Chapter VI: Judicial Career (1)

I. HISTORY OF CRIMINAL LAW

The Commission upon the Criminal Code occupied Fitzjames for some time after his appointment to a judgeship. His first appearance in his new capacity was in April 1879 at the Central Criminal Court, where he had held his first brief, and had made his first appearance after returning from India. He had to pass sentence of death upon an atrocious scoundrel convicted of matricide. A few months later he describes what was then a judge's business in chambers. It consists principally, he says, in making a number of small orders, especially in regard to debtors against whom judgment has been given. 'It is rather dismal, and shows one a great deal of the very seamy side of life.... You cannot imagine how small are the matters often dealt with, nor how important they often are to the parties. In this dingy little room, and under the most undignified circumstances, I have continually to make orders which affect all manner of interests, and which it is very hard to set right if I go wrong. It is the very oddest side of one's business. I am not quite sure whether I like it or not. At any rate it is the very antithesis of "pomp and 'umbug."'

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

The last phrase alludes to a conversation overheard at the assizes between two workmen. One of them described the judge, the late Lord Chief Justice Cockburn, as a 'cheery swine' who, as he affirmed, had gone to church and preached a sermon an hour and a half long. The sheriff, too, was there in a red coat, and had no doubt got his place by interest. 'Pomp and 'umbug I calls it, and we poor chaps pays for it all.' Fitzjames heartily enjoyed good vernacular embodiments of popular imagination. He admitted that he was not quite insensible to the pleasures of pomp and humbug as represented by javelin men and trumpeters. His work, as my quotation indicates, included some duties that were trivial and some that were repulsive. In spite of all, however, he thoroughly enjoyed his position. He felt that he was discharging an important function, and was conscious of discharging it efficiently. There are few greater pleasures, certainly few were greater to him, than the exercise of a craft which one has so mastered as to have lost all the embarrassment of a beginner. He felt that he was not only up to his duties but had superfluous energy to direct elsewhere. The pleasantest hours of the day were those before and after business hours, when he could devote himself to his literary plans.

In some of his letters to Lord Lytton about the time of his appointment, I find unusual confessions of weariness. He admits that there is a difference between forty and fifty; and thinks he has not quite the old elasticity. I believe, however, that this refers to the worry caused by his work on the Commission, and the daily wrangle over the precise wording of the code, while the judgeship was not yet a certainty. At any rate there is no more mention of such feelings after a time; and in the course of the summer he was once more taking up an important literary scheme which would have tasked the energies of the youngest and strongest. He seems to have contemplated for a time a series of books which should cover almost the whole field of English law and be a modern substitute for Blackstone. The only part of this actually executed--but that part was no trifle--was another book upon the English Criminal Law. It was, in truth, as he ventured to say, 'a remarkable achievement for a busy man to have written at spare moments.' We must, of course, take into account his long previous familiarity with the law. The germ of the book is to be found in the Essay of 1857; and in one way or other, as a writer, a barrister, a codifier, and a judge, he had ever since had the subject in his mind. It involved, however, along with much that was merely recapitulation of familiar topics, a great amount of laborious investigation of new materials. He mentions towards the end of the time that he has been working at it for eight hours a day during his holiday in Ireland. The whole was finished in the autumn of 1882, and it was published in the following spring.

Fitzjames explains in his preface how the book had come to be written. He had, as I have said, laid aside the new edition of the original 'View' in order to compile the 'Digest,' which he had felt to be its necessary complement. I may add that he also wrote with the help of his eldest son--now Sir Herbert Stephen--a 'Digest of the Law of Criminal Procedure,' which was published contemporaneously with the 'History.' The 'Digest' had led to the code and to the Commission. When the Commission was over, he returned to the proposed new edition of the 'View.' But Fitzjames seems to have had an odd incapacity for producing a new edition. We, who call ourselves authors by profession, are sometimes tempted, and we do not always resist the temptation, to describe a book as 'revised and corrected' when, in point of fact, we have added a note or two and struck out half a dozen obvious misprints. When Fitzjames said that his earlier treatise might be described as 'in some sense a first edition' of the later, he meant that he had written an entirely new book upon a different aspect of the old subject. The 'View' is in one volume of about 500 pages, nearly a third of which (153 pages) consists of reports of typical French and English trials. These are reprinted in the 'History.' Of the remainder, over 100 pages are devoted to the Law of Evidence, which is not discussed in the 'History.' Consequently the first 233 pages of the 'View' correspond to the whole of the three volumes of the 'History,' which, omitting the reported trials given in both books, contain 4,440 pages. That is, the book has swelled to six times the original size, and I do not think that a single sentence of the original remains. With what propriety this can be called a 'new edition' I will not try to decide.

