and the Whewell Scholarship for

International Law in 1881. He succeeded in every competition for which

he really exerted himself; although, like his father, he was rather

indifferent to the regular course of academical instruction. Among his

contemporaries, however, he enjoyed the kind of fame which is perhaps of

still better augury for future success. King's College in his day, says

Mr. Browning, was only emerging slowly from the effects of its close

dependence upon Eton. It had been in former days chiefly a little clique

of older schoolboys. James helped much to change this, and distinctly

raised the intellectual tone of the place. He was a well-known speaker

at the Union, of which he was president in 1882. He was an 'Apostle'

too; and in May 1881 his father visited him in Cambridge, and attended a

meeting of the Society where James read a paper. Although, therefore, he

scarcely won such a share of academical honours as might have been

expected, James was regarded by his friends as the man of his time who

was most definitely marked out for distinction in later years. His

friends, indeed, were innumerable; and from all with whom I have

communicated there is a unanimous testimony not only to his intellectual

promise, but to his influence in promoting a high tone of thought and

feeling. His father's letters frequently refer to him. James, he says,

is a 'splendid young fellow'; he will surpass his father in due time,

and be the fourth distinguished man of his name. James, he says once,

using the epithet which in his mouth conveyed the highest praise, is a

'sturdier' fellow in many ways than I was, and writes better than I

could at his age. One achievement of the son rather extorted than

attracted his father's praise. He appeared in a Greek play as Ajax, a

part for which his massive frame and generally noble appearance fitted

him admirably. The father admitted that he had a certain dislike to a

man's exhibiting himself personally, but was reconciled by observing

that James acted more like a gentleman amusing himself than like a

professional performer.

How far these anticipations of success would ever have been fulfilled

must remain uncertain. James may not have had his father's extraordinary

vigour, but he undoubtedly had one quality in which his father was

defective. He had a surprising facility in making friendly alliances

with all sorts and conditions of men. His opinions partly resembled his

father's. In politics he was of the Conservative tendency, and he was

certainly not of the orthodox persuasion in theology. But he was equally

at ease with Tories and Home Rulers, Roman Catholics and Agnostics; and

his cheery, cordial manners put him at once on the best understanding

with everybody. There was something contagious in the enthusiasm of a

young man who seemed so heartily to appreciate the simple joy of living.

Perhaps his weakness was to be a little too versatile in his sympathies

and interests.

After taking his degree, James spent some time in Germany and France. He

was elected to a fellowship at King's College in 1885, and as a

candidate wrote dissertations upon 'Political Science' and

'International Law.'[200] He was elected, it is said, as much upon the

strength of his general ability as for any special performance.

He was called to the bar in 1884, and naturally employed his spare time

upon journalism. He wrote a good deal for Mr. Greenwood in the 'St.

James's Gazette,' and had extraordinary facility as a writer. Mr.

Reginald Smith tells me how James once wrote a leading article in the

train between Paddington and Maidenhead. Many of the little poems which

he contributed to periodicals were improvised. He was famous for wit and

readiness as an after-dinner speaker; and showed an oratorical power in

electioneering speeches which gave the highest hopes of parliamentary

success. Indeed, from all that I have heard, I think that his powers in

this direction made the greatest impression upon his friends, and

convinced them that if he could once obtain an opening, he would make a

conspicuous mark in public life.

At the end of 1886 he had an accident, the effects of which were far

more serious than appeared at the time. He was staying at Felixstowe,

and while looking (December 29, 1886) at an engine employed in pumping

water he received a terrible blow upon the head. He returned to his work

before long, but it was noticed that for some time he seemed to have

lost his usual ease in composition. He was supposed, however, to have

recovered completely from the effects of the blow. In the early part of

1888 he astonished his friends by producing a small weekly paper called

the 'Reflector.' It appeared from January 1 to April 21, 1888. He

received help from many friends, but wrote the chief part of it himself.

The articles show the versatility of his interests, and include many

thoughtful discussions of politics and politicians, besides excursions

into literature. Perhaps its most remarkable quality was not favourable

to success. It was singularly candid and moderate in tone, and obviously

the work of a thoughtful observer. Probably the only chance of success

for such a periodical would have been to make a scandal by personality

or impropriety. To expect a commercial success from a paper which relied

only upon being well written was chimerical, unless the author could

have afforded to hold out in a financial sense for a much longer period.

