Chapter V: Last Years at the Bar (4)

Of the cases themselves I must say generally that they often provoked a grim smile from the advocate. When, in earlier days, he had defended Dr. Williams he had spoken not merely as an advocate, but as a man who had felt that he was vindicating the intellectual liberty of the Church of which he was a member. The cases in which he was now concerned could appeal to him only as an advocate. The first in which he appeared, February 16, 1876, was sufficiently grotesque.[171] A clergyman had refused to administer the sacrament to a gentleman who had published a volume of 'Selections' from the Bible--implying, it was suggested, that he did not approve of the part not selected--and who had his doubts about the devil. The clergyman was reported to have said, 'Let him sit down and write a calm letter, and say he believes in the devil, and I will give him the sacrament.' The only legitimate causes in a legal sense for refusing the sacrament would be that a man was an 'open and notorious evil liver,' or a 'common and notorious depraver of the Book of Common Prayer.' The Court of Arches apparently held that the gentleman came under this description; but the Judicial Committee of the Privy Council, after hearing Fitzjames, decided that he did not. A man might disbelieve in the devil, without being a 'notorious evil liver,' however irrational may be his scepticism.

The most important of his appearances was in the Folkestone case.[172] His 'opening argument, and even more his reply' (upon the appeal), 'were masterpieces, and they obtained from the Privy Council a judgment in very marked contrast to those which had preceded it.' His argument, as Sir F. Jeune thinks, induced the Privy Council to some extent 'to retrace, or at least seem to retrace, its steps.' The judgment sanctioned what is known as the 'Eastern position,' and certain other ritualistic practices. In another case,[173] it was decided, in accordance with Fitzjames's argument, that a sculptured representation of the Crucifixion, as opposed to the exhibition of a crucifix, was lawful.

Fitzjames, in his letters at this time, gives his own view pretty emphatically. While you, he says to Lord Lytton, (I shall speak of this correspondence directly) 'are fighting with famine in India, I am struggling over albs and chasubles, and superstitions not more reasonable than those about Vishnu and Shiva.' 'I have been passionately labouring for the last nine days' (he says a little later in regard to the Folkestone case) 'for the liberty of the clergy to dress themselves in certain garments and stand in particular attitudes. All my powers of mind and body were devoted to these important objects, till I dreamed of chasubles and wafers.' Some years ago, he remarks, certain natives of India, having an interest in an appeal to the Privy Council, caught an idiot and slew him on a hill-top as a sacrifice to the deity who presides over the deliberations of that body. A being capable of being propitiated in that fashion might take an interest in squabbles over wafers and chasubles. 'It is a foolish subject to joke about,' he adds, 'for beyond all manner of doubt my clients' real object is to get as much idolatry as possible into the poor old Church of England, and I believe that they will sooner or later succeed in making the whole thing look absurd and breaking it up.' Whether that would be a good thing or not is a matter upon which he feels unable to make up his mind.

Amid these various occupations, Fitzjames, however fully occupied, showed no symptoms of being over-worked or over-worried. He had, in a remarkable degree, the power of taking up and dismissing from his mind the matters in each of which he was alternately absorbed. He could throw himself into codifying, or speculating, or getting up briefs at any moment and in any surroundings, and dismiss each occupation with equal readiness. He found time, too, for a good deal of such society as he loved. He heartily enjoyed little holiday tours, going occasionally to the Continent, and more frequently to some of the friends to whom he always adhered and to whom he could pour out his opinions frankly and fully. Maine was almost his next-door neighbour, and frequently consulted him upon Indian matters. He took his Sunday walks with Carlyle; and he went to stay with Froude, in whose society he especially delighted, in a summer residence in Devonshire. He frequently visited his old friend Venables in Wales, and occasionally spent a few days with members of his own family. Although ready to take up a bit of work, literary or professional, at any moment, he never appeared to be preoccupied; and could discourse with the utmost interest upon his favourite topics, though he sometimes calls himself 'unsociable'--by which he apparently means that he cared as little as might be for the unsociable kind of recreation. He was a member of the 'Cosmopolitan'; he belonged also to 'The Club' and to the 'Literary Society,' and he heartily enjoyed meeting distinguished contemporaries. In 1874 he paid a visit to his friends the Stracheys, who had taken for the summer a house at Anaverna, near Ravensdale, Co. Louth, in Ireland. He liked it so much that he resolved to become their successor. He took the house accordingly, and there spent his holidays in the summer of 1875 and the succeeding years so long as his strength lasted.

Anaverna is a village about five miles of Dundalk, at the foot of a range of grassy hills rising to a height of some 1,700 feet, within a well-wooded country below. The house stood in grounds of about sixty acres, including a wood and traversed by a mountain-stream. Fitzjames enjoyed walks over the hills, and, in the last years, drives in the lower country. To this place, and the quiet life there, Fitzjames and his family became most warmly attached. His letters abound in enthusiastic remarks about the scenery, and describe his pleasure in the intercourse with neighbours of all classes, and in the visits of old friends who came to stay with him. A good deal of his later writing was done there.