The cause of this complete transformation of the book is significant. Fitzjames, in his preface, observes that much has been said of the 'historical method' of late years. It has, he agrees, 'thrown great light upon the laws and institutions of remote antiquity.' Less, however, has been done for modern times; although what is called 'constitutional history' has been 'investigated with admirable skill and profound learning.' As I have noticed, his original adherence to the theories of Bentham and Austin had tended to make him comparatively indifferent to the principles accepted and illustrated by the writings of Maine. He had looked at first with some doubts upon those performances and the brilliant generalisations of 'Ancient Law' and its successors. He quotes somewhere a phrase of his friend Bowen, who had said that he read Maine's works with the profoundest admiration for the genius of the author, but with just a faint suspicion somewhere in the background of his mind that the results might turn out to be all nonsense. Fitzjames had at any rate no prepossessions in favour of the method, and may be said to have been recruited, almost in spite of himself, by the historical school. But it was impossible for anyone to discuss the peculiarities of English Criminal Law without also being plunged into historical investigations. At every point the system is determined by the circumstances of its growth; and you can no more account for its oddities or its merits without considering its history than you can explain the structure of a bat or a seal without going back to previous forms of life. The growth of the criminal law, as Fitzjames remarks, is closely connected with the development of the moral sentiments of the community: with all the great political and social revolutions and with the changes of the ecclesiastical constitution and the religious beliefs of the nation. He was accordingly drawn into writing a history which may be regarded as complementary to the great constitutional histories of Hallam and Dr. Stubbs. He takes for granted many of their results, and frankly acknowledges all his obligations. But he had also to go through many investigations of his own special topics, and produced a history which, if I am not mistaken, is of the highest interest as bringing out certain correlative processes in the legal development of our institutions, which constitutional historians naturally left in the background.

His early work upon the similar book suggested by his father had made him more or less familiar with some of the original sources. He now had to plunge into various legal antiquities, and to study, for example, the six folio volumes called _Rotuli Parliamentorum_; to delve in year-books and old reports and the crabbed treatises of ancient lawyers, and to consider the precise meaning and effect of perplexed and obsolete statutes. He was not an antiquary by nature, for an antiquary, I take it, is one who loves antiquity for its own sake, and enjoys a minute inquiry almost in proportion to its minuteness. Fitzjames's instinct, on the contrary, was to care for things old or new only so far as they had some distinct bearing upon living problems of importance. I could not venture to pronounce upon the value of his researches; but I am happily able to give the opinion of Professor Maitland, who can speak as one having authority. 'About the excellence of your brother's History of English Criminal Law,' he writes to me, 'there can, I suppose, be but one opinion among those who are competent to speak of such a matter. But I think that he is scarcely likely to get all the credit that is due to him for certain parts of the work which are especially interesting to me, and which I have often read--I mean those parts which deal with the middle ages. They seem to me full of work which is both good and new. I take it that he had no great love for the middle ages, and wrote the chapters of which I am speaking as a disagreeable task. I do not think that he had from nature any great power of transferring himself or his readers into a remote age, or of thinking the thoughts of a time very different from that in which he lived: and yet I am struck every time I take up the book with the thoroughness of his work, and the soundness of his judgments. I would not say the same of some of his predecessors, great lawyers though they were, for in dealing with mediæval affairs they showed a wonderful credulity. To me it seems that he has often gone right when they went wrong, and that his estimate of historical evidence was very much sounder than theirs. The amount of uncongenial, if not repulsive labour that he must have performed when he was studying the old law-books is marvellous. He read many things that had not been used, at all events in an intelligent way, for a very long time past; and--so I think, but it is impertinent in me to say it--he almost always got hold of the true story.'

To write three thick volumes involving such inquiries within three years and a half; and to do the work so well as to deserve this praise from an accomplished legal antiquary, was by itself an achievement which would have contented the ambition of an average author. But when it is remembered that the time devoted to it filled only the interstices of an occupation which satisfies most appetites for work, and in which he laboured with conscientious industry, I think that the performance may deserve Professor Maitland's epithet, 'marvellous.' He was greatly interested in the success of the book, though his experience had not led him to anticipate wide popularity. It was well received by competent judges, but a book upon such a topic, even though not strictly a 'law-book,' can hardly be successful in the circulating-library sense of the word. Fitzjames, indeed, had done his best to make his work intelligible to the educated outsider. He avoided as much as possible all the technicalities which make the ordinary law-book a hopeless bewilderment to the lay reader, and which he regarded on all grounds with natural antipathy. The book can be read, as one outsider at least can testify, with strong and continuous interest; though undoubtedly the reader must be prepared to endure a little strain upon his attention.