The expense gave a sufficient reason for discontinuing it; and it is

now, I fear, to be inferred that the venture was one of the first signs

of a want of intellectual balance.

Meanwhile, it seemed to indicate that James had literary tastes which

would interfere with his devotion to the bar. Some months later (June

1888) his father appointed him to the clerkship of assize on the South

Wales circuit, which had become vacant by the death of Maine's son.

He now took comparatively little interest in his profession and spoke of

taking more exclusively to literature. Clearer symptoms showed

themselves before long of the disease caused by the accident. I have no

wish to dwell upon that painful topic. It is necessary, however, to say

that it gradually became manifest that he was suffering from a terrible

disease. He had painful periods of excitement and depression.

Eccentricities of behaviour caused growing anxiety to his family; and

especially to his father, whose own health was beginning to suffer from

independent causes. I will only say that exquisitely painful as the

position necessarily was to all who loved him, there was something

strangely pathetic in his whole behaviour. It happened that I saw him

very frequently at the time; and I had the best reasons for remarking

that, under all the distressing incidents, the old most lovable nature

remained absolutely unaffected. No one could be a more charming

companion, not only to his contemporaries but to his elders and to

children, for whose amusement he had a special gift. He would reason in

the frankest and most good-humoured way about himself and his own

affairs, and no excitement prevented him for a moment from being

courteous and affectionate.

He resolved at last to settle at Cambridge in his own college in October

1890; resigning his clerkship at the same time. At Cambridge he was

known to everyone, and speedily made himself beloved both in the

University and the town. He spoke at the Union and gave lectures, which

were generally admired. And here, too, in 1891 he published two little

volumes of verse: 'Lapsus Calami' and 'Quo Musa Tendis?' Four editions

of the first were published between April and August.[201] It started

with an address to Calverley, most felicitous of minor poets of

Cambridge; and the most skilful practisers of the art thought that James

had inherited a considerable share of his predecessor's gift. I,

however, cannot criticise. No one can doubt that the playful verses and

the touches of genuine feeling show a very marked literary talent, if

not true poetic power. He seems, I may remark, to have had a special

affinity for Browning, whom he parodied in a way which really implied

admiration. He took occasion to make a graceful apology in some verses

upon Browning's death.[202] But to me the little volume and its

successor speak more of the bright and affectionate nature which it

indicates, and the delight, veiled by comic humour, in his friendships

and in all the school and college associations endeared by his friends'

society. The 'Quo Musa Tendis?' composed chiefly of poems contributed to

various papers in the interval, appeared in September 1891.

Mr. Oscar Browning quotes some phrases from one of James's letters in

November, which dwell with lively anticipation upon the coming term. For

a time, in fact, he seemed to be in excellent spirits and enjoying his

old pursuits and amusements. But a change in his condition soon

occurred. He had to leave Cambridge at the end of November; and he died

on February 3, 1892. Many bright hopes were buried with him; but those

who loved him best may find some solace in the thought that few men have

been so surrounded by the affection of their fellows, or have had, in

spite of the last sad troubles, so joyous or so blameless a life.

James's college friends have put up a brass to his memory in King's

College Chapel. His family erected a fountain near Anaverna. His father

added a drinking-cup as his own special gift, and took the first draught

from it October 25, 1892, when about to take his final leave of the

place.