VIII. CORRESPONDENCE WITH LORD LYTTON

I have now to speak of a new friendship which played a very important part in his life from this time. In January 1876, Lord Lytton[174] was appointed Governor-General of India. In February, Fitzjames dined in his company at Lord Arthur Russell's. They went afterwards to the 'Cosmopolitan,' and by the end of the evening had formed a close friendship, which was only to end with their lives. Some of Fitzjames's friends were surprised at the singular strength of attachment between two men so conspicuously different in mind and character. Some contrasts, as everyone observes, rather facilitate than impede friendship; but in this case the opposition might seem to be too decided. The explanation is not, I think, difficult. Lord Lytton, in the first place, was a singularly charming person. He was not only a delightful companion, but he was delightful because obviously open-hearted, enthusiastic, and exceedingly affectionate. To such charms Fitzjames was no more obdurate than his fellows. Lord Lytton, it is true, was essentially a man of letters; he was a poet and a writer of facile and brilliant prose; and Fitzjames acknowledged, or rather claimed, a comparative insensibility to excellence of that kind. Upon some faults, often combined with a literary temperament, he was perhaps inclined to be rather too severe. He could feel nothing but hearty contempt for a man who lapped himself in æsthetic indulgences, and boasted of luxurious indifference to the great problems of the day. Such an excess of sensibility, again, as makes a man nervously unwilling to reveal his real thoughts, or to take part in a frank discussion of principles, would be an obstacle to intimacy. Fitzjames might not improbably decline to take the trouble necessary to soothe the vanity, or thaw the shyness of such a person, and might perhaps too hastily set him down for a coward or a 'poor creature.' But when, as was often the case, the sensitive person was encouraged to openness by Fitzjames's downright ways, the implied compliment would be fully recognised. Lord Lytton, as an accomplished man of the world, was of course free from any awkward bashfulness; and at the very first interview was ready to meet Fitzjames half-way. His enthusiasm accordingly met with a rapid return. One of Fitzjames's favourite assertions was that nobody but a humbug could deny the pleasantness of flattery; and, in fact, I think that we all like it till we discover it to be flattery. What he really meant was that he liked downright, open-hearted and perfectly sincere praise; and both parties to this alliance could praise each other both sincerely and heartily.

There was, however, another reason which helps to explain the great value which Fitzjames attached from the first to this intercourse. It comes out in almost every letter in his part of their correspondence. Fitzjames calls himself 'self-contained'; and the epithet is quite appropriate if it is taken as not implying any connotation of real selfishness. He was, that is, sufficient for himself; he was contented so long as he could feel, as he always had a right to feel, that he was doing his work thoroughly to the very best of his abilities. He could dispense with much appreciation from outside, though it was unaffectedly welcome when it came from competent persons. He had too much self-reliance to be dependent upon any endorsement by others. But, though this might be perfectly true, he was at bottom sensitive enough, and it was also true that he felt keenly certain consequences of his position. His professional career, as I have so often said, had been a series of tantalising half-successes; he was always being baffled by cross winds at the harbour-mouth. Although his courage never failed for an instant, he could not but have a certain sense of isolation or want of support. This was especially true of the codification schemes which occupied so much of his thought. He had been crying in the market-place and no man heeded him. Yet his voice was powerful enough morally as well as physically. He had the warmest of friends. Some of them were devoted to pursuits which had nothing to do with law and could only express a vague general sympathy. They admired his general vigour, but were not specially interested in the ends to which it was applied. Others, on the contrary, were politicians and lawyers who could have given him effectual help. But they almost unanimously refused to take his plans seriously. The British barrister and member of Parliament looked upon codification as at best a harmless fancy. 'A jurist,' Fitzjames sometimes remarks in a joke, which was not all joking, is a 'fool who cannot get briefs.' That represents the view generally taken of his own energy. It was possibly admirable, certainly unobjectionable, but not to the purpose. The statesman saw little chance of gaining votes by offers of a code, and the successful lawyer was too much immersed in his briefs to care about investigating general principles of law. At last, as I have said, Fitzjames got a disciple or two in high places, but even then his most telling argument seems to have been less that codification was good in itself than that success in passing a code would be a feather in the Government cap. Up to 1876 he had not even got so far. Russell Gurney, indeed, had helped him, and Coleridge had shown an interest in his work; but the general answer to his appeals was even more provoking than opposition; it was the reply of stolid indifference.

In India his hands had been free. There he had really done a genuine and big stroke of work. The contrast to English methods, and the failure of his attempts to drive his ideas into the heads of any capable allies, had strengthened his antipathy to the home system, though it had not discouraged him from work. But now at last he had made a real and enthusiastic convert; and that convert a Governor-General, who would be able to become an effective agent in applying his ideas. The longing for real sympathy, scarcely perhaps admitted even to himself, had been always in existence, and its full gratification stimulated his new friendship to a rapid growth. Lord Lytton left for India on March 1, 1876. Before he left, Fitzjames had already written for him an elaborate exposition of the Indian administrative system, which Lytton compared to a 'policeman's bull's-eye.' It lighted up the mysteries of Indian administration. Fitzjames writes to him on the day of his departure: 'You have no conception of the pleasure which a man like me feels in meeting with one who really appreciates and is willing to make use of the knowledge which he has gained with great labour and much thought. I have had compliments of all sorts till I have become almost sick of them, but you have paid me the one compliment which goes straight to my heart--the compliment of caring to hear what I have to say and seeing the point of it.' 'You have managed,' he afterwards says, 'to draw me out of my shell as no one else ever did.' Three years later he still dwells upon the same point. You, he says (January 27, 1879) 'are the only prominent public man who ever understood my way of looking at things, or thought it in the least worth understanding.' 'Others have taken me for a clever fellow with dangerous views.' 'You have not only understood me, but, in your warm-hearted, affectionate way, exaggerated beyond all measure the value of my sayings and doings. You have not, however, exaggerated in the least my regard for you, and my desire to be of service to you.'

