Chapter III

THE BAR AND JOURNALISM

I. INTRODUCTORY

I have traced at some length the early development of my brother's mind and character. Henceforward I shall have to describe rather the manifestation than the modification of his qualities. He had reached full maturity, although he had still much to learn in the art of turning his abilities to account. His 'indolence' and 'self-indulgence,' if they had ever existed, had disappeared completely and for ever. His life henceforward was of the most strenuous. He had become a strong man—strong with that peculiar combination of mental and moral force which reveals itself in masculine common sense. His friends not unfrequently compared him to Dr. Johnson, and, much as the two men differed in some ways, there was a real ground for the comparison. Fitzjames might be called pre-eminently a 'moralist,' in the old-fashioned sense in which that term is applied to Johnson. He was profoundly interested, that is, in the great problems of life and conduct. His views were, in this sense at least, original—that they were the fruit of his own experience, and of independent reflection. Most of us are so much the product of our surroundings that we accept without a question the ordinary formulæ which we yet hold so lightly that the principles which nominally govern serve only to excuse our spontaneous instincts. The stronger nature comes into collision with the world, disputes even the most current commonplaces, and so becomes conscious of its own idiosyncrasies, and accepts only what is actually forced upon it by stress of facts and hard logic. The process gives to the doctrines which, with others, represent nothing but phrases, something of the freshness and vividness of personal discoveries. Probably ninety-nine men in a hundred assume without conscious inconsistency the validity both of the moral code propounded in the Sermon on the Mount, and of the code which regulates the actual struggle for life. They profess to be at once gentlemen and Christians, and when the two codes come into conflict, take the one which happens to sanction their wishes. They do not even observe that there is any conflict. Fitzjames could not take things so lightly. Even in his infancy he had argued the first principles of ethics, and worked out his conclusions by conflicts with schoolboy bullies. It is intelligible, therefore, that, as Mr. Davies reports, the Sermon on the Mount should be his great difficulty in accepting Christianity. Its spirit might be, in a sense, beautiful; but it would not fit the facts of life. So, he observes, in his autobiographical fragment, that one of his difficulties was his want of sympathy for the kind of personal enthusiasm with which his father would speak of Jesus Christ. He tried hard to cultivate the same feelings, but could not do so with perfect sincerity.

A man with such distinct and vivid convictions in the place of mere conventional formulæ was naturally minded to utter them. He was constantly provoked by the popular acceptance of what appeared to him shallow and insincere theories, and desired to expose the prevailing errors. But the 'little preacher' of three years old had discovered at one and twenty that the pulpit of the ordinary kind was not congenial to him. His force of mind did not facilitate a quick and instinctive appreciation of other people's sentiments. When he came into contact with a man whose impressions of the world were opposed to his own, he was inclined to abandon even the attempt to account for the phenomenon. A man incapable of seeing things in the proper light was hardly worth considering at all. Fitzjames was therefore not sympathetic in the sense of having an imagination ready to place him at other men's point of view. In another sense his sympathies were exceedingly powerful. No man had stronger or more lasting affections. Once attached to a man, he believed in him with extraordinary tenacity and would defend him uncompromisingly through thick and thin. If, like Johnson, he was a little too contemptuous of the sufferings of the over-sensitive, and put them down to mere affectation or feeblemindedness, he could sympathise most strongly with any of the serious sorrows and anxieties of those whom he loved, and was easily roused to stern indignation where he saw sorrow caused by injustice. I shall mention here one instance, to which, for obvious reasons, I can only refer obscurely; though it occupied him at intervals during many years. Shortly after being called to the bar he had agreed to take the place of a friend as trustee for a lady, to whom he was then personally unknown. A year or two later he discovered that she and her husband were the objects of a strange persecution from a man in a respectable position who conceived himself to have a certain hold over them. Fitzjames's first action was to write a letter to the persecutor expressing in the most forcible English the opinion that the gentleman's proper position was not among the respectable but at one of her Majesty's penal settlements. His opinion was carefully justified by a legal statement of the facts upon which it rested, and the effect was like the discharge of the broadside of an old ship of the line upon a hostile frigate. The persecutor was silenced at once and for life. Fitzjames, meanwhile, found that the money affairs of the pair whose champion he had become were deeply embarrassed. He took measures, which were ultimately successful, for extricating them from their difficulties; and until the lady's death, which took place only a year or two before his own, was her unwearied counsellor and protector in many subsequent difficulties. Though I can give no details, I may add that he was repaid by the warm gratitude of the persons concerned, and certainly never grudged the thought and labour which he had bestowed upon the case.

Fitzjames having made up his mind that he was a 'lawyer by nature,' had become a lawyer by profession. Yet the circumstances of his career, as well as his own disposition, prevented him from being absorbed in professional duties. For the fifteen years which succeeded his call to the bar he was in fact following two professions; he was at once a barrister and a very active journalist. This causes some difficulty to his biographer. My account of his literary career will have to occupy the foreground, partly because the literary story bears most directly and clearly the impress of his character, and partly because, as will be seen, it was more continuous. I must, however, warn my readers against a possible illusion of perspective. To Fitzjames himself the legal career always represented the substantive, and the literary career the adjective. Circumstances made journalism highly convenient, but his literary ambition was always to be auxiliary to his legal ambition. It would, of course, have been injurious to his prospects at the bar had it been supposed that the case was inverted; and as a matter of fact his eyes were always turned to the summit of that long hill of difficulty which has to be painfully climbed by every barrister not helped by special interest or good fortune. This much must be clearly understood, but I must also notice two qualifications. In the first place, though he became a journalist for convenience, he was in some sense too a journalist by nature. He found, that is, in the press a channel for a great many of the reflections which were constantly filling his mind and demanding some outlet. He wrote for money, and without the least affectation of indifference to money; but the occupation enabled him also to gratify a spontaneous and powerful impulse. And, in the next place, professional success at the bar was in his mind always itself connected with certain literary projects. Almost from the first he was revolving schemes for a great book, or rather for a variety of books. The precise scheme changed from time to time; but the subject of these books is always to be somewhere in the province which is more or less common to law and ethics. Sometimes he is inclined to the more purely technical side, but always with some reference to the moral basis of law; and sometimes he leans more to philosophical and theological problems, but always with some reference to his professional experience and to legal applications. So, for example, he expresses a desire (in a letter written, alas! after the power of executing such schemes had disappeared) to write upon the theory of evidence; but he points out that the same principles which underlie the English laws of evidence are also applicable to innumerable questions belonging to religious, philosophical, and scientific inquiries. Now the position of a judge or an eminent lawyer appeared to him from the first to be desirable for other reasons indeed, but also for the reason that it would enable him to gain experience and to speak with authority. At moments he had thoughts of abandoning law for literature; although the thoughts disappeared as soon as his professional prospects became brighter. His ideal was always such a position as would enable him to make an impression upon the opinions of his countrymen in that region where legal and ethical speculation are both at home.

II. FIRST YEARS AT THE BAR

I will begin by some general remarks upon his legal career, which will thus be understood as underlying his literary career. Fitzjames was called to the bar of the Inner Temple on January 26, 1854. He had his first brief soon afterwards at the Central Criminal Court, where twenty-five years later he also made his first appearance as a judge. In the same year he joined the Midland Circuit. He had no legal connections upon that or any other circuit. His choice was determined by the advice of Kenneth Macaulay, then leader of the Midland Circuit. He afterwards referred to this as one of the few cases in which good advice had really been of some use. In a letter written in July 1855 he observes that the Midland is the nearest approach to the old circuits as they were before the days of railways. It was so far from London that the barristers had to go their rounds regularly between the different towns instead of coming down for the day. He describes the party who were thus brought together twice a year, gossiping and arguing all day, with plenty of squabbling and of 'rough joking and noisy high spirits' among the idler, that is, much the larger part. He admits that the routine is rather wearisome: the same judgments and speeches seem to repeat themselves 'like dreams in a fever,' and 'droves of wretched over-driven heavy people come up from the prison into a kind of churchwardens' pew,' when the same story is repeated over and over again. And yet he is profoundly interested. Matters turn up which 'seem to me infinitely more interesting than the most interesting play or novel,' and you get strange glimpses of the ways of thinking and living among classes otherwise unknown to you. These criminal courts, he says in another letter, are a 'never-ending source of interest and picturesqueness for me. The little kind of meat-safe door through which the prisoners are called up, and the attendant demon of a gaoler who summons them up from the vasty deep and sends them back again to the vasty deep for terms of from one week to six years, have a sort of mysterious attraction.'

Mr. Franklin Lushington, who was my brother's contemporary on the circuit and ever afterwards an intimate friend, has kindly given me his impressions of this period. It would have been difficult, he says, to find a circuit 'on which the first steps of the path that opens on general eminence in the profession were slower to climb than on the Midland.' It was a small circuit, 'attended by some seventy or eighty barristers and divided into two or three independent and incompatible sets of Quarter Sessions, among which after a year or so of tentative experience it was necessary to choose one set and stand by it. Fitzjames and I both chose the round of the Lincolnshire, Nottinghamshire, and Derbyshire sessions; which involved a good deal of travelling and knocking about in some out-of-the-way country districts, where the sessions bar is necessarily thrown into circumstances of great intimacy. Even when a sessions or assize reputation was gained, it was and remained intensely local. The intricate points relative to settlements and poor-law administration, which had provided numerous appeals to the higher courts in a previous generation, had dwindled gradually to nothing. Even the most remarkable success, slowly and painfully won in one county, might easily fail to produce an effect in the next, or to give any occasion for passing through the thickset hedge which parts provincial from metropolitan notoriety. The most popular and admired advocate in the Lincolnshire courts for many years was our dear friend F. Flowers, afterwards a police magistrate, one of the wittiest, most ingenious, and most eloquent of the bar. Though year after year he held every Lincolnshire jury in the hollow of his hand, and frequently rose to a strain of powerful and passionate oratory which carried away himself and his hearers—not Lincolnshire folk only—in irresistible sympathy with his cause, Flowers remained to his last day on circuit utterly unknown and untried in the adjacent shires of Derby and Nottingham.'