VI. CONCLUSION

What remains to be told of Fitzjames's life shall be given as briefly as

may be. The death of James had been preceded by the death of Lord

Lytton, November 24, 1891, which was felt deeply by the survivor. His

own health gave fresh cause for anxiety during the latter part of 1889,

though happily he had little suffering at any time beyond some

incidental inconvenience. On March 17, 1890, he had an attack of illness

during the assizes at Exeter resembling that which he had previously had

at Derby. He was again ordered to rest for three months. Sir A. Clark

allowed him to go on circuit in the summer. Lord Coleridge was his

colleague, and Fitzjames enjoyed his society. He afterwards went to

Anaverna, and, though unable to walk far, took much pleasure in long

drives. Meanwhile it began to be noticed that his mind was less powerful

than it had hitherto been. It was an effort to him to collect his

thoughts and conduct a case clearly. A competent observer stated as his

general view that Fitzjames was at intervals no longer what he had

been--a remarkably strong judge--but that he could still discharge his

duties in a way which would have caused no unfavourable comments had he

been new to the work. Remarks, however, began to be made in the press

which may have been more or less exaggerated. I need only say that

Fitzjames himself was quite unconscious of any inability to do his duty,

and for some time heard nothing of any comments. In March 1891 he was on

circuit at Exeter again with Lord Coleridge. It was thought right that

certain public remarks should be brought under his notice. He

immediately took the obviously right course. He consulted Sir Andrew

Clark, who advised resignation. Fitzjames did his last work as judge at

Bristol, March 15 to 23, and finally resigned on April 7, 1891, when he

took leave of his colleagues at an impressive meeting. The

Attorney-General, Sir R. Webster, expressed the feelings of the bar; and

the final 'God bless you all,' with which he took leave of the members

of his old profession, remains in the memory of his hearers. He was

created a baronet in recognition of his services, and received the usual

pension.

I may here mention that he was elected a corresponding member of the

'Institut de France' in 1888 ('Academie des Sciences morales et

politiques'). The election, I believe, was due to M. de Franqueville,

the distinguished French jurist, with whom he had formed a warm

friendship in later years. He also received the honorary degree of LL.D.

from the University of Edinburgh in 1884, and was an honorary member of

the American Academy of Arts and Sciences.

After his retirement his health fluctuated. He visited Froude at

Salcombe in June, and was able to enjoy sailing. He afterwards went to

Homburg, and in the autumn was able to walk as well as drive about

Anaverna. He wrote an article or two for the 'Nineteenth Century,' and

he afterwards amused himself by collecting the articles of which I have

already spoken, published in three small volumes (in 1892) as 'Horae

Sabbaticae.' On the whole, however, he was gradually declining. The

intellect was becoming eclipsed, and he was less and less able to leave

his chair. Early in 1893 he became finally unable to walk up and down

stairs, and in the summer it was decided not to go to Anaverna. He was

moved to Red House Park, Ipswich, in May, where he remained to the end.

It had the advantage of a pleasant garden, which he could enjoy during

fine weather. During this period he still preserved his love of books,

and was constantly either reading or listening to readers. His friends

felt painfully that he was no longer quite with them in mind. Yet it was

touching to notice how scrupulously he tried, even when the effort had

become painful, to receive visitors with all due courtesy, and still

more to observe how his face lighted up with a tender smile whenever he

received some little attention from those dearest to him. It is needless

to say that of such loving care there was no lack. I shall only mention

one trifling incident, which concerned me personally. I had been to see

him at Ipswich. He was chiefly employed with a book, and though he said

a few words, I felt doubtful whether he fully recognised my presence. I

was just stepping into a carriage on my departure when I became aware

that he was following me to the door leaning upon his wife's arm. Once

more his face was beaming with the old hearty affection, and once more

he grasped my hand with the old characteristic vigour, and begged me to

give his love to my wife. It was our last greeting.

I can say nothing of the intercourse with those still nearer to him. He

had no serious suffering. He became weaker and died peacefully at

Ipswich, March 11, 1894. He was buried at Kensal Green in the presence

of a few friends, and laid by the side of his father and mother and the

four children who had gone before him. One other grave is close by, the

grave of one not allied to him by blood, but whom he loved with a

brotherly affection that shall never be forgotten by one survivor.

I have now told my story, and I leave reflections mainly to my readers.