These words give the key-note of the correspondence, and may help to explain the rapid growth and singular strength of the friendship between two men whose personal intercourse had been limited to less than a month. Fitzjames threatened, and the 'threat' was fully executed, to become a voluminous correspondent. I cannot say, indeed, which correspondent wrote most frankly and abundantly. The letter from which I have quoted the last passage is in answer to one from Lord Lytton, filling thirty sheets, written, as he says, 'in a hurry,' but, as Fitzjames declares, with 'only two slips of the pen, without an "erasure," in a handwriting which fills me with helpless admiration,' and in a style which cannot be equalled by any journalist in England. 'And this you do by way of amusing yourself while you are governing an empire in war-time,' and yet compliment me for writing at leisure moments during my vacations! Fitzjames, however, does his best to keep pace with his correspondent. Some of his letters run to fourteen and fifteen sheets; and he snatches intervals from worrying labours on his codes, or on the bench or on commissions, or sitting up at nights, to pour out discourses which, though he wrote very fast, must often have taken a couple of hours to set down. The correspondence was often very confidential. Some of Lytton's letters had to be kept under lock and key or put in the fire for safer guardianship. Lytton had a private press at which some of his correspondent's letters were printed, and Fitzjames warns him against the wiles of editors of newspapers in a land where subordinates are not inaccessible to corruption. It would, however, not be in my power, even if I had the will, to reveal any secrets of state. Fitzjames's letters indeed (I have not seen Lord Lytton's), so far as they are devoted to politics, deal mainly with general considerations.

It would be idle to go far into these matters now. It is indeed sad to turn over letters, glowing with strong convictions as well as warm affection and showing the keenest interest in the affairs of the time, and to feel how completely they belong to the past. Some of the questions discussed might no doubt become interesting again at any moment; but for the present they belong to the empire of Dryasdust. Historians will have to form judgments of the merits of Lord Lytton's policy in regard to Afghanistan; but I cannot assume that my readers will be hankering for information as to the special views taken at the time by a man who was, after all, a spectator at some distance. I therefore give fair warning to historical inquirers that they will get no help from me.

When the earlier letters were written the Afghan troubles had not become acute. Fitzjames deals with a variety of matters, some of which, as he of course recognises, lie beyond his special competence. He writes at considerable length, for example, upon the depreciation of the rupee, though he does not profess to be an economist. He gives his views as to the right principles not only of civil, but of military organisation; and discusses with great interest the introduction of natives into the civil service. 'In the proper solution of that question,' he says, 'lies the fate of the empire.' Our great danger is the introduction of a 'hidebound' and mechanical administrative system worked by third-rate Europeans and denationalised natives. It is therefore eminently desirable to find means of employing natives of a superior class, though the precise means must be decided by men of greater special experience. He writes much, again, upon the famine in Madras, in regard to which he had many communications with his brother-in-law, Cunningham, then Advocate-General of the Presidency. He was strongly impressed by the vast importance of wise precautions against the future occurrence of such calamities.

Naturally, however, he dilates most fully upon questions of codification, and upon this head his letters tend to expand into small state-papers. Soon after Lord Lytton's departure there was some talk of Fitzjames's resuming his old place upon the retirement of Lord Hobhouse, by whom he had been succeeded. It went so far that Maine asked him to state his views for the information of Lord Salisbury. Fitzjames felt all his old eagerness. 'The prospect,' he says, 'of helping you and John Strachey to govern an empire,' and to carry out schemes which will leave a permanent mark upon history, is 'all but irresistibly attractive.' He knew, indeed, in his heart that it was impossible. He could not again leave his family, the elder of whom were growing beyond childhood, and accept a position which would leave him stranded after another five years. He therefore returned a negative, though he tried for a time to leave just a loophole for acceptance in case the terms of the tenure could be altered. In fact, however, there could be no real possibility of return, and Mr. Whitley Stokes succeeded to the appointment. Towards the end of Lord Lytton's governorship there was again some talk of his going out upon a special mission in regard to the same subject. But this, too, was little more than a dream, though he could not help 'playing with' the thought for a time.

Meanwhile he corresponded with Lord Lytton upon various measures. He elaborately annotated the drafts of at least one important bill; he submitted remarks to be laid before the Council at Lord Lytton's request, and finally he wrote an elaborate minute upon codification generally. I need only say that, in accordance with what he had said in his last speeches at Calcutta, he held that nearly enough had been done in the way of codifying for India. He insists, too, upon the danger of dealing with certain branches of legislation, where the codification might tend to introduce into India the subtleties and intricacies of some points of English law. Part of this correspondence was taking place during the exciting events in Afghanistan; and he then observes that after all codification is 'only a luxury,' and must for the present give way to more important matters.