A circuit bar, adds Mr. Lushington, 'may be roughly divided into three classes: those who are determined to make themselves heard; those who wish to be heard if God calls; and those who without objecting to be heard wish to have their pastime whether they are heard or not. Fitzjames was in the first category, and from the first did his utmost to succeed, always in the most legitimate way.' No attorney, looking at the rows of wigs in the back benches, could fail to recognise in him a man who would give his whole mind to the task before him. 'It was natural to him to look the industrious apprentice that he really was; always craving for work of all kinds and ready at a moment's notice to turn from one task to another. I used to notice him at one moment busy writing an article in complete abstraction and at the next devouring at full speed the contents of a brief just put into his hand, and ready directly to argue the case as if it had been in his hand all day.'

Fitzjames not long afterwards expressed his own judgment of the society of which he had become a member. The English bar, he says,[63] 'is exactly like a great public school, the boys of which have grown older and have exchanged boyish for manly objects. There is just the same rough familiarity, the same general ardour of character, the same kind of unwritten code of morals and manners, the same kind of public opinion expressed in exactly the same blunt, unmistakable manner.' It would astonish outsiders if they could hear the remarks sometimes addressed by the British barrister to his learned brother—especially on circuit. The bar, he concludes, 'are a robust, hard-headed, and rather hard-handed set of men, with an imperious, audacious, combative turn of mind,' sometimes, though rarely, capable of becoming eloquent. Their learning is 'multifarious, ill-digested and ill-arranged, but collected with wonderful patience and labour, with a close exactness and severity of logic, unequalled anywhere else, and with a most sagacious adaptation to the practical business of life.'

Fitzjames's position in this bigger public school had at any rate one advantage over his old Etonian days. There was no general prejudice against him to be encountered; and in the intellectual 'rough and tumble' which replaced the old school contests his force of mind was respected by everyone and very warmly appreciated by a chosen few. Among his closest intimates were Mr. Lushington and his old schoolfellow Mr. Arthur Coleridge, who became Clerk of Assize upon the circuit. At starting he had also the society of his friend Grant Duff. They walked together in the summer of 1855, and visited the Trappist Monastery in Charnwood Forest. There they talked to a shaven monk in his 'dreary white flannel dress,' bound with a black strap. They moralised as they returned, and Fitzjames thought on the whole that his own life was wholesomer than the monastic. He hopes, however, that the monk and his companions may 'come right,' as 'no doubt they will if they are honest and true.' 'I suppose one may say that God is in convents and churches as well as in law courts or chambers—though not to my eyes so palpably.'

Sir M. Grant Duff left the circuit after a year or two; but Fitzjames found a few other congenial companions with whom he could occasionally walk and often argue to his heart's content. Among his best friends was Kenneth Macaulay, who became a leader on the circuit, and who did his best to introduce Fitzjames to practice. Mr. Arthur Coleridge, too, was able to suggest to the judges that Fitzjames should be appointed to defend prisoners not provided with counsel. This led by degrees to his becoming well known in the Crown Court, although civil business was slow in presenting itself. Several of the judges took early notice of him. In 1856 he has some intercourse with Lord Campbell, then Chief Justice, and with Chief Baron Pollock, both of them friends of his father. He was 'overpowered with admiration' at Campbell's appearance. Campbell was 'thickset as a navvy, as hard as nails,' still full of vigour at the age of seventy-six, about the best judge on the bench now, and looking fit for ten or twelve years' more of work.[64] Pollock was a fine lively old man, thin as a threadpaper, straight as a ramrod, and full of indomitable vivacity. The judges, however, who formed the highest opinion of him and gave him the most encouragement were Lord Bramwell and Willes.

In 1856 he observes that he was about to take a walk with Alfred Wills of the 'High Alps.' This was the present Mr. Justice Wills; who has also been kind enough to give me some recollections which are to the purpose in this place. Wills was called to the bar in 1851 and joined the Midland Circuit, but attended a different set of quarter sessions. He saw a good deal of Fitzjames, however, at the assizes; and though not especially intimate, they always maintained very friendly relations. The impression made upon Wills in these early years was that Fitzjames was a solitary and rather unsocial person. He was divided from his fellows, as he had been divided from his companions at school and college, by his absorption in the speculations which interested him so profoundly. 'He was much more learned, much better read, and had a much more massive mind than most of us, and our ways and talks must have seemed petty and trivial to him.' Though there were 'some well-read men and good scholars among us, even they had little taste for the ponderous reading in which Fitzjames delighted.' Wills remembers his bringing Hobbes' 'Leviathan' with him, and recreating himself with studying it after his day's work. To such studies I shall have to refer presently, and I will only say, parenthetically, that if Mr. Justice Wills would read Hobbes, he would find, though he tells me that he dislikes metaphysics, that the old philosopher is not half so repulsive as he looks. Still, a constant absorption in these solid works no doubt gave to his associates the impression that Fitzjames lived in a different world from theirs. He generally took his walks by himself, Coleridge being the most frequent interrupter of his solitude. He would be met pounding along steadily, carrying, often twirling, a 'very big stick,' which now and then came down with a blow—upon the knuckles, I take it, of some imaginary blockhead on the other side—muttering to himself, 'immersed in thought and with a fierce expression of concentrated study.' He did not often come to mess, and when he did found some things of which he did not approve. Barristers, it appears, are still capable of indulging in such tastes as were once gratified by the game of 'High Jinks,' celebrated in 'Guy Mannering.' The Circuit Court was the scene of a good deal of buffoonery. It was customary to appoint a 'crier'; and Fitzjames, 'to his infinite disgust, was elected on account of his powerful voice. He stood it once or twice, but at last broke out in a real fury, and declared he would never come to the Circuit Court again, calling it by very strong names. If he had been a less powerful man I am sure that there would have been a fight; but no one cared to tackle that stalwart frame, and I am not sure that the assailant would have come out of the fray alive if he had.' The crisis of this warfare appears to have happened in 1864, when Yorkshire was added to the Midland Circuit, and an infusion of barristers from the Northern Circuit consequently took place. It seems that the manners and customs of the northerners were decidedly less civilised than those of their brethren. A hard fight had to be fought before they could be raised to the desired level. In 1867 I find that Fitzjames proposed the abolition of the Circuit Court. He was defeated by twenty votes to fifteen; and marvels at the queer bit of conservatism cropping up in an unexpected place. In spite of these encounters, Fitzjames not only formed some very warm friendships on circuit, but enjoyed many of the social meetings, and often recurred to them in later years. He only despised tomfoolery more emphatically than his neighbours. Nobody, indeed, could be a more inconvenient presence where breaches of decency or good manners were to be apprehended. I vividly remember an occasion upon which he was one of a little party of young men on a walking tour. A letter read out by one of them had the phrase, 'What a pity about Mrs. A.!' Someone suggested a conjectural explanation not favourable to Mrs. A.'s character. He immediately came in for a stern denunciation from Fitzjames which reduced us all to awestruck silence, and, I hope, gave the speaker an unforgetable lesson as to the duty of not speaking lightly in matters affecting female reputation. He collapsed; and I do not recollect that he ventured any comment upon a letter of the next morning which proved his conjecture to be correct. The principle was the same.

These characteristics, as I gather both from Mr. Justice Wills and from Mr. Lushington, caused Fitzjames to be the object rather of respect than of general popularity. His friends could not fail to recognise the depth of his real kindness of heart. Mr. Justice Wills refers to one little incident of which my brother often spoke. Fitzjames visited him at the 'Eagle's Nest,' in 1862, and there found him engaged in nursing Auguste Balmat, the famous guide, who was dying of typhoid fever. The natives were alarmed, and the whole labour of nursing fell upon Mr. and Mrs. Wills. Fitzjames, on his arrival, relieved them so far as he could, and enabled them to get some nights' sleep. I remember his description of himself, sitting up by the dying man, with a volume of 'Pickwick' and a vessel of holy water, and primed with some pious sentences to be repeated if the last agony should come on. It was a piece of grim tragedy with a touch of the grotesque which impressed him greatly. 'I never knew anyone,' says Mr. Justice Wills, 'to whom I should have gone, if I wanted help, with more certainty of getting it.' When Fitzjames was on the bench, he adds, and he had been himself disappointed of reaching the same position under annoying circumstances, he had to appear in a patent case before his friend. Fitzjames came down to look at a model, and Wills said, 'Your Lordship will see,' &c. 'He got hold of the hand next his own, gave me a squeeze which I did not forget in a hurry, and whispered, "If you ever call me 'my lordship' again, I shall say something!"' That hand-grip, indeed, as Wills remarks, was eminently characteristic. It was like the squeeze of a vice, and often conveyed the intimation of a feeling which shrank from verbal expression.