There are, indeed, certain drawbacks. In spite of the abundant proofs of industry and knowledge, there are indications that a little more literary polish might have been advantageous. Some of the materials are so crabbed that hardly any skill could have divested them of their natural stiffness. As Professor Maitland's remarks indicate, Fitzjames did not love the old period for its own sake. He liked, as I have noticed, general histories, such as Gibbon's, which give a bird's-eye view of long periods and, in a sense, codify a great mass of knowledge. But he had not the imaginative power of reconstructing ancient states of society with all their picturesque incidents which was first exemplified by Scott. He was always interested in books that reveal human nature, and says in the 'History,' for example, that some of the State Trials are to him 'much more impressive than poetry or fiction.'[176] But the incidents do not present themselves to him, as they did to Scott or to Macaulay, as a series of vivid pictures with all their material surroundings. He shrank, more advisedly, perhaps, from another tendency which has given popularity to a different school. Though he gradually became an admirer of Maine's generalisations, founded upon cautious inquiries and recommended by extraordinary literary skill, his own intellectual aptitudes did not prompt him to become a rival. Briefly, his attitude of mind was in the strictest sense judicial. He asks always for distinct proofs and definite issues. He applies his canons of evidence to every statement that comes up, and, after examining it as carefully as he can, pronounces his conclusions, unequivocally but cautiously. He will not be tempted to a single step beyond the solid ground of verifiable fact. This undoubtedly gives confidence to the tolerably patient reader, who learns to respect the sobriety and impartiality of his guide. But it also fails to convince the hasty reader that he has seen the event precisely as it happened, or that he is in possession of a philosophical key to open all historical problems. I do not wish for a moment to underrate the value of work which has different qualities; but I do think that Fitzjames's merits as a solid inquirer may be overlooked by readers who judge a writer by the brilliance of his pictures and the neatness of his theories.

The book covers a very large field. A brief indication of its general plan will show how many topics are more or less treated. He begins with a short account of the Roman Criminal Law; and then of English law before the Conquest. He next takes up the history of all the criminal courts, including the criminal jurisdiction of the extraordinary courts, such as Parliament and the Privy Council. This is followed by a history of the procedure adopted in the courts, tracing especially the development of trial by jury. The second volume opens a discussion of certain principles applicable to crime in general, such as the theory of responsibility. Next follows a history of the law relating to crime in general. He then takes up the history of the principal classes of crime, considering in separate chapters offences against the state, treason, sedition, and seditious libels; offences against religion, offences against the person (this opens the third volume), especially homicide; offences against property, such as theft and forgery; offences relating to trade and labour and 'miscellaneous offences.' This finishes the history of the law in England, but he adds an account of the extension of the English criminal law to India; and this naturally leads to an exposition of his views upon codification. The exposition is mainly a reproduction of the report of the Commission of 1878-9, which was chiefly his own composition. Finally, the old reports of trials, with a few alterations, are appended by way of pointing the contrast between the English and the French methods, upon which he has already introduced some observations.

Mr. Justice Stephen's book, said Sir F. Pollock in a review of the day, is 'the most extensive and arduous' undertaken by any English lawyer since the days of Blackstone. So large a framework necessarily includes many subjects interesting not only to the lawyer but to the antiquary, the historian, and the moralist; and one effect of bringing them together under a new point of view is to show how different branches of inquiry reciprocally illustrate each other. The historian of the previous generation was content to denounce Scroggs and Jeffreys, or to lament the frequency of capital offences in the eighteenth century, and his moral, especially if he was a Whig, was our superiority to our great-grandfathers. There was plenty of room for virtuous indignation. But less attention was generally paid to the really interesting problems, how our ancestors came to adopt and to be content with these institutions; what precisely the institutions were, and how they were connected with other parts of the social framework. When an advance is made towards the solution of such problems, and when we see how closely they connect themselves with other problems, social, ecclesiastical, and industrial, as well as political, we are making also a step towards an intelligent appreciation of the real meaning of history. It is more than a collection of anecdotes, or even, as Carlyle put it, than the essence of a multitude of biographies; it becomes a study of the growth of an organic structure; and although Fitzjames was reluctant, even to excess, to put forward any claim to be a philosophical historian, a phrase too often applied to a dealer in 'vague generalities,' I think that such work as his was of great service in providing the data for the truly philosophical historian who is always just on the eve of appearing.