Fitzjames, of course, followed the development of the Government policy in regard to Russia and the Afghans with extreme interest. He looked with contempt upon the various fluctuations of popular sentiment at the period of the Bulgarian atrocities, and during the Russian war with Turkey; and he expresses very scanty respect for the policy of the English Government at that period. He was occasionally tempted to take to his old warfare in the press; but he had resolved to give up anonymous journalism. He felt, too, that such articles would give the impression that they were inspired by the Indian Government; and he thought it better to reserve himself for occasions on which he could appear openly in his own person. Such occasions offered themselves more than once, and he seized them with all his old vigour.

A speech made by Bright provoked the first noticeable utterance. Fitzjames wrote two letters to the 'Times,' which appeared December 27, 1877, and January 4, 1878, with the heading 'Manchester in India.' Bright represented the political school which he most detested. According to Bright (or Fitzjames's version of Bright, which was, I dare say, accurate), the British rule in India was the result of 'ambition, conquest, and crime.' We owed, therefore, a heavy debt to the natives; and, instead of paying it, we kept up a cumbrous system of government, which provided for members of the British upper classes, and failed to promote the material welfare of our subjects. The special instance alleged was the want of proper irrigation. To this Fitzjames replied in his first letter that we had, in fact, done as much as could be done, and possibly more than was judicious; and he accuses his antagonist of gross ignorance of the facts. His wrath, however, was really aroused by the moral assumptions involved. Bright, he thought, represented the view of the commonplace shopkeeper, intensified by the prejudices of the Quaker. To him ambition and conquest naturally represented simple crimes. Ambition, reports Fitzjames, is the incentive to 'all manly virtues'; and conquest an essential factor in the building up of all nations. We should be proud, not ashamed, to be the successors of Clive and Warren Hastings and their like. They and we are joint architects of the bridge by which India has passed from being a land of cruel wars, ghastly superstitions, and wasting plague and famine, to be at least a land of peace, order, and vast possibilities. The supports of the bridge are force and justice. Force without justice was the old scourge of India; but justice without force means the pursuit of unattainable ideals. He speaks 'from the fulness of his heart,' and impressed by the greatest sight he had ever seen.

Fitzjames kept silence for a time, though it was a grief to him, but he broke out again in October 1878, during the first advance into Afghanistan. Party feeling was running high, and Fitzjames had to encounter Lord Lawrence, Lord Northbrook, Sir W. Harcourt, and other able antagonists. He mentions that he wrote his first letter, which fills more than two columns of the 'Times,' four times over. I should doubt whether he ever wrote any other such paper twice. The sense of responsibility shown by this excessive care led him also to confine himself to a single issue, upon which he could speak most effectively, out of several that might be raised. He will not trespass upon the ground of military experts, but, upon the grounds of general policy, supports a thesis which goes to the root of the matter. The advance of the Russian power in Central Asia makes it desirable for us to secure a satisfactory frontier. The position of the Russians, he urges, is analogous to our own position in India in the days of Wellesley. It is idle to denounce them for acting as we acted; but it is clear that the two empires will ultimately become conterminous; and it is, therefore, essential for us that the dividing line should be so drawn as to place us in perfect security. Though Fitzjames declined to draw any specific moral, his antagonists insisted upon drawing one for him. He must be meaning to insinuate that we were to disregard any rights of the Afghans which might conflict with our alleged interests.

This point was touched in a letter by Lord Lawrence, to which Fitzjames felt bound to reply. He was reluctant to do so, because he was on terms of personal friendship with Lawrence, whose daughter had recently become the wife of Henry Cunningham. 'I have seldom,' says Fitzjames (October 4, 1877), 'met a more cheery, vivacious, healthy-minded old hero.' Lawrence, he is glad to think, took a fancy to him, and frequently poured himself out abundantly upon Indian topics. Their friendship, happily, was not interrupted by the controversy, in which Fitzjames was scrupulously respectful. This, again, raised the old question about International Law, which Fitzjames, as a good Austinian, regarded mainly as a figment. The moral point, however, is the only one of general interest. Are we bound to treat semi-barbarous nations on the same terms as we consider to govern our relations with France or Germany? Or are we morally entitled to take into account the fact that they are semi-barbarous? Fitzjames's view may be briefly defined. He repudiates emphatically the charge of immorality. He does not hold the opinion imputed to him by his antagonists that we may take what territory we please, regardless of the interests of barbarous natives. He repeats his assertion that our rule rests upon justice as well as force. He insists upon the same point, I may add, in his private letters to Lytton, and declares that it is even more important to be straightforward and to keep our word sacredly with Afghans than with civilised races. He writes very warmly upon the danger of exacting excessive punishment for the murder of Cavagnari. We ought to prove to the natives that our rule is superior to theirs, and that we are strong enough to keep our heads and be merciful even in the face of insults. But then, we have to act upon our own conceptions of morality, and must not be hampered by regarding nations as fictitious persons with indisputable rights. When we have to do with semi-savages, we may have to enforce our own views upon them by the strong hand. Some one, for example, had maintained that the eighth commandment forbade us to interfere with independent tribes; Fitzjames observes (December 25, 1878) that they have just the same right to be independent as the Algerine pirates to infest the Straits of Gibraltar. A parcel of thieves and robbers who happen to have got hold of the main highway of the world have not, therefore, a right to hold it against all comers. If we find it necessary to occupy the passes, we shall have to give them a lesson on the eighth commandment. Nobody will ever persuade him that any people, excepting 'a few strapping fellows between twenty and forty,' really prefer cruel anarchy and a life of murder and plunder to peace and order. Nor will anyone persuade him that Englishmen, backed by Sikhs and Ghoorkas, could not, if necessary, reduce the wild tribes to order, and 'sow the first seeds of civilisation' in the mountains.