It is plain enough that a man of such character would not find some difficulties smoothed for him. He could not easily learn the lesson of 'suffering fools gladly.' He formed pretty strong views about a man and could express them frankly. The kind of person whom Carlyle called a windbag, and to whom he applied equally vigorous epithets, was especially obnoxious to him, however dexterous might be such a man's manipulation of difficult arguments. His talent, too, scarcely lent itself to the art of indirect intimations of his opinions. He remarks himself, in one of his letters, that he is about as clever at giving hints as the elder Osborne in 'Vanity Fair'; of whom Thackeray says that he would give what he called a 'hint' to a footman to leave his service by kicking the man downstairs. And, therefore, I suspect that when Fitzjames considered someone—even a possible client—to be a fool or a humbug, his views might be less concealed than prudence would have dictated. 'When once he had an opportunity of showing his capacities,' says Mr. Lushington, 'the most critical solicitor could not fail to be satisfied of his vigour and perseverance; his quick comprehension of, and his close attention to detail; and his gift in speaking of clear common-sense and forcible expression, free from wearisome redundancy or the suggestion of an irony that might strike above the heads of the jury. He gained the confidence of clients of all sorts—some of curious, impulsive, and not over-strict character, who might, perhaps, have landed a weaker or less rigidly high-principled advocate in serious blunders; and I do not think that he ever lost a client whom he had once gained.' But the first step was not easy. His solitary ways, his indifference to the lighter pursuits of his companions, and his frequent absorption in other studies, made him slow to form connections and prevented him from acquiring early, if he ever fully acquired, the practical instinct which qualifies a man for the ordinary walk of law courts. When, says Mr. Justice Wills, 'he got you by yourself in a corner—with no opportunity of dancing round him—in a single combat of stroke for stroke, real business, conditions defined and mastered, he was a most formidable antagonist, mercilessly logical, severely powerful, with the hand of a giant.' But he was, says the same critic, rather too logical for the common tricks of the trade, which are learnt by a long and persistent handling of ordinary business. He did not understand what would 'go down,' and what was of 'such a character that people would drive a coach and six through precedents and everything else in order to get rid of it.' He was irritated by an appeal to practical consequences from what he considered to be established principles. Then, too, his massive intellect made him wanting in pliability. 'He could not change front in presence of the enemy'; and rather despised the adaptations by which clever lawyers succeed in introducing new law under a pretence of applying old precedents. As I have already said, he was disgusted with the mere technicalities of the law, and the conversion of what ought to be a logical apparatus for the discovery of truth into an artificial system of elaborate and superfluous formalities. His great ambition was (in his favourite expression) to 'boil down' the law into a few broad common-sense principles. He was, therefore, not well qualified for some branches of legal practice, and inclined to regard skill of the technical kind with suspicion, if not with actual dislike. Upon this, however, I shall have to dwell hereafter.

Meanwhile, he was deeply interested in the criminal cases, which were constantly presenting ethical problems, and affording strange glimpses into the dark side of human nature. Such crimes showed the crude, brutal passions, which lie beneath the decent surface of modern society, and are fascinating to the student of human nature. He often speaks of the strangely romantic interest of the incidents brought to light in the 'State Trials'; and in these early days he studied some of the famous cases, such as those of Palmer and Dove, with a professional as well as a literary interest. In later life he avoided such stories; but at this period he occasionally made a text of them for newspaper articles, and was, perhaps, tempted to adopt theories of the case too rapidly. This was thought to be the case in regard to one Bacon, who was tried in Lincoln in the summer of 1857. The case was one to which Fitzjames certainly attached great importance, and I will briefly mention it before passing to his literary career.

Bacon and his wife were tried at London in the spring of 1857 for the murder of their two young children. It was sufficiently proved upon that occasion that Mrs. Bacon (who had already been in a madhouse) committed the crime in a fit of insanity. Bacon, however, had endeavoured to manufacture some evidence in order to give countenance to a theory that the murder had been committed by housebreakers during his absence. He thus incurred suspicion, and was placed upon trial with his wife. It also came out that he had been tried (and acquitted) a year before for setting fire to his own house, and reasons appeared for suspecting him of an attempt to poison his mother at Stamford three years previously. Upon these facts Fitzjames wrote an article in the 'Saturday Review.'[65] He declared that the crime was as interesting, except for the want of dignity of the actors, as the events which gave the plot of some of the tragedies of Æschylus. It reminded him, too, of the terrible story of 'Jane Eyre.' For we had to suppose either that Bacon suffered by his marriage to a mad woman who had poisoned his mother, burnt his house, and cut his children's throats; or else that the wife's last outbreak had been the incidental cause of the discovery of his own previous crimes. In the last case we had an instance of that 'retributive vengeance' which, though it cannot be 'reduced to a very logical form, speaks in tones of thunder to the imaginations of mankind.'

The case came, as it happened, to the Midland Circuit. Bacon was tried in Lincoln on July 25 for poisoning his mother. Fitzjames writes from the court, where he is waiting in the hope that he may be asked by the judge to defend the prisoner. While he writes, the request comes accordingly, and he feels that if he is successful he may make the first step to fortune. He was never cooler or calmer, he says, in his life, and has always, 'in a way of his own,' 'truly and earnestly trusted in God to help him in all the affairs of life.' He made his speech, and suggested the theory already noticed, that the poisoning might have been the act of the mad wife. The judge paid him a high compliment, but summed up for a conviction, which accordingly followed. Fitzjames himself thought, though he was not 'quite sure,' that the man was guilty. He commented upon the case in another article in the 'Saturday Review,' not, of course, to dispute the verdict, but to draw a characteristic inference. Is it not, he asks, very hard upon a poor prisoner that he should have no better means of obtaining counsel than the request of the judge at the last moment to some junior barrister? They manage these things, he thinks, better in France; though 'we have no reason to speak with disrespect of the gentleman who conducted the case.'

Whatever may have been thought of Fitzjames's judgment in this case, he gradually, as I have said, came to be regularly employed upon similar occasions. By slow degrees, too, more profitable briefs came to him; but he was in the trying position of appearing on a good many occasions which excited much interest, while more regular work still declined to present itself in corresponding proportions. Now and then a puff of wind filled his sails for the moment, but wearying calms followed, and the steady gale which propels to fortune and to the highest professional advancement would not set in with the desired regularity.

III. THE 'SATURDAY REVIEW.'

Here therefore I leave the story of his main profession to take up his work in other capacities. When he left Cambridge, the 'Morning Chronicle' was passing through a short phase of unprofitable brilliancy. It had been bought by the 'Peelites,' who are reported to have sunk as much as 200,000l. upon it. John Douglas Cook was editor, and among his contributors were Maine and others of Fitzjames's college friends. Naturally he was anxious to try his hand. He wrote several articles in the winter of 1851-2. 'The pay,' says Fitzjames, 'was very high—3l. 10s. an article, and I thought that I was going to make a fortune. I was particularly pleased, I remember, with my smartness and wit, but, alas and alas! Cook found me out and gradually ceased to put in my articles. I have seldom felt much keener disappointment, for I was ardently desirous of standing on my own legs and having in my pocket a little money of my own earning. I took heart, however, and decided to try elsewhere. I wrote one or two poor little articles in obscure places, and at last took (as already stated) to the "Christian Observer." 'I took great pains,' he says, 'with my articles, framing my style upon conveyancing and special pleading, so that it might be solid, well-connected, and logical, and enable me to get back to the Paradise of 3l. 10s. an article, from which, as I strongly suspected, my flippancy had excluded me.' 'Flippancy' was clearly not in his line. Besides the 'Christian Observer,' I find that the 'Law Magazine' took a few articles from him, but there is no trace of other writings until 1855. In that year was published the first number of 'Cambridge Essays,' which, in alliance with a series of 'Oxford Essays,' lived for a couple of years and contained some very good work. Maine became first known to the public by an article upon Roman Law contributed in 1856, and a study of Coleridge's philosophy by Professor Hort, another apostle, is one of the best extant discussions of a difficult subject. Fitzjames, in 1855, wrote a characteristic article upon 'The Relation of Novels to Life,' and in 1857 one upon 'Characteristics of English Criminal Law.' The articles roused some interest and helped to encourage him.