One thing I shall venture to say. In writing these pages I have

occasionally felt regret--regret that so much power should have been

used so lavishly as to disappoint the hopes of a long life, for I always

looked to my brother as to a tower of strength, calculated to outlast

such comparative weaklings as myself; and regret, too, that so much

power was expended upon comparatively ephemeral objects or upon aims

destined to fail of complete fulfilment. Such regrets enable me to

understand why the work which he did in India made so deep an impression

upon his mind. And yet I feel that the regrets are unworthy of him. The

cases are rare indeed where a man's abilities have been directed

precisely into the right channel from early life. Almost all men have to

acknowledge that they have spent a great portion of their energy upon

tasks which have led to nothing, or led only to experience of failure. A

man who has succeeded in giving clear utterance to the thoughts that

were in him need care comparatively little whether they have been

concentrated in some great book or diffused through a number of

miscellaneous articles. Fitzjames's various labours came to a focus in

his labours upon the Criminal Law. During his short stay in India he

succeeded in actually achieving a great work; and I hope that, if his

hopes of achieving similar results in England were disappointed, he will

have successors who will find some help from the foundations which he

laid. But, as he said of his father, the opportunity of directing your

powers vigorously and in a worthy direction is its own reward. If to

have taken advantage of such opportunities be the true test of success,

whatever opinions may be held of you by others, and to whatever account

they may turn your labours, Fitzjames may be called eminently

successful. It often appears to me, indeed, that a man does good less by

his writings or by the mark which he may make upon public affairs than

by simply being himself. The impression made upon his contemporaries by

a man of strong and noble character is something which cannot be

precisely estimated, but which we often feel to be invaluable. The best

justification of biography in general is that it may strengthen and

diffuse that impression. That, at any rate, is the spirit in which I

have written this book. I have sought to show my brother as he was.

Little as he cared for popularity (and, indeed, he often rather rejected

than courted it), I hope that there will not be wanting readers who will

be attracted even by an indifference which is never too common. And

there is one thing which, as I venture to believe, no one can deny, or

deny to be worth considering. Whatever may be thought of Fitzjames's

judgments of men and things, it must be granted that he may be called,

in the emphatical and lofty sense of the word, a true man. In the dark

and bewildering game of life he played his part with unfaltering courage

and magnanimity. He was a man not only in masculine vigour of mind and

body, but in the masculine strength of affection, which was animated and

directed to work by strenuous moral convictions. If I have failed to

show that, I have made a failure indeed; but I hope that I cannot have

altogether failed to produce some likeness of a character so strongly

marked and so well known to me from my earliest infancy.

FOOTNOTES:

[Footnote 176: _History of Criminal Law_, i. 418.]

[Footnote 177: _History of Criminal Law_, i. 265-272.]

[Footnote 178: Fitzjames had given a slighter account of this curious

subject in the _Contemporary Review_ for February 1871.]

[Footnote 179: _History of Criminal Law_, ii. 81-3.]

[Footnote 180: _Ibid._ iii. 84.]

[Footnote 181: _History of Criminal Law_, ii. 175.]

[Footnote 182: _History of Criminal Law_, i. 442.]

[Footnote 183: Fitzjames discussed this question for the last time in

the _Nineteenth Century_ for October 1886. Recent changes had, he says,

made the law hopelessly inconsistent; and he points out certain

difficulties, though generally adhering to the view given above.]

[Footnote 184: _History of Criminal Law_, iii. 367.]

[Footnote 185: _Nuncomar and Impey_, i. 1.]

[Footnote 186: _Nuncomar and Impey_, ii. 114.]

[Footnote 187: _Ibid._ ii. 247.]

[Footnote 188: _Nuncomar and Impey_, i. 7.]

[Footnote 189: _History of Criminal Law_, i. 456.]

[Footnote 190: Fitzjames kept a journal for a short time at this period,

which gives the facts, also noticed in his letters.]

[Footnote 191: _Law Reports, 6 Queen's Bench Division_, pp. 244-263.]

[Footnote 192: _Law Reports, 12 Queen's Bench Division_, pp. 247-256.]

[Footnote 193: The verses were published in the _St. James's Gazette_ of

Dec. 2, 1881.]

[Footnote 194: His letters appeared in the _Times_ of March 1 and 2 and

June 9, 1883, and were afterwards collected.]

[Footnote 195: His letters appeared on January 1, 4, and 21, and on

April 29 and May 1, 1886.]

[Footnote 196: February 11, 1888; reprinted in the biographical notice

by Sir M. E. Grant Duff, prefixed to the collection of Maine's speeches

and minutes in 1892.]

[Footnote 197: I have used a notice in the _Cambridge Review_ of

February 11, 1892, and some notes by Mr. Oscar Browning. I have also to

thank several of James's friends for communications; especially Mr.

Cornish, now Vice-Provost of Eton College, Mr. Lowry, now an Eton

master, Mr. Reginald J. Smith, Q.C., and Mr. H. F. Wilson, of Lincoln's

Inn.]

[Footnote 198: I deeply regret to say that Professor Goodhart died while

these pages were going through the press. The schoolboy affection had

been maintained to the end; and Goodhart was one of James's most

intimate and valued friends.]