To some people it may seem that the emphasis is laid too much upon force and too little upon justice. I am only concerned to say that Fitzjames's whole theory is based upon the view--sufficiently expounded already--that force, order, and justice require a firm basis of 'coercion'; and that, while we must be strictly just, according to our own views of justice, we must not allow our hands to be tied by hollow fictions about the 'rights' of races really unfit for the exercise of the corresponding duties. On this ground, he holds it to be possible to have an imperial 'policy which shall yet be thoroughly unjingo-like.'

Upon this I need insist no further. I shall only say that he always regarded the British rule in India as the greatest achievement of the race; that he held it to be the one thoroughly satisfactory bit of work that we were now doing; and, further, that he held Lytton to be a worthy representative of our true policy. A letter which strikingly illustrates his enthusiasm was written in prospect of the great durbar at Delhi when the Queen was proclaimed Empress of India (January 1, 1877). No man, he thinks (September 6, 1876), ever had before or ever will have again so splendid an opportunity for making a great speech and compressing into a few words a statement of the essential spirit of the English rule, satisfactory at once to ourselves and to our subjects. 'I am no poet,' he says, 'as you are, but Delhi made my soul burn within me, and I never heard "God save the Queen" or saw the Union Jack flying in the heart of India without feeling the tears in my eyes, which are not much used to tears.' He becomes poetical for once; he applies the lines of 'that feeble poem Maud' to the Englishmen who are lying beneath the Cashmire Gate, and fancies that we could say of Hastings and Clive, and many another old hero, that their hearts must 'start and tremble under our feet, though they have lain for a century dead.' Then he turns to his favourite 'Christmas Hymn,' and shows how, with certain easy emendations, Milton's announcement of the universal peace, when the 'Kings sate still with awful eye,' might be applied to the _Pax Britannica_ in India. He afterwards made various suggestions, and even wrote a kind of tentative draft, from which he was pleased to find that Lytton accepted some suggestions. A rather quaint suggestion of a similar kind is discussed in a later letter. Why should not a 'moral text-book' for Indian schools be issued in the Queen's name? It might contain striking passages from the Bible, the Koran, and the Vedas about the Divine Being; with parables and impressive precepts from various sources; and would in time, he thinks, produce an enormous moral effect. In regard to Lytton himself, he was never tired of expressing the warmest approbation. He sympathises with him even painfully during the anxious times which followed the murder of Cavagnari. He remarks that, what with famine and currency questions and Afghan troubles, Lytton has had as heavy a burthen to bear as Lord Canning during the mutiny. He has borne it with extraordinary gallantry and cool judgment, and will have a place beside Hastings and Wellesley and Dalhousie. He will come back with a splendid reputation, both as a statesman and a man of genius, and it will be in his power to occupy a unique position in the political world.

Fitzjames's letters abound with such assurances, which were fully as sincere as they were cordial. I must also say that he shows his sincerity on occasions by frankly criticising some details of Lytton's policy, and by discharging the still more painful duty of mentioning unfavourable rumours as to his friend's conduct as Viceroy. The pain is obviously great, and the exultation correspondingly marked, when Lytton's frank reply convinces him that the rumours were merely the echo of utterly groundless slander. I will only add that the letters contain, as might be expected, some downright expressions of disapproval of some persons, though never without sufficient reason for speaking his mind; and that, on the other hand, there are equally warm praises of the many friends whom he heartily admired. He can never speak warmly enough of Sir John Strachey, Sir Robert Egerton, and others, in whom he believed with his usual fervour. Fitzjames's belief in his friends and his estimate of their talents and virtues was always of the most cordial. I will quote a few phrases from one of his letters, because they refer to a friendship which I shall elsewhere have no opportunity of mentioning. Alfred Lyall, he says, 'is one of the finest fellows I ever knew in my life. If you cultivate him a little you will find him a man of more knowledge, more imagination (in the lofty and eminently complimentary sense of the word), more intelligent interest in the wonders of India, than almost anyone else in the country.' 'I talked to him last Sunday for nearly two hours incessantly on Indian matters and on religion and morals, and left off at last only because I could not walk up and down any longer in common duty to my wife, who was waiting dinner. It will be, as Byron says of Pope, a sin and a shame and a damnation if you and he don't come together. He is the one man (except Maine) I ever met who seemed to me to see the splendour of India, the things which have made me feel what I have so often said to you about it, and which make me willing and eager to do anything on earth to help you.'