I venture to touch upon one or two points with the purpose of suggesting in how many ways the history becomes involved in topics interesting to various classes of readers, from the antiquary to the student of the development of thought. The history of trial by jury had, of course, been already unravelled by previous historians. Fitzjames was able, however, to produce quaint survivals of the old state of things, under which a man's neighbours were assumed to be capable of deciding his guilt or innocence from their own knowledge. There was the Gibbet Law of Halifax, which lasted till the seventeenth century. The jurors might catch a man 'handhabend, backbarend, or confessand,' with stolen goods worth 13-1/2_d._ in his possession and cut off his head on a primitive guillotine without troubling the judges. Even in 1880 there existed (and I presume there still exists) a certain 'liberty of the Savoy,' under the shadow of the new courts of justice, which can deal with keepers of disorderly houses after the same fashion.[177] From this primitive institution Fitzjames has to grope his way by scanty records to show how, during the middle ages, the jury ceased to be also witnesses and became judges of fact informed by witnesses. Emerging into the period of the Tudors and the early Stuarts, he comes to trials full of historic interest; to the dramatic scenes in which Sir Thomas More, and Throckmorton, and Raleigh played their parts. He has to show how in a period of overpowering excitement, when social organisation was far weaker, and the power of the rulers more dependent upon personal vigour, the Government dealt out sharp and short justice, though juries still had to be cajoled or bullied; how the system was influenced by the growth of the Star Chamber, with a mode of procedure conforming to a different type; and how, when the tyranny of such courts had provoked indignation, they were swept away and left to the jury its still undisputed supremacy. From the time when honest John Lilburne wrangled successfully against Cromwell's judges, it began to assume a special sanctity in popular belief. Then we come to the Popish plots and the brutalities of Scroggs and Jeffreys, when the jury played a leading part, though often perverted by popular or judicial influence, and without any sound theory of evidence. The revolution of 1688 swept away the grosser abuses; the administration of justice became decorous and humane; a spirit of fair play showed itself; the laws of evidence were gradually worked out; and, instead of political tragedies, we have a number of picturesque cases throwing the strangest gleams of light into all manner of odd dark social corners. Within the last century, finally, the mode of investigating crime has become singularly dignified, impartial, and substantially just. A survey of this long history, bringing out at every step picturesque incidents and curious illustrations of social and political constitutions, lights up also the real merits and defects of the existing system. Fitzjames, with much fuller knowledge and longer experience, adheres substantially to his previous opinion. He has not, of course, the old-fashioned worship for the 'palladium of our liberties'; jurors could be 'blind and cruel' under Charles II., and as severe as the severest judge under George III. They are not more likely to do justice than a single judge. But the supreme advantages of placing the judge in his proper position as mediator and adviser, and of taking the public into confidence as to the perfect impartiality of the proceedings, outweigh all objections.

Again we have the curious history of the 'benefit of clergy.' Before 1487, a man who could read and write might commit murder as often as he pleased, subject to an indefinite chance of imprisonment by the 'ordinary.' At a later period, he could still murder at the cost of having M branded on the brawn of his thumb. But women and men who had married two wives or one widow did not enjoy this remarkable privilege. The rule seems as queer and arbitrary as any of the customs which excite our wonder among primitive tribes. The explanation, of course throws a curious light upon the struggle between Church and State in the middle ages; and in the other direction helps to explain the singularities of criminal legislation in the eighteenth century. Our grandfathers seem to have thought that felony and misdemeanour were as much natural classes as mammal and marsupial, and that all that they could do was to remove the benefit of clergy when the corresponding class of crime happened to be specially annoying. They managed to work out the strange system of brutality and laxity and technicality in which the impunity of a good many criminals was set off against excessive severity to others.

The spiritual courts, again, give strange glimpses into the old ecclesiastical system. The records show that from the time of the Conquest to that of the Stuarts a system prevailed which was equivalent to the Spanish Inquisition, except that it did not use torture. It interfered with all manner of moral offences such as that of Eleanor Dalok, a 'communis skandalizatrix,' who 'utinizavit' (supposed to be a perfect of _utinam_) 'se fuisse in inferno quamdiu Deus erit in cælo, ut potuisset uncis infernalibus vindicare se de quodam Johanne Gybbys mortuo.' The wrath provoked by this and more vexatious interferences makes intelligible the sweeping away of the whole system in 1640. With this is connected the long history of religious persecution, from the time when (1382) the clergy forged an act of Parliament to give the bishops a freer hand with heretics. Strange fragments and shadows of these old systems still remain; and according to Fitzjames it would still in strict law be a penal offence to publish Renan's 'Life of Christ.'[178] The attempt to explain the law as referring to the manner, not the matter, of the attack is, he thinks, sophistical and the law should be simply repealed. A parallel case is that of seditious libels; and there is a very curious history connected with the process by which we have got rid of the simple, old doctrine that all attacks upon our rulers, reasonable or otherwise, were criminal.

These are some of many cases in which Fitzjames has to give a side of history generally left in comparative obscurity. Upon some matters, as, for example, upon the history of impeachments, he thought that he had been able to correct or clear up previous statements. I have only wished to show how many interesting topics come into his plan; and to me, I confess, the most interesting of all is the illustration of the amazing nature of the so-called intellectual process involved. People seem to begin by making the most cumbrous and unreasonable hypotheses possible, and slowly and reluctantly wriggling out of them under actual compulsion. That is not peculiar to lawyers, and may have a meaning even in philosophy.