Meanwhile the 'Morning Chronicle' had changed hands, and its previous supporters set up the 'Saturday Review,' of which the first number appeared on November 3, 1855. John Douglas Cook, who took command of the new adventure and brought some followers from the 'Morning Chronicle,' was a remarkable man in his way. He was one of the innumerable young Scots who go out to seek their fortune abroad. He had received some appointment in India, quarrelled with his employers, and came home on foot, or partly on foot, for his narratives of this period were generally, it was thought, marked rather by imaginative fervour than by a servile adherence to historic accuracy. He found work on the 'Times,' supported Mr. Walter in an election, was taken up by the Duke of Newcastle, and was sent by him to inquire into the revenues of the Duchy of Cornwall. He then appeared as an editor, and, if he failed in the 'Morning Chronicle,' made ample amends by his guidance of the 'Saturday Review.' He was a man of no particular education, and apparently never read a book. His language and manners were such as recalled memories of the old days of Maginn and other Bohemians whose portraits are drawn in 'Pendennis.' But besides other qualities which justified the friendship and confidence of his supporters, Cook had the faculty of recognising good writing when he saw it. Newspapers have occasionally succeeded by lowering instead of raising the standard of journalism, but the 'Saturday Review' marked at the time as distinct an advance above the previous level as the old 'Edinburgh Review.' In his fifteen years' editorship of the 'Saturday Review,' Cook collected as distinguished a set of contributors as has ever been attracted to an English newspaper. Many of them became eminent in other ways. Maine and Sir W. Harcourt were, I believe, among the earliest recruits, following Cook from the 'Morning Chronicle.' Others, such as Professor Freeman, Mark Pattison, Mr. Goldwin Smith, Mr. John Morley, the late Lord Justice Bowen, and many other well-known writers, joined at different periods and with more or less regularity, but from the first the new journal was wanting neither in ability nor audacity.[66] Two of the chief contributors who became close friends of Fitzjames's enjoyed a reputation among their friends altogether out of proportion to their public recognition. The first was George Stovin Venables. He was a fellow of Jesus College, Cambridge. He had been a first-classman in the Classical Tripos of 1832, when he was placed next to W. H. Thompson, afterwards Master of Trinity. He too was an apostle and an intimate both of Tennyson and Thackeray. Indeed, the legend ran that it was his fist which, at Charterhouse School, had disfigured Thackeray's nose for life. He was tall, strikingly handsome, and of singularly dignified appearance. Though recognised as an intellectual equal by many of the ablest men of his time, he chose paths in which little general reputation could be won. He made a large income at the parliamentary bar, and amused himself by contributing regularly to the 'Saturday Review.'[67] Stories used to be current of the extraordinary facility with which he could turn out his work, and I imagine that the style of the new periodical was determined more by his writing than by that of any of his colleagues. The political utterances were supposed to be supercilious, and were certainly not marked by any fiery enthusiasm. Venables had an objection to the usual editorial 'we,' and one result was that the theories of the paper were laid down with a certain impersonal pomp, as gnomic utterances of an anonymous philosopher. I need not, however, discuss their merit. Venables wrote, if I am not mistaken, some admirable literary criticisms, and claimed to have been one of the first to recognise the poetical merits of his friend Tennyson, and, after a long interval, those of Mr. Swinburne, whom he regarded as the next legitimate heir to the throne. Venables was warmly beloved by his intimates, and Fitzjames through life frequently declared that he felt for him a kind of filial affection.

The other Saturday reviewer with whom he became specially intimate was Thomas Collett Sandars. He was a Balliol scholar and a Fellow of Oriel, and is known as an editor (1853) of Justinian's 'Institutes.' It is, I am told, a useful textbook, but the editor makes no special pretensions to original research. Sandars was at one time a professor of Constitutional Law in the Inns of Court, but he was much occupied in various financial undertakings and did little to make himself known to the outside world. He was a man, however, of great literary taste, and overflowing with humorous and delightful conversation. He survived my brother by a few months only, and in the interval spoke to me with great interest of his memories of the old 'Saturday Review' days. He was in early days on most intimate terms with Fitzjames; they discussed all manner of topics together and were for some time the two principal manufacturers of what were called 'middles'—the articles which intervened between the political leaders and the reviews of books. These became gradually one of the most characteristic facts of the paper, and, as I shall presently explain, gave an opportunity of which Fitzjames was particularly glad to avail himself.

The first contribution from Fitzjames appeared in the second number of the paper. For a short time its successors are comparatively rare, but in the course of the following spring he begins to contribute regularly two articles a week, and before long there are sufficient indications that the editor looks upon him with favour. Articles running to a length of four columns, for example, show that he was not only pouring himself out pretty freely, but that his claims upon space were not grudgingly treated. In March 1856 he says that he is 'very nervous' about his articles and doubtful of Cook's approval, but in the same month he is greatly cheered by a conversation upon the subject with Maine, and begins to perceive that he has really got a permanent footing. He used to tell a story which I cannot perfectly recollect, but which was to the following effect. He had felt very doubtful of his own performances; Cook did not seem at first to be cordial, and possibly his attempts to 'form a style' upon the precedents of conveyancing were not altogether successful. Feeling that he did not quite understand what was the style which would win approval, he resolved that, for once, he would at least write according to his own taste and give vent to his spontaneous impulses, even though it might be for the last time of asking. To his surprise, Cook was delighted with his article, and henceforward he was able to write freely, without hampering himself by the attempt to satisfy uncongenial canons of journalism.[68]

However this may be, he was certainly writing both abundantly and vigorously during the following years. The 'Saturday Review,' like the old 'Edinburgh,' was proud beyond all things of its independence. It professed a special antipathy to popular humbugs of every kind, and was by no means backward in falling foul of all its contemporaries for their various concessions to popular foibles.

The writers were for the most part energetic young men, with the proper confidence in their own infallibility, and represented faithfully enough the main current of the cultivated thought of their day. The paper had occasionally to reflect the High Church proclivities of its proprietor, but the articles showing that tendency were in odd contrast to the general line of argument, which more naturally expressed the contempt of the enlightened for every popular nostrum. Fitzjames, in particular, found occasions for energetically setting forth his own views. He had, of course, a good many chances of dealing with legal matters. He writes periodical articles upon 'the assizes' or discusses some specially interesting case. He now and then gets a chance of advocating a codification of the laws, though he admits the necessity of various preliminary measures, and especially of a more philosophical system of legal education. He denounces the cumbrous and perplexed state of the law in general so energetically, that the arguments have to be stated as those of certain reformers with whom the paper does not openly identify itself.

As became a good Saturday reviewer, he fell foul of many popular idols. One regular chopping-block for irreverent reviewers was Dr. Cumming, who was then proving from the Apocalypse that the world would come to an end in 1865. His ignorance of Greek and of geography, his audacious plagiarisms from E. B. Elliott (a more learned though not a much wiser interpreter), and his insincerity, are denounced so unsparingly as to suggest some danger from the law of libel. Dr. Cumming, however, was wise in his generation, and wrote a letter of such courteous and dignified remonstrance that the 'Saturday Review' was forced to reply in corresponding terms, though declining to withdraw its charges. The whole world of contemporary journalism is arraigned for its subserviency to popular prejudices. The 'Record' is lashed for its religious rancour, and the 'Reasoner' for its vapid version of popular infidelity, though it is contemptuously preferred, in point of spirit, to the 'Record.' Fitzjames flies occasionally at higher game. The 'Times,' if he is to be believed, is conspicuous for the trick of spinning empty verbiage out of vapid popular commonplaces, and, indeed, good sense and right reason appear to have withdrawn themselves almost exclusively to the congenial refuge of the 'Saturday Review.'

There is, however, no shrine sacred to the vulgar in which the writer delights in playing the part of iconoclast so heartily as in that represented by the comic literature of the day. This sentiment, as I have said, had grown up even in Eton schooldays. There was something inexpressibly repugnant to Fitzjames in the tone adopted by a school of which he took Dickens and Douglas Jerrold to be representatives. His view of the general literary question comes out oddly in the article upon 'The Relation of Novels to Life,' contributed to the 'Cambridge Essays.' He has no fear of modern æsthetes before his eyes. His opinion is that life is too serious a business for tomfoolery and far too tragic for needless ostentation of sentiment. A novel should be a serious attempt by a grave observer to draw a faithful portrait of the actual facts of life. A novelist, therefore, who uses the imaginary facts, like Sterne and Dickens, as mere pegs on which to hang specimens of his own sensibility and facetiousness, becomes disgusting. When, he remarks, you have said of a friend 'he is dead,' all other observations become superfluous and impertinent. He, therefore, considers 'Robinson Crusoe' to represent the ideal novel. It is the life of a brave man meeting danger and sorrow with unflinching courage, and never bringing his tears to market. Dickens somewhere says, characteristically, that 'Robinson Crusoe' is the only very popular work which can be read without a tear from the first page to the last. That is precisely the quality which commends it to this stern reader, who thought that in fiction as in life a man should keep his feelings under lock and key. In spite of his rather peculiar canons of taste, Fitzjames was profoundly interested, even in spite of himself, in some novels constructed on very different principles. In these early articles he falls foul of 'Mdme. de Bovary,'[69] from the point of view of the simple-minded moralist, but he heartily admires Balzac, whom he defends against a similar charge, and in whose records of imaginary criminals—records not so famous in England at that time as they now are—he found an interest almost equal to that of the 'State Trials' and Palmer's case. He could also, I must add, enjoy Dickens's humour as heartily as any one. He was well up in 'Pickwick,' though I don't know whether he would have been equal to Calverley's famous examination-paper, and he had a special liking for the 'Uncommercial Traveller.' But when Dickens deserted his proper function Fitzjames was roused to indignation. The 'little Nell' sentimentalism and the long gallery of melodramatic deathbeds disgusted him, while the assaults upon the governing classes generally stirred his wrath. The satire upon individuals may be all very well in its place, but a man, he said, has no business to set up as the 'regenerator of society' because he is its most 'distinguished buffoon.' He was not picking his words, and 'buffoon' is certainly an injudicious phrase; but the sentiment which it expressed was so characteristic and deeply rooted that I must dwell a little upon its manifestation at this time.