I have dwelt at length upon these letters, because they seem to me eminently characteristic, and partly also because they explain Fitzjames's feelings at the time. He was becoming more and more conscious of his separation from the Liberal party. 'Why are you,' asked one of his friends, who was a thorough partisan, 'such a devil in politics?' It was because he was becoming more and more convinced that English political life was contemptible; that with some it was like a 'cricket-match'--a mere game played without conviction for the sake of place or honour; that even where there were real convictions, they were such as could be adapted to the petty tastes of the vulgar and commonplace part of society; and that it was pitiable to see a body of six or seven hundred of the ablest men in the country occupied mainly in thwarting each other, making rational legislation impossible, and bowing more and more before the 'sons of Zeruiah,' who would be too strong for them in the end. For behind all this was arising a social and religious revolution, the end of which could be foreseen by no one. I dread, he says, the spread of my own opinions. The whole of society seems to be exposed to disintegrating influences. Young men have ceased to care for theology at all. He quotes a phrase which he has heard attributed to a very clever and amiable undergraduate whose tutor had spoken to him about going to chapel. If, said the pupil, there be really such a deity as you suppose, it appears to me that to praise him would be impertinent and to pray to him superfluous. What is to happen when such opinions are generally spread, and when the populace discovers that their superiors do not really hold the creeds which they have declared to be essential to society?

IX. APPOINTMENT TO A JUDGESHIP

Meanwhile, Fitzjames had been receiving various proofs of rising reputation. In January 1877 he was made K.C.S.I. He expresses his pleasure at having the name of India thus 'stamped upon him'; and speaks of the very friendly letter in which Lord Salisbury had announced the honour, and of his gratitude for Lord Lytton's share in procuring it. The University of Oxford gave him the honorary D.C.L. degree in 1878. He was member of a Commission upon fugitive slaves in 1876, and of a Commission upon extradition in 1878.[175] He was also a member of the Copyright Commission appointed in October 1875, which reported in 1878. He agreed with the majority and contributed a digest of the law of copyright. He had occasional reasons to expect an elevation to the bench; but was as often disappointed. Upon the death of Russell Gurney (May 31, 1878) there was some talk of his becoming Recorder of London; but he did not much regret the speedy disappearance of this prospect, though it had its attractions. He was three times (1873, 1877, and 1878) appointed to act as judge upon circuit. When at last he was entrusted with the preparation of the Criminal Code in 1877, the Attorney-General expressed the opinion that a satisfactory execution of the task would entitle him to a judgeship, but could not give any definite pledge. When, however, in July 1878, it was determined to appoint a Commission to prepare a code for Parliament, Fitzjames said that he would be unable to undertake a laborious duty which would make practice at the bar impossible for the time, without some assurance of a judgeship. The Chancellor thereupon wrote a letter, which, though an explicit promise could not be made, virtually amounted to a promise. In accordance with this he was appointed on January 3, 1879, to a judgeship which had become vacant by the resignation of Sir Anthony Cleasby. A notorious journalist asserted that the promise had been made on consideration of his writing in the papers on behalf of the Indian Government. The statement is only worth notice as an ingenious inversion of the truth. So far from requiring any external impulse to write on Lytton's behalf, Fitzjames could hardly refrain from writing when its expediency was doubtful. When the occasion for a word in season offered itself, hardly any threats or promises could have induced him to keep silence. 'Judge or no judge,' he observes more than once, 'I shall be forced to write' if certain contingencies present themselves.

I give the letter in which he announced his appointment to his sister-in-law (January 4, 1879):--'My dearest Emily, I write to tell you that I am out of all my troubles. Cleasby has unexpectedly resigned, and I am to succeed him. I know how this news will delight you, and I hasten to send it, though I hope to see you to-morrow. It gives me a strange, satisfied, and yet half-pathetic feeling. One great battle is won, and one great object obtained; and now I am free to turn my mind to objects which have long occupied a great part of it, so far as my leisure will allow. I hope I have not been anxious to any unworthy or unmanly extent about the various trials which are now over.

'In such moments as this, one's heart turns to those one loves. Dearest Emily, may all good attend you, and may I and mine be able to do our shares towards getting you the happiness you so pre-eminently deserve. I don't know what to wish for; but I wish for all that is best and most for your good in the widest sense which the word can have. Ever your loving brother, J. F. S.'

* * * * *

In giving the news to Lord Lytton, he observes that he feels like a man who has got into a comfortable carriage on a turnpike road after scrambling over pathless mountain ranges. His business since his return has been too irregular and capricious to allow him to feel himself at his ease. That being over, he is resolved to make the bench a 'base of operations' and 'not a mere shelf.'

The hint about 'leisure' in the letter to Lady Egerton will be understood. Leisure in his mouth meant an opportunity for doing more than his duties required. He calculated on a previous occasion that, if he were a judge, he should have at his disposal three or, by good management, four working hours at his own disposal. I find him, characteristically enough, observing in an article of about the same date that the puisne judges have quite enough work without imposing any extra labour whatever upon them. But he tacitly assumed that he was to carry a double burthen. How he turned his time to account will appear directly. I need only say here that he unfeignedly enjoyed his new position. He often said that he could imagine nothing more congenial to all his wishes. He observes frequently that the judicial work is the only part of our administrative system which is still in a thoroughly satisfactory state. He felt as one who had got into a safe place of refuge, from which he could look out with pity upon those who were doomed to toil and moil, in an unhealthy atmosphere, as politicians, public officials, and journalists. He could learn to be philosophical even about the fate of his penal code.