Fitzjames's comments upon the actual state of the law brings him to many important ethical problems. The discussion of the conditions of legal responsibility is connected with that of moral responsibility. Fitzjames once more insists upon the close connection between morality and law. 'The sentence of the law,' he says, 'is to the moral sentiment of the public what a seal is to hot wax. It converts into a permanent final judgment what might otherwise be a transient sentiment.' The criminal law assumes that 'it is right to hate criminals.' He regards this hatred as a 'healthy natural feeling'; for which he again quotes the authority of Butler and Bentham. The legal mode of expressing resentment directs it to proper applications in the same way as the law of marriage gives the right direction to the passion of love. From his point of view, as I have already indicated, this represents the necessary complement to the purely utilitarian view, which would make deterrence the sole legitimate end of punishment. The other, though generally consistent, end is the gratification of the passion of moral indignation.[179]

Hence arise some difficult questions. Fitzjames insists, in agreement with Bentham, and especially with James Mill, that the criminal law is concerned with 'intentions,' not with 'motives.' All manner of ambiguities result from neglecting this consideration. The question for the lawyer is, did the prisoner mean to kill?--not, what were his motives for killing? The motives may, in a sense, have been good; as, for example, when a persecutor acts from a sincere desire to save souls. But the motive makes no difference to the sufferer. I am burnt equally, whether I am burnt from the best of motives or the worst. A rebel is equally mischievous whether he is at bottom a patriot or an enemy of society. The legislator cannot excuse a man because he was rather misguided than malignant. It is easy to claim good motives for many classes of criminal conduct, and impossible to test the truth of the excuse. We cannot judge motives with certainty. The court can be sure that a man was killed; it can be sure that the killing was not accidental; but it may be impossible to prove that the killer had not really admirable motives.

But if so, what becomes of the morality? The morality of an act is of course affected (if not determined) by the motive.[180] We can secure, no doubt, a general correspondence. Crimes, in nine cases out of ten, are also sins. But crimes clearly imply the most varying degrees of immorality: we may loathe the killer as utterly vile, or be half inclined very much to applaud what he has done. The difficulty is properly met, according to Fitzjames, by leaving a wide discretion in the hands of the judge. The jury says the law has been broken; the judge must consider the more delicate question of the degree of turpitude implied. Yet in some cases, such as that of a patriotic rebel, it is impossible to take this view. It is desirable that a man who attacks the Government should attack it at the risk of his life. Law and morality, therefore, cannot be brought into perfect coincidence, although the moral influence of law is of primary importance, and in the normal state of things no conflict occurs.

There are certain cases in which the difficulty presents itself conspicuously. The most interesting, perhaps, is the case of insanity, which Fitzjames treats in one of the most elaborate chapters of his book. It replaces a comparatively brief and crude discussion in the 'View,' and is conspicuously candid as well as lucid. He read a great many medical treatises upon the subject, and accepts many arguments from an opponent who had denounced English judges and lawyers with irritating bitterness. There is no difficulty when the madman is under an illusion. Our ancestors seem to have called nobody mad so long as he did not suppose himself to be made of glass or to be the Devil. But madness has come to include far more delicate cases. The old lawyers were content to ask whether a prisoner knew what he was doing and whether it was wrong. But we have learnt that a man may be perfectly well aware that he is committing a murder, and know murders to be forbidden in the Ten Commandments, and yet unable to refrain from murder. He has, say the doctors, homicidal monomania, and it is monstrous to call in the hangman when you ought to be sending for the doctor. The lawyer naturally objects to the introduction of this uncertain element, which may be easily turned to account by 'experts' capable of finding symptoms of all kinds of monomania. Fitzjames, however, after an elaborate discussion, decides that the law ought to take account of mental disease which operates by destroying the power of self-control. The jury, he thinks, should be allowed to say either 'guilty,' or 'not guilty on the ground of insanity,' or 'guilty, but his power of self-control was diminished by insanity.'[181] I need not go into further detail, into a question which seems to be curiously irritating to both sides. I am content to observe that in the earlier book Fitzjames had been content with the existing law, and that the change of opinion shows very careful and candid consideration of the question, and, as I think, an advance to more moderate and satisfactory conclusions.