The war between the Saturday reviewers and their antagonists was carried on with a frequent use of the nicknames 'prig' and 'cynic' upon one side, and 'buffoon' and 'sentimentalist' upon the other. Phrases so employed soon lose all definite meaning, but it is, I think, easy to see what they meant as applied either by or to Fitzjames. The 'comic writers' for him were exponents of the petty and vulgar ideals of the lower middle classes of the day. The world of Dickens's novels was a portrait of the class for which Dickens wrote. It was a world of smug little tradesmen of shallow and half-educated minds, with paltry ambitions, utter ignorance of history and philosophy, shrinking instinctively from all strenuous thought and resenting every attack upon the placid optimism in which it delighted to wrap itself. It had no perception of the doubts and difficulties which beset loftier minds, or any consciousness of the great drama of history in which our generation is only playing its part for the passing hour. Whatever lay beyond its narrow horizon was ignored, or, if accidentally mentioned, treated with ignorant contempt. This was the spirit which revealed itself in the pæans raised over the Exhibition of 1851, accepted by the popular voice of the day as the inauguration of a millennium of peace and free trade. But all its manifestations were marked by the same narrowness. The class had once found a voice for its religious sentiments in Puritanism, with stern conceptions of duty and of a divine order of the universe. But in its present mood it could see the Puritan leaders represented by a wretched Stiggins—a pothouse Tartufe just capable of imposing upon the friends of Mrs. Gamp. Its own religion was that kind of vapid philanthropic sentiment which calls itself undenominational; a creed of maudlin benevolence from which all the deeper and sterner elements of religious belief have been carefully purged away, and which really corresponds to the moods which Mr Pickwick stimulated by indulgence in milk-punch. When it came face to face with death, and sin, and suffering, it made them mere occasions for displays of sentimentalism, disgusting because such trifling with the most awful subjects shows a hopeless shallowness of nature. Dickens's indulgence in deathbeds meant an effeminate delight in the 'luxury of grief,' revolting in proportion to the solemnity of the topic. This was only another side of the levity with which he treated serious political and social problems. The attitude of mind represented is that of the ordinary newspaper correspondent, who imagines that a letter to the 'Times' is the ultimate remedy for all the evils to which flesh is heir. Dickens's early novels, said Fitzjames, represented an avatar of 'chaff'; and gave with unsurpassable vivacity the genuine fun of a thoroughbred cockney typified by Sam Weller. Sam Weller is delightful in his place; but he is simply impertinent when he fancies that his shrewd mother wit entitles him to speak with authority upon great questions of constitutional reform and national policy. Dickens's later assaults upon the 'Circumlocution Office,' the Court of Chancery, were signal instances of this impatient, irritable, and effeminate levity. Fitzjames elaborated this view in an article upon 'the license of novelists' which appeared in the 'Edinburgh Review' for July 1857. He fell foul of 'Little Dorrit'; but the chief part of the article referred to Charles Reade's 'Never Too Late to Mend.' That novel was briefly a travesty of a recent case in which a prisoner had committed suicide in consequence, as was suggested, of ill-treatment by the authorities of the gaol. The governor had been tried and punished in consequence. Fitzjames gives the actual facts to show how Reade had allowed himself, as a writer of fiction, to exaggerate and distort them, and had at the same time taken the airs of an historian of facts and bragged of his resolution to brand all judges who should dare to follow the precedent which he denounced. This article, I may notice, included an injudicious reference to the case of the Post Office and Rowland Hill, which was not, I believe, due to Fitzjames himself, and which enabled Dickens to reply with some effect in 'Household Words.' Dickens's attacks upon the 'Circumlocution Office' and its like were not altogether inconsistent with some opinions upon the English system of government to which, as I shall have to show, Fitzjames himself gave forcible expression in after years. They started, however, from a very different point of view, and for the present he criticised both Dickens and some of the similar denunciations contained in Carlyle's 'Past and Present,' and 'Latter-day Pamphlets.' The assault upon the 'Circumlocution Office' was, I doubt not, especially offensive because 'Barnacle Tite,' and the effete aristocrats who are satirised in 'Little Dorrit,' stood for representatives of Sir James Stephen and his best friends. In fact, I think, Dickens took the view natural to the popular mind, which always embodies a grievance in a concrete image of a wicked and contemptible oppressor intending all the evils which result from his office. A more interesting and appropriate topic for art of a serious kind would be the problem presented by a body of men of the highest ability and integrity who are yet doomed to work a cumbrous and inadequate system. But the popular reformer, to whom everything seems easy and obvious, explains all abuses by attributing them to the deliberate intention of particular fools and knaves. This indicates Fitzjames's position at the time. He was fully conscious of the administrative abuses assailed, and was as ardent on law reform as became a disciple of Bentham. But he could not accept the support of men who thought that judicious reform could be suggested by rough caricatures, and that all difficulties could be appreciated by the first petty tradesmen who encountered an incidental grievance or by such summary remedies as were to be suggested off-hand by anonymous correspondents. The levity, the ignorance, the hasty and superficial irritability of these reformers, their enormous conceit and imperturbable self-complacency revolted him. English life he declared in the 'Edinburgh Review' is 'too active, English spheres of action too wide, English freedom too deeply rooted, to be endangered by a set of bacchanals drunk with green tea and not protected by petticoats. Boundless luxury,' he thought, 'and thirst for excitement, have raised a set of writers who show a strong sympathy for all that is most opposite to the very foundations of English life.' The 'Saturday Review' articles enlarge upon the same theme. He will not accept legislators whose favourite costume is the cap and bells, or admit that men who 'can make silly women cry can, therefore, dictate principles of law and government.' The defects of our system are due to profound historical causes. 'Freedom and law and established rules have their difficulties,' not perceptible to 'feminine, irritable, noisy minds, always clamouring and shrieking for protection and guidance.' The end to which Dickens would really drive us would be 'pure despotism. No debates to worry effeminate understandings, no laws to prevent judges from deciding according to their own inclination, no forms to prevent officials from dealing with their neighbours as so many parcels of ticketed goods.'[70]

These utterances show the combination of the old Puritanic leaven, to which all trifling and levity is hateful, and the strong patriotic sentiment, to which Dickens in one direction and the politics of Cobden and Bright in the other, appeared as different manifestations of a paltry and narrow indifference to all the great historic aims of the national life. Now, and to some degree always, he strongly sympathised with the patriotism represented by Macaulay.

I need only notice at present certain theological implications. The positivists were beginning to make themselves known, and, for various reasons, were anything but attractive to him. He denounces a manifesto from Mr. Congreve in January 1857, and again from the patriotic side. Mr. Congreve had suggested, among other things, the cession of Gibraltar to Spain, in accordance with his view of international duties. The English nation, exclaims Fitzjames, 'cannot be weighed and measured, and ticketed, and classified, by a narrow understanding and a cold heart.' The 'honest and noble passions of a single nation would blow all Mr. Congreve's schemes to atoms like so many cobwebs. England will never be argued out of Gibraltar except by the ultima ratio.' These doctrines, he thinks, are the fruits of abandoning a belief in theology. 'We, too, have a positive philosophy, and its fundamental maxim is that it is wise for men and nations to mind their own business, and do their own duty, and leave the results to God.' The argument seems to be rather questionable; and perhaps one which follows is not altogether satisfactory, though both are characteristic. The Indian Mutiny had moved him deeply, and, in an article called 'Deus Ultionum'[71] he applies one of his doctrines to this case. He holds that a desire for revenge upon the perpetrators of the atrocities (of which, I may observe, exaggerated accounts were then accepted) was perfectly legitimate. Revenge, he urges, is an essential part of the true theory of punishment—a position which he defends by the authority of Bishop Butler. The only alternative is the theory of simple 'deterrence,' which, as he holds, excludes every moral element of punishment, and supposes man to be a mere 'bag of appetites.'

I have dwelt upon these utterances, not, of course, to consider their value, or as representing his permanent conviction, but simply as illustrating a very deeply rooted sentiment.

His work in the 'Saturday Review' did not exhaust all his literary activity. Between 1856 and 1861 he contributed a few articles to the 'Edinburgh Review,' of which I have already mentioned one. He very naturally turned to the organ in which his father's best-known writings had appeared, and which still enjoyed a high reputation. I believe that the 'Edinburgh Review' still acted upon the precedent set by Jeffrey, according to which a contributor, especially, of course, a young contributor, was regarded as supplying raw material which might be rather arbitrarily altered by the editor. I express no opinion as to the wisdom of that course; but I think that, as a matter of fact, it alienated this contributor in particular. Meanwhile, the father in whose steps he was treading was constantly giving him advice or taking counsel with him during these years. He praised warmly, but with discrimination. The first article in the 'Edinburgh Review' was upon Cavallier, the leader of the Protestant revolt in the Cevennes. The subject, suggested, I fancy, by a trip to the country taken in 1852, was selected less with a view to his own knowledge or aptitudes than by the natural impulse of a young writer to follow the models accepted in his organ. He had selected a picturesque bit of history, capable of treatment after the manner of Macaulay. 'I have read it,' says my father, in words meant to be read to Fitzjames, 'with the pleasure which it always gives me to read his vigorous sense, clear and manly style, right-minded and substantially kind-hearted writings. My respect for his understanding has been for a long time steadily increasing, and is very unlikely to be ever diminished.... But I shall best prove that respect by saying plainly that I do not like this paper as well as those in which he writes argumentatively, speculatively, and from the resources of his own mind. His power consists in reasoning, in the exposition of truth and fallacies. I will not say, for I do not know, that he wants the art of story-telling, but, taking this as a specimen, it seems to me deficient in the great art of linking together a series of facts in such a manner that the connection between them shall be at once perceptible to the most ignorant and inattentive reader, and shall take easy and irresistible possession of the mind. That is Macaulay's pre-eminent gift.' He goes on to apply this in detail. It may be useful to point out faults now; though his criticisms upon anything which Fitzjames may publish in 1890 shall be 'all saccharine.'