NOTE

***My nephew, Sir Herbert Stephen, has kindly sent me the enclosed note in regard to my brother's life in Ireland.

L. S.

In 1869 my father took for the long vacation a house called
Dromquina, on the northern bank of the Kenmare River, about three
miles from Kenmare. The 'river' is an arm of the sea, something
like forty miles long, and at Dromquina, I suppose, not above half
a mile wide. He had heard of the place by reason of his friend, Mr.
Froude, living at that time at Lord Lansdowne's house, Derreen, in
Killmakalogue Harbour, about fifteen miles lower down on the
opposite shore. In a thickly populated country this would not
constitute a near neighbourhood, but we made excursions to Derreen,
either in a boat or in Mr. Froude's yacht, several times in the
course of the summer. It is in the neighbourhood of the Kenmare
River and Bantry Bay that Mr. Froude laid the scene of 'The Two
Chiefs of Dunboy.'

Dromquina stands close to the water's edge, and we had several
boats and the services of some half-dozen fishermen at our command.
My father had learnt to row at Eton, and during this summer he
always took an oar--and did good service with it--upon our frequent
excursions on the water. I remember, by the way, that many years
later, after he had been for some time a judge, he was one day
rowing in a boat with a party of friends on the Thames, and was
much gratified by my telling him what hard work I had found it,
while steering, to keep the boat straight, because he pulled so
much harder than the man who was rowing bow, a sturdy athlete,
twenty years his junior, but no waterman.

He liked the life at Dromquina so much that in 1873, after his
return from India, he took the Bishop of Limerick's house,
Parknasilla, in Sneem Harbour, just opposite Derreen. That year, if
I remember right, he took some shooting, to which we had to drive a
considerable distance. In one year or the other I went out shooting
with him two or three times. I do not think he ever had any
shooting later: though, considering how little practice he can have
had, he was a decidedly good shot. The country was rough, and the
bags, though not heavy in quantity--we were lucky if we saw ten
brace of grouse--presented a rather extensive variety of kind.
During these two summers my father indulged himself freely in his
favourite amusement of taking long walks, but also did a good deal
of rowing and sailing. He had had my brothers and me taught to swim
in a previous summer at the sea-side, and at Dromquina decided that
we ought to be able to swim confidently in our clothes. In order to
test our possession of this accomplishment, he one day took us out
himself in a boat, and told me to sit on the gunwale, after which
he artfully engaged me in conversation until he saw that I was not
expecting my plunge, when he suddenly shoved me overboard. We all
passed the ordeal with credit.

In 1873 he meditated building a house on the Kenmare River, but in
the course of that summer he went to visit Sir John Strachey, who
was then living at Anaverna House, at Ravensdale in County Louth.
The Stracheys left it not long after, and we went there for the
first time in 1875. Some years later my father took a lease of it,
and there he spent every long vacation till 1891 inclusive, and the
greater part of 1892.

For this place my father in particular, as well as his family
generally, had from the first a strong affection. The house stands
rather high, on the extreme southern slope of the Mourne Mountains,
just within the border of the county of Louth and the province of
Leinster. Behind and above the house to the north, the 'mountains'
(moors varying in height from 1,000 to 2,700 feet) stretch for many
miles, enclosing the natural harbour known as Carlingford Lough.
Southwards there is a view across a comparatively level plain as
far as the Wicklow Mountains, just beyond Dublin, and about sixty
miles away. The sea is visible at no great distance on the east,
and on fine days we could always see the Isle of Man, about eighty
miles to the north-east, from any of several hill-tops within an
hour's walk of the house. My father was therefore able to take to
his heart's content the long walks that had always been his
favourite amusement. He also devoted himself with the greatest
enthusiasm to the improvement of the house and grounds. For many
years before the Stracheys' short tenancy it had been unoccupied,
and the grounds--of which there were about seventy acres--were at
first very much overgrown, especially with laurels, which, when
neglected, grow in that country in almost disgusting luxuriance. My
father therefore occupied himself a good deal with amateur
forestry, and became, considering that he first turned his
attention to the subject at the age of forty-six, a rather expert
woodsman. A good deal of tree-felling was necessary, both in the
interest of the trees and for the improvement of the views from the
house and its immediate neighbourhood. My father had a Canadian
axe, given to him by Frederick Gibbs, of which he was extremely
fond, and with which he did a great deal of work. He was never
reduced to cutting down a tree merely for exercise, but always
first satisfied himself with much care that its removal would be an
improvement. Another point in his wood-cutting that I always
admired was that, when the more amusing part of the
operation--which is cutting the tree down--was over, he invariably
took personally his full share of the comparatively uninteresting
work of sawing up the trunk, and disposing in an orderly manner of
the branches. He also took great pains to cut his trees as close to
the ground as possible, so as not to sacrifice the good timber at
the butt, or leave a tall or ragged stump to disfigure the ground
afterwards.