[Footnote 199: Mr. Lowry mentions some other ephemeral writings, the

_Salt Hill Papers_ and the _Sugar Loaf Papers_.]

[Footnote 200: The last was published at the end of 1884.]

[Footnote 201: A bibliographical account of the changes in these

editions is given in the fourth.]

[Footnote 202: A 'Parodist's Apology,' added in the later edition of the

_Lapsus_.]

BIBLOGRAPHICAL NOTE

The independent books published by Sir J. F. Stephen were as follows:--

1. _Essays by a Barrister_ (reprinted from the _Saturday Review_).

London, 1862, Smith, Elder & Co. 1 vol. 8vo. (Anonymous.) Pp. 335.

2. _Defence of the Rev. Rowland Williams, D.D., in the Arches Court

of Canterbury_, by James Fitzjames Stephen, M.A., of the Inner

Temple, barrister-at-law, recorder of Newark-on-Trent. London,

1862, Smith, Elder & Co. 1 vol. 8vo. Pp. xlviii. 335.

3. _A General View of the Criminal Law of England_, by James

Fitzjames Stephen, M.A., of the Inner Temple, barrister-at-law,

recorder of Newark-on-Trent. London and Cambridge, 1863, Macmillan

& Co. 1 vol. 8vo. Pp. xii. 499.

4. _Liberty, Equality, Fraternity_, by James Fitzjames Stephen,

Q.C. London, 1873, Smith, Elder & Co. Pp. vi. 350. Second edition

of the same (with new preface and additional notes), 1874. Pp.

xlix. 370.

5. _A Digest of the Law of Evidence_, by James Fitzjames Stephen,

Q.C. London, 1874, Macmillan & Co. Pp. xlii. 198. Reprinted with

slight alterations, September 1876, December 1876; with many

alterations, 1877. Second edition, 1881. Third, 1887. Fourth, 1893.

6. _A Digest of the Criminal Law_ (_Crimes and Punishments_), by

Sir James Fitzjames Stephen, K.C.S.I., Q.C. London, 1877, Macmillan

& Co. Pp. lxxxii. 412. Second edition, 1879. Third, 1883. Fourth,

1887. Fifth, 1894.

7. _A Digest of the Law of Criminal Procedure in Indictable

Offences_, by Sir James Fitzjames Stephen, K.C.S.I., D.C.L., a

judge of the High Court of Justice, Queen's Bench Division, and

Herbert Stephen, Esq., LL.M., of the Inner Temple,

barrister-at-law. London, Macmillan &Co. 1883. Pp. xvi. 230.

8. _A History of the Criminal Law of England_, by Sir James

Fitzjames Stephen, K.C.S.I., D.C.L., a judge of the High Court of

Justice, Queen's Bench Division. London, 1883, Macmillan & Co. 3

vols. 8vo. Pp. xviii. 576; 497; 592.

9. _The Story of Nuncomar and the Impeachment of Sir Elijah Impey_,

by Sir James Fitzjames Stephen, K.C.S.I., one of the judges of the

High Court of Justice, Queen's Bench Division. London, 1885,

Macmillan & Co. 2 vols. 8vo. Pp. 267, 336.

10. _A General View of the Criminal Law of England_, by Sir James

Fitzjames Stephen, K.C.S.I., D.C.L., Honorary Fellow of Trinity

College, Cambridge, a corresponding member of the French Institute,

a judge of the Supreme Court, Queen's Bench Division. (Second

edition.) London, 1890, Macmillan & Co. Pp. xii. 398.

11. _Horae Sabbaticae, Reprint of Articles contributed to the

Saturday Review_, by Sir James Fitzjames Stephen, Bart., K.C.S.I.

London, 1892, Macmillan & Co. First, second and third series. Pp.

347, 417, 376.

The following is a list of the chief contributions to quarterly and

monthly periodicals.