The moral view of the question comes out in other relations. He intimates now and then his dissatisfaction with the modern sentimentalism, his belief in the value of capital and other corporal punishments, and his doubt whether the toleration of which he has traced the growth can represent more than a temporary compromise. But these represent mere _obiter dicta_ which, as he admits, are contrary to popular modes of thought. He is at least equally anxious to secure fair play for the accused. He dwells, for example, upon the hardships inflicted upon prisoners by the English system of abstinence from interrogation. The French plan, indeed, leads to cruelty, and our own has the incidental advantage of stimulating to the search of independent evidence. 'It is much pleasanter,' as an Indian official remarked to him by way of explaining the practice of extorting confessions in India, 'to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence.'[182] Fitzjames, however, frequently remarked that poor and ignorant prisoners, unaccustomed to collect their ideas or to understand the bearing of evidence, are placed at a great disadvantage by never having stated their own cases. The proceedings must pass before them 'like a dream which they cannot grasp,' and their counsel, if they have counsel, can only guess at the most obvious line of defence. He gives instances of injustice inflicted in such cases, and suggests that the prisoners should be made competent witnesses before both the magistrates and the judge. This would often enable an innocent man to clear up the case; and would avoid the evils due to the French system.[183]

Without going further into this or other practical suggestions, I will quote his characteristic conclusion. The Criminal Law, he says, may be regarded as an expression of the second table of the Ten Commandments. It follows step by step the exposition of our duty to our neighbours in the Catechism. There was never more urgent necessity for preaching such a sermon than there is at present. There was never so much doubt as to other sanctions. The religious sanction, in particular, has been 'immensely weakened, and people seem to believe that if they do not happen to like morality, there is no reason why they should be moral.' It is, then, 'specially necessary to those who do care for morality to make its one unquestionable indisputable sanction as clear and strong and emphatic as acts and words can make it. A man may disbelieve in God, heaven, and hell; he may care little for mankind, or society, or for the nation to which he belongs--let him at least be plainly told what are the acts which will stamp him with infamy, hold him up to public execration and bring him to the gallows, the gaol, or the lash.'[184] That vigorous summary shows the connection between the 'Liberty, Equality, Fraternity,' the various codifying enterprises, and his writings upon theology and ethics. The remarkable point, if I am not mistaken, is that in spite of the strong feeling indicated by the passage just quoted, the tone of the book is throughout that of sound common sense, impartiality, and love of fair play. It is characteristic that in spite of his prejudice against the commonplaces about progress, he does, in fact, show that the history of criminal law is in many most important respects the history of a steady advance in humanity and justice. Nor, in spite of a reservation or two against 'sentimentalism,' does he fail to show hearty sympathy with the process of improvement.

II. 'NUNCOMAR AND IMPEY'

In the summer (1883) which followed the publication of the 'History,' it began to appear that Fitzjames's health was not quite so vigorous as it had hitherto been. He could not throw off the effects of a trifling accident in June so rapidly as of old; and in the last months of the year his condition caused for a time some anxiety to his wife. Considered by the light of what afterwards happened, these symptoms probably showed that his unremitting labours had inflicted a real though as yet not a severe injury upon his constitution. For the present, however, it was natural to suppose that he was suffering from nothing more than a temporary exhaustion, due, perhaps, to the prolonged wrestle with his great book. Rest, it was believed, would fully restore him. He was, indeed, already at work again upon what turned out to be his last considerable literary undertaking. The old project for a series of law-books probably seemed rather appalling to a man just emerging from his recent labours; and those labours had suggested another point to him. The close connection between our political history and our criminal law had shown that a lawyer's technical knowledge might be useful in historical research. He resolved, therefore, to study some of the great trials 'with a lawyer's eye'; and to give accounts of them which might exhibit the importance of this application of special knowledge.[185] He soon fixed upon the impeachment of Warren Hastings. This not only possessed great legal and historical interest, but was especially connected with his favourite topics. It would enable him to utter some of his thoughts about India, and to discuss some very interesting points as to the application of morality to politics. He found that the materials were voluminous and intricate. Many blue books had been filled by the labours of parliamentary committees upon India; several folio volumes were filled with reports of the impeachment of Hastings, and with official papers connected with the same proceeding. A mass of other materials, including a collection of Sir Elijah Impey's papers in the British Museum, soon presented themselves. Finally, Fitzjames resolved to make an experiment by writing a monograph upon 'Impey's Trial of Nuncomar,' which is an episode in the great Warren Hastings story, compressible within moderate limits. Impey, as Fitzjames remarks incidentally, had certain claims both upon him and upon Macaulay; for he had been a Fellow of Trinity and had made the first attempt at a code in India. If this first book succeeded Fitzjames would take up the larger subject. In the event he never proceeded beyond the preliminary stage. His 'Story of Nuncomar and the Impeachment of Sir Elijah Impey,' published in the spring of 1885, gives the result.