In a letter of April 27, 1856, he shows an alarm which was certainly not unnatural. Fitzjames has been writing in the 'Saturday Review,' in 'Fraser,' the 'National Review,' and elsewhere, besides having on hand a projected law-book. Is he not undertaking too much? 'No variety of intemperance is more evidently doomed to work out its own ill-reward than that which is practised by a bookseller's drudge of the higher order.' He appeals to various precedents, such as Southey, whose brain gave way under the pressure. Editors and publishers soon find out the man who is dependent upon them for support, and 'since the abolition of West India slavery the world has known no more severe servitude than his.' 'Can a man of your age,' he asks, 'have the accumulated capital of knowledge necessary to stand such a periodical expenditure?' 'What I have read of your writing seems to me to be singularly unequal. At times it is excellent in style and in conception, and evidently flowing from springs pure, copious, and active, and giving promise of great future eminence. At other times the marks of haste, of exhaustion, and being run out of breath, are perceptible to an eye so sensitive as mine is on this subject. I see no reason why you should not become a great writer and one of the teachers of your country-folk, if you will resolve never to write except from a full mind—which is just as essential to literary success as it is to success in singing never to sing but out of well inflated lungs.' He ends by the practical application of an entreaty to make use of the family purse.

The reference to a law-book is explained by a correspondence which is going on at the same period in regard to various literary proposals. My father sketches several plans; he disapproves of a technical treatise, in which he thinks that Fitzjames would be at a disadvantage from the inevitable comparison with his uncle, the serjeant; but he advises some kind of legal history, resembling Hallam's history inverted. In the proposed book the legal aspect should be in the foreground and the political in the background. He expounds at length a scheme which has not been executed, and which would, I think, be exceedingly valuable. It was suggested by his own lectures on French history, though it must be 'six times longer and sixty times more exact and complete.' It is to be a history of the English administrative system from feudal times downwards, giving an account of the development of the machinery for justice, revenue, ecclesiastical affairs, war, trade, colonies, police, and so forth. Each chapter should expound the actual state of things, and trace the historical development of one department, and would involve a variety of parenthetical inquiries, which should be carefully subordinated to the main purpose. Various hints are given as to the course of investigation that will be necessary. Fitzjames began to work upon this scheme; and his opening chapters fill two or three large manuscript books. The plan was abandoned for one more suitable to his powers. Meanwhile, the literary activity which had alarmed his father was not abated, and, indeed, before very long, was increased.

IV. EDUCATION COMMISSION AND RECORDERSHIP

Another employment for a time gave him work, outside both of his professional and his literary career, though it remained something of a parenthesis. On June 30, 1858, a royal commission was appointed to investigate the state of popular education. The Duke of Newcastle was chairman and the other members were Sir J. T. Coleridge, W. C. Lake (afterwards Dean of Durham), Professor Goldwin Smith, Nassau Senior, Edward Miall, and the Rev. William Rogers, now rector of St. Botolph, Bishopsgate.[72] The Duke of Newcastle was, as I have said, the patron of the editor of the 'Saturday Review,' and perhaps had some interest in that adventure as in the 'Morning Chronicle.' He probably knew of my brother through this connection, and he now proposed him, says Mr. Rogers,[73] as secretary to the commission. The commission began by sending out assistant-commissioners to the selected districts: it afterwards examined a number of experts in educational matters; it sent Mark Pattison and Matthew Arnold to report upon the systems in Germany, France, and Switzerland; it examined all the previous reports presented to the Committee of the Privy Council; it collected a quantity of information from the various societies, from the managers of government, naval and military schools, from schools for paupers and vagrants, and from reformatories; it made an investigation into the state of the charitable endowments, and it compiled a number of statistical tables setting forth the results obtained. 'The man to whom more than to anyone else the country owed a debt of gratitude,' says Mr. Rogers, 'was Fitzjames Stephen.... Though under thirty, he brought to the task a combination of talents rarely found in any one individual. To his keen insight, wide grasp, accurately balanced judgment, and marvellous aptitude for details, was due much of the success with which we were able to lay down the future lines of popular education. I have often thought it strange that this recognition has not in time past been more publicly made.'

The Commission lasted till June 30, 1861. It published six fat volumes of reports, which are of great value to the historian of education. The progress made in subsequent years gives an appearance of backwardness to what was really a great advance upon previous opinion. The plan of compulsory or free education was summarily dismissed; and a minority of the Commission were of opinion that all State aid should be gradually withdrawn. The majority, however, decided that the system rather required development, although the aim was rather to stimulate voluntary effort than to substitute a State system. They thought that the actual number of children at school was not unsatisfactory, and that the desire for education was very widely spread. Many of the schools, however, were all but worthless, and the great aim should be to improve their quality and secure a satisfactory teaching of elementary subjects. They proposed that provision should be made for allowing the formation of boards supported by rates in towns and counties; and that the national grant should be distributed on better principles, so as to secure more efficient results. As Mr. Rogers points out, the 'revised code' soon afterwards issued by Mr. Lowe, and the principles adopted in Mr. Forster's Act a few years later, carried out, though they greatly extended, the proposals of the Commission.

It is impossible to say precisely what share my brother had in these results. I find, however, from a correspondence with his old friend Nassau Senior, that he was an advocate of the view finally adopted by the Commission. He also prepared the report, of course under the direction of his superiors, and the labour thrown upon him during the three years of this occupation must have been considerable. He was, however, writing with his old regularity for the 'Saturday Review,' and was attending sessions and circuits with slowly improving prospects. In a letter written at this time I find him remarking that he is at work all the day and half the night. This is in reference to a case with which he was much occupied during 1858-9, and which is characteristic enough to deserve a few words. His articles in the 'Saturday Review' show the keen interest to which he was aroused by any touch of heroism. He is enthusiastic about arctic adventure, and a warm review of Kane's narrative of the American expedition in search of Franklin brought him the friendship of the author, who died during a visit to England soon afterwards. Another arctic explorer was Captain Parker Snow, who sailed in the search expedition sent out by Lady Franklin in 1850. The place in which the remains were afterwards discovered had been revealed to him in a dream; and but for the refusal of his superior officer to proceed he would have reached the spot. In the year 1854 Captain Snow was sent out by the Patagonian Missionary Society to the place where the unfortunate Allen Gardiner had been starved to death. His crew consisted entirely of 'godly' sailors, who, he says, showed their principles by finding religious reasons for disobeying his orders. Finally Captain Snow was dismissed by an agent of the Society, and, as he maintained, illegally. He published an account of his explorations in Tierra del Fuego, which Fitzjames reviewed enthusiastically. It was long, he said, since he had seen a 'heartier, more genuine, nobler book'; he was tempted to think that Captain Marryat and Kingsley had 'put their heads together to produce a sort of missionary "Peter Simple."' This led to a long correspondence with Captain Snow, who was trying to enforce his claims against the Missionary Society. Fitzjames strongly advised him against legal proceedings, which would, he thought, be fruitless, although Captain Snow had a strong moral claim upon the Society. Captain Snow, however, was not easy to advise, and Fitzjames, thinking him ill-treated, obtained help from several friends and subscribed himself to the Captain's support. After long negotiations the case finally came into court in December 1859, when Fitzjames consented to appear as the Captain's counsel, although he had foreseen the unsuccessful result. He continued to do what he could for the sufferer, to whose honourable, though injudicious conduct he bears a strong testimony, and long afterwards (1879) obtained for him a pension of 40l. from the Civil List, which is, I fear, Captain Snow's only support in his old age.[74]

In August 1859 Fitzjames was made recorder of Newark. The place, which he held till he went to India in 1869, was worth only 40l. a year; but was, as he said, a 'feather in his cap,' and a proof of his having gained a certain footing upon his circuit. It gave him his first experience as a judge, and I may mention a little incident of one of his earliest appearances in that character. He had to sentence a criminal to penal servitude, when the man's wife began to scream; he was touched by her grief, and left a small sum with the mayor to be given to her without mention of his name. The place was, it seems, practically the gift of the Duke of Newcastle; and Bethell, then Attorney-General, wrote to him in favour of Fitzjames's appointment. I am not aware how Bethell came to have any knowledge of him; but Fitzjames had formed a very high opinion of the great lawyer's merits. He showed it when Bethell, then Lord Westbury, was accused of misconduct as Lord Chancellor. He thought that the accusations, if not entirely unfounded, were grossly exaggerated for party purposes. He could not persuade the 'Pall Mall Gazette,' for which he was then writing, to take this view; but upon Westbury's resignation he obtained the insertion of a very cordial eulogy upon the ex-chancellor's merits as a law reformer.