_Cambridge Essays_

1. Oct. 1855. Relation of Novels to Life.

2. July 1857. Characteristics of English Criminal Law.

_National Review_

1. April 1856. Cambridge Reform.

2. Nov. 1864. The Public Schools Commission.

_Edinburgh Review_

1. July 1856. Cavallier.

2. July 1857. Novelists.

3. Jan. 1858. Tom Brown's Schooldays.

4. April 1858. Buckle's 'Civilisation.'

5. Oct. 1858. Guy Livingstone.

6. April 1859. Hodson.

7. Oct. 1861. Jurisprudence.

_Cornhill Magazine_

1. Sept. 1860. Luxury.

2. Dec. 1860. Criminal Law and the Detection of Crime.

3. April 1861. The Morality of Advocacy.

4. May 1861. Dignity.

5. June and July 1861. The Study of History.

6. Aug. 1861. The Dissolution of the Union.

7. Sept. 1861. Keeping up Appearances.

8. Nov. 1861. National Character.

9. Dec. 1861. Competitive Examinations.

10. Jan. 1862. Liberalism.

11. Feb. 1862. Commissions of Lunacy.

12. March 1862. Gentlemen.

13. May 1862. Superstition.

14. June 1862. Courts Martial.

15. July 1862. Journalism.

16. Sept. 1862. The State Trials.

17. Nov. 1862. Circumstantial Evidence.

18. Jan. 1863. Society.

19. Feb. 1863. The Punishment of Convicts.

20. April 1863. Oaths.

21. June 1863. Spiritualism.

22. July 1863. Commonplaces on England.

23. July 1863. Professional Etiquette.

24. Sept. 1863. Anti-respectability.

25. Oct. 1863. A Letter to a Saturday Reviewer.

26. Dec. 1863. Marriage Settlements.

27. Jan. 1864. Money and Money's Worth.

28. June 1864. The Church as a Profession.

29. July 1864. Sentimentalism.

30. Dec. 1864. The Bars of France and England.

31. Jan. 1867. The Law of Libel.

_Fraser's Magazine_

(A few earlier articles had appeared in this magazine.)

1. Dec. 1863. Women and Scepticism.

2. Jan. 1864. Japan.

3. Feb. 1864. Theodore Parker.

4. April 1864. Mr. Thackeray.

5. May 1864. The Privy Council.

6. June 1864. Capital Punishment.

7. Sept. 1864. Newman's 'Apologia.'

8. Nov. 1864. Dr. Pusey and the Court of Appeal.

9. Dec. 1864. Kaye's 'Indian Mutiny.'

10. Feb. 1865. Law of the Church of England.

11. March 1965. Merivale's 'Conversion of the Roman Empire.'

12. June and July 1865. English Ultramontanism.

13. Nov. 1865. Mr. Lecky's 'Rationalism.'

14. Feb. 1866. Capital Punishment.

15. June and July 1866. 'Ecce Homo.'

16. Nov. 1866. Voltaire.

17. Nov. 1869. Religious Controversy.

18. Jan. 1872. Certitude in Religious Assent.

19. July 1873. Froissart's 'Chronicles.'

_Fortnightly Review_

1. Dec. 1872. Codification in India and England.

2. March 1877. A Penal Code.

3. March 1884. Blasphemy and Seditious Libel.

_Contemporary Review_

1. Dec. 1873 and March 1874. Parliamentary Government.

2. March 1874. Caesarism and Ultramontanism.

3. May 1874. Caesarism and Ultramontanism: a Rejoinder.

4. Dec. 1874. Necessary Truth.

5. Feb. 1875. The Law of England as to the Expression of Religious

Opinion.

_Nineteenth Century_

1. April 1877. Mr. Gladstone and Sir G. C. Lewis on Authority.

2. May 1877. Morality and Religious Belief.

3. Sept. 1877. Improvement of the Law by Private Enterprise.

4. Dec. 1877. Suggestions as to the Reform of the Criminal Law.

5. Jan. 1880. The Criminal Code (1879).

6. Jan. 1881. The High Court of Justice.

7. April 1882. A Sketch of the Criminal Law.

8. Oct. 1883. India; the Foundations of Government.

9. June 1884. The Unknowable and the Unknown.

10. May 1885. Variations in the Punishment of Crime.

11. Oct. 1886. Prisoners as Witnesses.

12. Dec. 1886. The Suppression of Boycotting.

13. Oct. 1887. Mr. Mivart's 'Modern Catholicism.'

14. Jan. 1888. A Rejoinder to Mr. Mivart.

15. April and May 1888. Max Mueller's 'Science of Thought.'