Fitzjames had been familiar from his boyhood with the famous article upon Warren Hastings, in which Macaulay reached the very culminating point of his surpassing literary skill. It is a skill which, whatever else may be said of it, makes his opponents despair. They may disprove his statements; they can hardly hope to displace his versions of fact from their hold upon popular belief. One secret of Macaulay's art is suggested by the account of his delight in 'castle-building.' His vast reading and his portentous memory enabled him to create whole galleries of mental pictures of the past, and his vigorous style embodies his visions with admirable precision and sharpness of outline. But, as those who have followed him in detail became painfully aware, there is more than one deduction to be made from his merits. His imagination undoubtedly worked upon a great mass of knowledge; but the very nature of the imaginative process was to weave all the materials into a picture, and therefore to fill up gaps by conjecture. He often unconsciously makes fancy do the work of logic. 'The real history' (of the famous quarrel between Addison and Steele), says Macaulay, 'we have little doubt, was something like this': and he proceeds to tell a story in minute detail as vividly as if he had been an eye-witness. To him, the clearness of the picture was a sufficient guarantee of its truthfulness. It was only another step to omit the 'doubt' and say simply 'The real history was.' Yet all the time the real history according to the best evidence was entirely different. We can never be certain whether one of Macaulay's brilliant pictures is--as it sometimes certainly is--a fair representation of a vast quantity of evidence or an audacious inference from a few hints and indications. It represents, in either case, the effect upon his mind; but the effect, if lively enough, is taken to prove itself. He will not condescend to the prosaic consideration of evidence, or to inserting the necessary 'ifs' and 'perhapses' which disturb so painfully the impression of a vivid narrative. When his strong party feelings have coloured his beliefs from the first, his beliefs acquire an intensity which enables them not only to dispense with but to override evidence.

I insist upon this because Fitzjames's mental excellencies and defects exactly invert Macaulay's. His imagination did not clothe the evidence with brilliant colours; and, on the other hand, did not convert conjectures into irresistible illusions. The book upon 'Nuncomar and Impey' shows the sound judgment of evidence in regard to a particular fact which Professor Maitland perceives in his treatment of mediæval affairs. It is an exhaustive, passionless, and shrewd inquiry into the facts. He speaks in one of his letters of the pleasure which he has discovered in treating a bit of history 'microscopically'; in getting at the ultimate facts instead of trusting to the superficial summaries of historians. In brief, he is applying to an historical question the methods learnt in the practice of the courts of law. The book is both in form and substance the careful summing up of a judge in a complicated criminal case. The disadvantage, from a literary point of view, is obvious. If we were profoundly interested in a trial for murder, we should also follow with profound interest the summing up of a clear-headed businesslike judge. But, if we did not care two straws whether the man were guilty or innocent, we might find the summing up too long for our patience. That, I fear, may be true in this case. Macaulay's great triumph was to create an interest in matters which, in other hands, were repulsively dry. Fitzjames could not create such an interest; though his account may be deeply interesting to those who are interested antecedently. He observes himself that his 'book will be read by hardly anyone, while Macaulay's paragraph will be read with delighted conviction by several generations.' So long as he is remembered at all, poor Impey will stand in a posthumous pillory as a corrupt judge and a judicial murderer.[186] One reason is, no doubt, that the effect of a pungent paragraph is seldom obliterated by a painstaking exposure of its errors requiring many pages of careful and guarded reasoning. Macaulay's narrative could be superseded in popular esteem only by a writer who should condense a more correct but equally dogmatic statement into language as terse and vivid as his own. Yet Fitzjames's book must be studied by all conscientious historians in future, and will help, it is to be hoped, to spread a knowledge of the fact that Macaulay was not possessed of plenary inspiration.

It will be enough to give one instance of Macaulay's audacity. 'Every schoolboy of fourteen' knows by heart his vivid account of the reign of terror produced by Impey's exercise of the powers of the supreme court, and of the bribe by which Hastings bought him off. A powerful and gloomy picture is drawn in two or three expressive paragraphs. The objection to the story, says Fitzjames, 'is that it is absolutely false from end to end, and in almost every particular.'[187] Fitzjames proceeds not only to assert the absence of evidence, but to show what was the supposed evidence out of which Macaulay's imagination conjured this vision of horror. Fitzjames remarks in a letter that his investigations had given him a very low opinion of the way in which history was written, and certainly, if