The appointment to the recordership was one of the last pieces of intelligence to give pleasure to my father. Fitzjames had seen much of him during the last year. He had spent some weeks with him at Dorking in the summer of 1858, and had taken a little expedition with him in the spring of 1859. My father injured himself by a walk on his seventieth birthday (January 3, 1859), and his health afterwards showed symptoms of decline. In the autumn he was advised to go to Homburg; and thence, on August 30, he wrote his last letter, criticising a draft of a report which Fitzjames was preparing for the Education Commission, and suggesting a few sentences which would, he thinks, give greater clearness and emphasis to the main points. Immediately afterwards serious symptoms appeared, due, I believe, to the old break-down of 1847. My father was anxious to return, and started homewards with my mother and sister, who had accompanied him. They got as far as Coblenz, where they were joined by Fitzjames, who had set out upon hearing the news. He was just in time to see his father alive. Sir James Stephen died September 14, 1859, an hour or two after his son's arrival. He was buried at Kensal Green, where his tombstone bears the inscription: 'Be strong and of a good courage; be not afraid, neither be thou dismayed: for the Lord thy God is with thee whithersoever thou goest.' The words (from Joshua i. 9) were chosen because a friend remembered the emphasis with which my father had once dwelt upon them at his family prayers. With the opening words of the same passage my brother concluded the book which expressed his strongest convictions,[75] and summed up his practical doctrine of life. What he felt at the time may be inferred from a striking essay upon the 'Wealth of Nature,' which he contributed to the 'Saturday Review' of September 24, 1859.[76] It may be considered as a sermon upon the text of Gray's reflections in the 'Elegy' upon the 'hearts once pregnant with celestial fire' which lie forgotten in the country churchyard. What a vast work has been done by the unknown! what must have been the aggregate ability of those who, in less than thirty generations, have changed the England of King Alfred into the England of Queen Victoria! and yet how few are remembered! How many actions even, which would be gladly remembered, are constantly forgotten? 'The Indian Empire,' he says characteristically, 'is the most marvellous proof of this that the world can supply. A man died not long ago who, at twenty-five years of age, with no previous training, was set to govern a kingdom with absolute power, and who did govern it so wisely and firmly that he literally changed a wilderness into a fruitful land. Probably no one who reads these lines will guess to whom they allude.' I can, however, say that they allude to James Grant Duff (1789-1858), author of the 'History of the Mahrattas,' and father of his friend Sir Mountstuart. Fitzjames had visited the father in Scotland, and greatly admired him. His early career as resident of Sattara sufficiently corresponds to this statement. It is well, as Fitzjames maintained, that things should be as they are. Fame generally injures a man's simplicity; and this 'great reserve fund of ability' acts beneficially upon society at large, and upon the few conspicuous men who are conscious of their debt to their unknown colleagues. It would be a misfortune, therefore, if society affected to class people according to their merits; for, as it is, no one need be ashamed of an obscurity which proves nothing against him. We have the satisfaction of perceiving everywhere traces of skill and power, proving irrefragably that there are among us men 'who ennoble nearly every walk of life, and would have ennobled any.' A similar tone appears in the short life of his father, written in the following year. True success in life, he says, is not measured by general reputation. Sir James Stephen's family will be satisfied by establishing the fact that he did his duty. It was an instance of 'prosperity' that his obscurity 'protected him, and will no doubt effectually protect his memory against unjust censure and ignorant praise.'

The deaths of two old friends of his father's and his own marked the end of the year. On December 20, 1859, he hears of the death of John Austin, and proposes to attend the funeral, 'as there were few men for whom I had more respect or who deserved it more.' His admiration for Austin was at this time at its warmest.[77] Macaulay died on December 28, 1859; and on January 5, 1860, Fitzjames writes from Derby, where he has been all night composing a 'laudation' of the historian for the 'Saturday Review.'[78] It is 7.45 a.m., and he has just washed and dressed, as it is too late to go to bed before court. 'Tom Macaulay,' as has been seen, had been a model held up to him from infancy, and to the last retained a strong hold upon his affectionate remembrance.

Fitzjames was now completing his thirty-first year, and was emerging into a more independent position. He was in the full flow of energetic and various work, which was to continue with hardly an intermission until strength began to fail. At this period he was employed in the Education Commission, which for some time was meeting every day; he was writing for the 'Saturday Review' and elsewhere; he was also beginning to write an independent book; and he was attending his circuit and sessions regularly and gradually improving his position.[79] The story thus becomes rather complicated. I will first say a little of his professional work during the next few years, and I will then mention three books, which appeared from 1861 to 1863, and were his first independent publications; they will suggest what has to be said of his main lines of thought and work.

V. PROGRESS AT THE BAR

His practice at the bar was improving, though not very steadily or rapidly. 'Those cases, like Snow's or Bacon's,' he observes (Dec. 17, 1859), 'do me hardly any good.... I am making a reputation which would be very useful for an older man who already had business, but is to me glory, not gain. I am like a man who has good expectations and little or no income.' Still his position is better: he has made 100l. this year against 50l. the year before; he is beginning to 'take root,' especially at sessions; and he 'thoroughly delights in his profession.' In March 1860 he reports some high compliments from Mr. Justice Willes in consequence of a good speech; and has had inquiries made about him by attornies. But the attornies, he thinks, will have forgotten him before next circuit. There never was a longer hill than that which barristers have to climb; but 'it is neither a steep nor an unpleasant hill.' In July 1861 he was appointed to a revising barristership in North Derbyshire by Chief Baron Pollock, and was presented with a red bag by his friend Kenneth Macaulay, now leader of the circuit. He makes 100l. on circuit, and remarks that this is considered to mark a kind of turning-point. In 1862 things improve again. In July he is employed in three cases of which two were 'glorious triumphs,' and the third, the 'Great Grimsby riot,' which is 'at present a desperate battle,' is the biggest case he has yet had on circuit. The circuit turns out to be his most profitable, so far. On October 20 he reports that he has got pretty well 'to the top of the little hill' of sessions, and is beginning, though cautiously, to think of giving them up and to look forward to a silk gown. In 1863 he has 'a wonderful circuit' (March 20) above 200l., owing partly, it would seem, to Macaulay's absence, and too good to be repeated. In the summer, however, he has the first circuit in which there has been no improvement. On October 25 he is for once out of spirits. He has had 'miserable luck,' though he thinks in his conscience that it has been due not to his own fault, but to the 'stupidity of juries.' 'There is only one thing,' he says, 'which supports me in this, the belief that God orders all things, and that therefore we can be content and ought to take events as they come, be they small or great. Whenever I turn my thoughts that way it certainly does not seem to me very important whether in this little bit of a life I can accomplish all that I wish—so long as I try to do my best. I have often thought that perhaps one's life may be but a sort of school, in which one learns lessons for a better and larger world, and if so, I can quite understand that the best boys do not get the highest prizes, and that no boy, good or bad, ought to be unhappy about his prizes. There are things I long to do; books I long to write; thoughts and schemes that float before me, looking so near and clear, and yet being, as I feel, so indistinct or distant that I shall never make anything of them. Small ties and little rushings of the mind, briefs and magazine articles, and their like, will clog my wheels day after day and year after year. Yet I cannot altogether blame myself. Looking back on my life, I cannot seriously regret any of the principal steps I have taken in it. Still I do feel more or less disquieted or perturbed—I cannot help it.' Some uncomfortable thoughts could hardly fail to intrude at times when the compliments which he received from the highest authorities failed to be backed by a corresponding recognition from attornies; and at times, I suspect, his spirits were depressed by over-work, of which he was slow to acknowledge the possibility. To work, indeed, he turned for one chief consolation. He refers incidentally to various significant performances. 'Last night,' he writes from Derby, April 10, 1862, 'I finished a middle at two; and to-day I finished "Superstition"' (an article in the 'Cornhill') 'in a six hours' sitting, during which I had written thirty-two MS. pages straight off. I don't feel at all the worse for it.' On Nov. 14 following he observes that he is 'in first-rate health.' He wrote all night from six till three, got up at 7.30, and walked thirty-one miles; after which he felt 'perfectly fresh and well.' On Jan. 13, 1863, he has a long drive in steady rain, sits up 'laughing and talking' till one; writes a review till 4.45, and next day writes another article in court. On July 17, 1864, he finishes an article upon Newman at 3 a.m., having written as much as would fill sixteen pages of the 'Edinburgh Review'—the longest day's work he had ever done, and feels perfectly well. On March 13, 1865, he gets up at six, writes an article before breakfast, is in court all day, and has a consultation at nine. Early rising was, I think, his commonest plan for encountering a pressure of work; but he had an extraordinary facility for setting to work at a moment's notice. He had a power of eating and sleeping at any time, which he found, as he says, highly convenient. He was equally ready to write before breakfast, or while other people were talking and speechifying all round him in court, or when sitting up all night. And, like a strong man, he rejoiced in his strength, perhaps a little too unreservedly. If he now and then confesses to weariness, it never seemed to be more than a temporary feeling.

Of the cases in which he was engaged at this period I need only mention two—the case of Dr. Rowland Williams, of which I shall speak directly in connection with his published 'defence'; and the case of a man who was convicted of murder at Warwick in December 1863. The fellow had cut the throat of a girl who had jilted him. The facts were indisputable, and the only possible defence was insanity. Kenneth Macaulay and Fitzjames were counsel for the defence, but failed, and, as Fitzjames thought, rightly failed, to make good their case. He was, however, deeply moved by the whole affair—the most dramatic, he says, in which he had been engaged. The convict's family were respectable people, and behaved admirably. 'The poor mother sat by me in court and said, "I feel as if I could cling to anyone who could help him," and she put her hand on my arm and held it so that I could feel every beat of her pulse. Her fingers clutched me every time her heart beat. The daughters, too, were dreadfully moved, but behaved with the greatest natural dignity and calmness.' After the conviction Fitzjames felt that the man deserved to be hanged; but felt also bound to help the father in his attempts to get the sentence commuted. He could not himself petition, but he did his best to advise the unfortunate parents. He used to relate that the murderer had written an account of the crime, which it was proposed to produce as a proof of insanity. To Fitzjames it seemed to be a proof only of cold-blooded malignity which would insure the execution of the sentence. He was tormented by the conflict between his compassion and his sense of justice. Ultimately the murderer was reprieved on the ground that he had gone mad after the sentence. Fitzjames had then, he says, an uncomfortable feeling as if he were partly responsible for the blood of the murdered girl. The criminal soon afterwards committed suicide, and so finished the affair.