Another labour in which he took much interest was the making of
paths through a little wood running up the hill-side behind the
house, and the engineering of a stream which descended through it,
and, being flooded two or three times every year, required a good
deal of management, the more so as the house was supplied by it
with water through an artificial streamlet made for the purpose. In
these pursuits my father was always assisted by the village
post-master, an old man named Morton, of picturesque appearance and
conversation, and the consultations between the two used to be full
of interest. Morton spoke with a strong brogue, and combined
several other pursuits with that of post-master, the universality
of his aptitudes making him an interesting companion, and my father
had a great regard for him. He died a few months ago, being then, I
believe, over eighty years of age.

Another out-door amusement that my father enjoyed was shooting at a
mark with a Snider rifle. The nature of the grounds made it easy to
get a safe hundred yards' range within three minutes' walk of the
front door, and three or four hundred yards by going a little
farther. We practised in this way pretty often, and I think the
judge was, on the whole, a better shot than any of his sons. In the
year 1883 the household was increased, a good deal to my father's
annoyance, by two policemen. At the Liverpool summer Assizes he had
tried a gang of dynamiters, I think for treason-felony. They, or
most of them, were convicted and sentenced to long terms of penal
servitude. Some of my father's friends, not understanding that if
anybody wanted to murder him it was quite as likely to be done, and
quite as easy to do, in England as in Ireland, and perhaps
entertaining the fantastic idea that the population of Louth had
more regard for dynamiters than the population of London, suggested
to the Irish Government that he was in some danger. The only thing
that could be done was to order police protection, and this Sir
George Trevelyan did. Accordingly two constables took up their
abode in a room which happened to be available in the stable-yard,
and mounted guard all day over the hall-door, following my father
wherever he went during the day. Though their continued escort
troubled him a good deal, there was no escape from it, and he got
used to it to some extent. He made great friends with the men
personally--like other people, he had the highest admiration for
the force to which they belonged--and sometimes challenged them to
a shooting match, either with their own rifles or with his, and was
much gratified when he got the better of them.

With the people generally he became after a time extremely popular.
I say after a time, because the inhabitants of that country do not,
any more than country people in most parts of England, take
strongly to strangers before they know anything about them. They
never showed the least disposition to incivility, but for the first
year or two my father had not many acquaintances among them. Later
he came to be well known, and when he was taking his walks in the
fields or on the mountains, there was hardly a man for a good many
miles round who did not hail him by name. I have known them shout
across two fields, 'It's a fine evening, Sir James'; and when they
did so he invariably stopped and entered into conversation about
the crops and the weather, or other topics of universal interest.
With some of them whom he had frequently met while walking, or whom
he had helped with advice or small loans (about the repayment of
which they were, to his great delight, singularly honest), he was
on particularly friendly terms, and made a point of visiting them
in their houses at least once every year. They have remarkably good
manners, and attracted him particularly by their freedom from
awkwardness, and their combination of perfect politeness with
complete self-respect. I have reason to know that they have not
forgotten him.

He once made a short expedition with one of my sisters to Achill,
Clifden, and Galway. They stayed two nights at Achill, which
sufficed for him to make friends with Mr. Sheridan, the landlord of
the inn there. They never met again, but there were communications
between them afterwards which showed that my father retained as
long as he lived a kindly recollection of the people he had met in
that particular holiday.

It was naturally during the summer holidays, and when one of us
used to go circuit as his marshal, that my brothers and I saw most
of him. I think that during the years of his judgeship I came to
know all his opinions, and share most of them. One result of his
strong memory, and the immense quantity of talking and reading that
he had done in his life, was that he was never at a loss for
conversation. But to attempt to give an idea of what his intimate
talk was like when he conversed at his ease about all manner of men
and things is not my business. It was, of course, impossible to
live in the house with him without being impressed by his
extraordinary industry. The mere bulk of the literary work he did
at Anaverna would make it a surprising product of fifteen long
vacations, and there was not a page of it which had not involved an
amount of arduous labour which most men would regard as the
antithesis of holiday-making. This, however, as the present
biography will have shown, was his normal habit, and these notes
are designed to indicate that it did not prevent him from enjoying,
when away from books and pens and ink, a happy and vigorous life.

FOOTNOTES:

[Footnote 119: The first volume of his _Civilization in Europe_ appeared in 1857.]

[Footnote 120: Mill elaborately argues that the social sciences are possible precisely because the properties of the society are simply the sum of the properties of the individuals of which it is composed. His view of the importance of this theory is given in his _Autobiography_ (first edition), p. 260. And see especially his _Logic_, Bk. vi. chap. vii.]

[Footnote 121: _Liberty, Equality, Fraternity_, p. 212. (My references are to the second edition.)]

[Footnote 122: P. 17.]

[Footnote 123: P. 10. This is almost literally from Bentham, who gives several similar classifications of 'sanctions.']

[Footnote 124: P. 19.]

[Footnote 125: P. 183.]

[Footnote 126: P. 184.]

[Footnote 127: Pp. 32, 112.]

[Footnote 128: P. 244.]

[Footnote 129: Pp. 193, 195.]

[Footnote 130: P. 30.]

[Footnote 131: P. 239.]

[Footnote 132: P. 184.]

[Footnote 133: P. 96.]

[Footnote 134: P. 140.]

[Footnote 135: P. 139.]

[Footnote 136: P. 162.]

[Footnote 137: P. 177.]

[Footnote 138: P. 169.]

[Footnote 139: P. 58.]