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

I may admit that, to my mind, the purely judicial method followed by Fitzjames has its disadvantages. It tends to the exclusion of considerations which, though rightly excluded from a criminal inquiry, cannot be neglected by an historian. A jury would be properly directed to acquit Hastings upon the charge of having instigated the prosecution of Nuncomar. Yet, after all, it is very hard to resist the impression that he must have had some share, more or less direct, in producing an event which occurred just at the right moment and had such fortunate results for him. It would be very wrong to hang a man upon such presumptions; but it is impossible to deny that they have a logical bearing upon the facts. However this may be, I think it is undeniable that Fitzjames did good service to history in showing once for all the ruthlessness and extravagance of Macaulay's audacious rhetoric. It is characteristic that while making mincemeat of Macaulay's most famous essay, Fitzjames cannot get rid of his tenderness for the great 'Tom' of his boyish days. Besides praising the literary skill, which indeed, is part of his case, he parts from his opponent with the warm eulogy which I have previously noticed. He regards Macaulay as deluded by James Mill and by the accepted Whig tradition. He condemns Mill, whose dryness and severity have gained him an undeserved reputation for impartiality and accuracy; he speaks--certainly not too strongly--of the malignity of Francis; and he is, I think, a little hard upon Burke, Sheridan, and Elliot, who were misled by really generous feelings (as he fully admits) into the sentimental rhetoric by which he was always irritated. He treats them as he would have put down a barrister trying to introduce totally irrelevant eloquence. Macaulay escapes more easily. Fitzjames felt that the essay when first published was merely intended as a summary of the accepted version, making no pretensions to special research. The morality of this judgment is questionable. Burke, believing sincerely that Hastings was a wicked and corrupt tyrant, inferred logically that he should be punished. Macaulay, accepting Burke's view of the facts, calmly asserts that Hastings was a great criminal, and yet with equal confidence invites his readers to worship the man whose crimes were useful to the British empire. Fitzjames disbelieved in the crimes, and could therefore admire Hastings without reserve as the greatest man of the century. His sympathy with Macaulay's patriotism made him, I think, a little blind to the lax morality with which it was in this case associated. There is yet another point upon which I think that Macaulay deserves a severer sentence. 'It is to be regretted,' says Fitzjames, 'that Macaulay should never have noticed the reply made to the essay by Impey's son.'[188] Unluckily this is not a solitary instance. Macaulay, trusting to his immense popularity, took no notice of replies which were too dull or too complicated to interest the public. Fitzjames would himself have been utterly incapable of behaviour for which it is difficult to discover an appropriate epithet, but which certainly is inconsistent with a sincere and generous love of fair play. If he did not condemn Macaulay more severely, I attribute it to the difficulty which he always felt in believing anything against a friend or one associated with his fondest memories. Had I written the book myself, I should have felt bound to say something unpleasant: but I am hardly sorry that Fitzjames tempered his justice with a little excess of mercy.

The scheme of continuing this book by an account of Warren Hastings was not at once dropped, but its impracticability became obvious before many months had passed. Fitzjames was conducting the Derby assizes in April 1885, when he had a very serious attack of illness. His wife was fortunately with him, and, after consulting a doctor on the spot, he returned to London, where he consulted Sir Andrew Clark. A passage from a letter to Lady Egerton explains his view of what had happened. 'I suppose,' he says (April 29, 1885), 'that Mary has told you the dreadful tale of my getting up in the morning and finding that my right hand had either forgot its cunning or had turned so lazy that I could not write with it, and how I sent for a Derby doctor, and how he ordered me up to London, and how Clark condemned me to three months' idleness and prison diet--I must admit, of a sufficiently liberal kind. Fuller sees the sentence carried out in detail. I have had about three days' experience of it, and I must own that I already feel decidedly better. I think that after the long vacation I shall be thoroughly well again. In the meantime, I feel heartily ashamed of myself. I always did consider any kind of illness or weakness highly immoral, but one must not expect to be either better or stronger than one's neighbours; and I suppose there is some degree of truth in what so many people say on Sundays about their being miserable sinners.' He adds that he is having an exceedingly pleasant time, which would be still more pleasant if he could write with his own hand (the letter is dictated). He has 'whole libraries of books' into which he earnestly desires to look. He feels like a man who has exchanged dusty boots for comfortable slippers; he is reading Spanish 'with enthusiasm'; longing to learn Italian, to improve his German, and even to read up his classics. He compares himself to a traveller in Siberia who, according to one of his favourite anecdotes, loved raspberries and found himself in a desert entirely covered with his favourite fruit.

He took the blow gallantly; perhaps rather too lightly. He was, of course, alarmed at first by the symptoms described. Clark ultimately decided that, while the loss of power showed the presence of certain morbid conditions, a careful system of diet might keep at bay for an indefinite time the danger of the development of a fatal disease. Fitzjames submitted to the medical directions with perhaps a little grumbling. He was not, like his father, an ascetic in matters of food. He had the hearty appetite natural to his vigorous constitution. He was quite as indifferent as his father to what, in the old phrase, used to be called 'the pleasures of the table.' He cared absolutely nothing for the refinements of cookery, and any two vintages were as indistinguishable to him as two tunes--that is, practically identical. He cared only for simple food, and I used, in old days, to argue with him that a contempt for delicacies was as fastidious as a contempt for plain beef and mutton. However that may be, he liked the simplest fare, but he liked plenty of it. To be restricted in that matter was, therefore, a real hardship. He submitted, however, and his health improved decidedly for the time. Perhaps he dismissed too completely the thought of the danger by which he was afterwards threatened. But, in spite of the improvement, he had made a step downwards. He was allowed to go on circuit again in the summer, after his three months' rest, and soon felt himself quite equal to his work. But, from this time, he did not add to his burthens by undertaking any serious labours of supererogation.

III. JUDICIAL CHARACTERISTICS