VI. 'ESSAYS BY A BARRISTER'

I turn now to the literary work which filled every available interstice of time. In the summer of 1862 Fitzjames published 'Essays by a Barrister' (reprinted from the 'Saturday Review'). The essays had appeared in that paper between the end of 1858 and the beginning of 1861. From February 9, 1861, to February 28, 1863, he did not write in the 'Saturday Review.' A secession had taken place, the causes of which I do not precisely know. I believe that the editor wished to put restrictions, which some of his contributors, including Fitzjames, resented, upon the services to be rendered by them to other periodicals. The breach was eventually closed without leaving any ill-feeling behind it. Fitzjames at first felt the relief of not having to write, and resolved to devote himself more exclusively to his profession. But before long he was as hard at work as ever. During 1862 he wrote a good many articles for the 'London Review,' which was started as a rival of the 'Saturday Review.' He found a more permanent outlet for his literary energies in the 'Cornhill Magazine.' It was started by Messrs. Smith & Elder at the beginning of 1860 with Thackeray for editor; and, together with 'Macmillan's Magazine'—its senior by a month—marked a new development of periodical literature. Fitzjames contributed a couple of articles at the end of 1860; and during 1861, 1862, and 1863, wrote eight or nine in a year. These articles (which were never reprinted) continue the vein opened in the 'Essays by a Barrister.' His connection with the 'Magazine' led to very friendly relations with Thackeray, to whose daughters he afterwards came to hold the relation of an affectionate brother. It also led to a connection with Mr. George Smith, of Smith, Elder & Co., which was to be soon of much importance.

The articles represented the development of the 'middles,' which he considered to be the speciality of himself and his friend Sandars. The middle, originally an article upon some not strictly political topic, had grown in their hands into a kind of lay sermon. For such literature the British public has shown a considerable avidity ever since the days of Addison. In spite of occasional disavowals, it really loves a sermon, and is glad to hear preachers who are not bound by the proprieties of the religious pulpit. Some essayists, like Johnson, have been as solemn as the true clerical performer, and some have diverged into the humorous with Charles Lamb, or the cynical with Hazlitt. At this period the most popular of the lay preachers was probably Sir Arthur Helps, who provided the kind of material—genuine thought set forth with real literary skill and combined with much popular sentiment—which served to convince his readers that they were intelligent and amiable people. The 'Saturday reviewers,' in their quality of 'cynics,' could not go so far in the direction of the popular taste; and their bent was rather to expose than to endorse some of the commonplaces which are dear to the intelligent reader. Probably it was a sense of this peculiarity which made Fitzjames remark when his book appeared that he would bet that it would never reach a second edition. He would, I am sorry to say, have won his bet; and yet I know that the 'Essays by a Barrister,' though never widely circulated, have been highly valued by a small circle of readers. The explanation of their fate is not, I think, hard to give. They have, I think, really great merits. They contain more real thought than most books of the kind; they are often very forcibly expressed; and they unmistakably reflect very genuine and very strong convictions. Unluckily, they maintain just the kind of views which the congregation most easily gathered round such a pulpit is very much inclined to regard with suspicion or with actual dislike.

An essay, for example, upon 'doing good' is in fact a recast of the paper which decided his choice of a profession. It is intended to show that philanthropists of the Exeter Hall variety are apt to claim a monopoly of 'doing good' which does not belong to them, and are inclined to be conceited in consequence. The ordinary pursuits are equally necessary and useful. The stockbroker and the publican are doing good in the sense of being 'useful' as much as the most zealous 'clergyman or sister of mercy.' Medicine does good, but the butcher and the baker are still more necessary than the doctor. We could get on without schools or hospitals, but not without the loom and the plough. The philanthropist, therefore, must not despise the man who does a duty even more essential than those generally called benevolent, though making less demand on the 'kindly and gentle parts of our nature.' A man should choose his post according to his character. It is not a duty to have warm feelings, though it may be a misfortune not to have them; and a 'cold, stern man' who should try to warm up his feelings would either be cruelly mortified or become an intolerable hypocrite. It is a gross injustice to such a man, who does his duty in the station fittest to his powers, when he is called by implication selfish and indifferent to the public good. 'The injustice, however, is one which does little harm to those who suffer under it, for they are a thick-skinned and long-enduring generation, whose comfort is not much affected one way or the other by the opinion of others.'

This, like Fitzjames's other bits of self-portraiture, is not to be accepted too literally. So taken, it confounds, I think, coldness and harshness with a very different quality, a want of quick and versatile sympathy, and 'thickness of skin' with the pride which would not admit, even to itself, any tendency to over-sensibility. But it represents more or less the tone which came naturally to him, and explains the want of corresponding acceptability to his readers. He denounces the quality for which 'geniality' had become the accepted nickname. The geniality, whether of Dickens or Kingsley, was often, he thought, disgusting and offensive. It gives a false view of life. 'Enjoyment forms a small and unimportant element in the life of most men.' Life, he thinks, is 'satisfactory' but 'enjoyment casual and transitory.' 'Geniality,' therefore, should be only an occasional element; habitually indulged and artificially introduced, it becomes as nauseous as sweetmeats mixed with bread and cheese. To the more serious person, much of the popular literature of the day suggests Solomon's words: 'I said of laughter, it is mad; and of mirth what doeth it?' So the talk of progress seems to him to express the ideal of a moral 'lubberland.' Six thousand years of trial and suffering, according to these prophets, are to result in a 'perpetual succession of comfortable shopkeepers.' The supposition is 'so revolting to the moral sense that it would be difficult to reconcile it with any belief at all in a Divine Providence.' You are beginning, he declares after Carlyle's account of Robespierre, 'to be a bore with your nineteenth century.' Our life, he says elsewhere ('Christian Optimism'), is like 'standing on a narrow strip of shore, waiting till the tide which has washed away hundreds of millions of our fellows shall wash us away also into a country of which there are no charts and from which there is no return. What little we have reason to believe about that unseen world is that it exists, that it contains extremes of good and evil, awful and mysterious beyond human conception, and that these tremendous possibilities are connected with our conduct here. It is surely wiser and more manly to walk silently by the shore of that silent sea, than to boast with puerile exultation over the little sand castles which we have employed our short leisure in building up. Life can never be matter of exultation, nor can the progress of arts and sciences ever fill the heart of a man who has a heart to be filled.' The value of all human labours is that of schoolboys' lessons, 'worth nothing at all except as a task and a discipline.' Life and death are greater and older than steam engines and cotton mills. 'Why mankind was created at all, why we continue to exist, what has become of all that vast multitude which has passed, with more or less sin and misery, through this mysterious earth, and what will become of those vaster multitudes which are treading and will tread the same wonderful path?—these are the great insoluble problems which ought to be seldom mentioned but never forgotten. Strange as it may appear to popular lecturers, they do make it seem rather unimportant whether, on an average, there is a little more or less good nature, a little more or less comfort, and a little more or less knowledge in the world.' Such thoughts were indeed often with him, though seldom uttered. The death of a commonplace barrister about this time makes him remark in a letter that the sudden contact with the end of one's journey is not unwelcome. The thought that the man went straight from the George IV. Hotel to 'a world of ineffable mysteries is one of the strangest that can be conceived.'

I have quoted enough from the essays to indicate the most characteristic vein of thought. They might have been more popular had he either sympathised more fully with popular sentiment or given fuller and more frequent expression to his antipathy. But, it is only at times that he cares to lay bare his strongest convictions; and the ordinary reader finds himself in company with a stern, proud man who obviously thinks him foolish but scarcely worth denouncing for his folly. Sturdy common sense combined with a proud reserve which only yields at rare intervals, and then, as it were, under protest, to the expression of deeper feeling, does not give the popular tone. Some of the 'Cornhill' articles were well received, especially the first, upon 'Luxury' (September 1860), which is not, as such a title would now suggest, concerned with socialism, but is another variation upon the theme of the pettiness of modern ideals and the effeminate idolatry of the comfortable.

These articles deal with many other topics: with the legal questions in which he is always interested, such as 'the morality of advocacy' and with the theory of evidence, with various popular commonplaces about moral and social problems, with the 'spirit-rapping' then popular, with various speculations about history, and with some of the books in which he was always interested. One is the 'laudation' of Macaulay which I have noticed, and he criticises Carlyle and speaks with warm respect of Hallam. Here and there, too, are certain philosophical speculations, of which I need only say that they show his thorough adherence to the principles of Mill's 'Logic' He is always on the look-out for the 'intuitionist' or the believer in 'innate ideas,' the bugbears of the Mill school. In an article upon Mansel's 'Metaphysics' he endeavours to show that even the 'necessary truths' of mathematics are mere statements of uniform experience, which may differ in another world. This argument was adopted by Mill in his 'examination of Sir W. Hamilton's philosophy.'[80] I cannot say that I think it a fortunate suggestion; and I only notice it as an indication of Fitzjames's intellectual position.