The Life of Sir James Fitzjames Stephen, Bart., K.C.S.I Part 13

CHAPTER V

_LAST YEARS AT THE BAR_

I. FIRST OCCUPATIONS IN ENGLAND

Fitzjames had pa.s.sed the winter of 1871-2 in Calcutta with Henry Cunningham; his wife having returned to England in November. He followed her in the spring, sailing from Bombay on April 22, 1872. To most people a voyage following two years and a half of unremitting labour would have been an occasion for a holiday. With him, however, to end one task was the same thing as to begin another, and he was taking up various bits of work before India was well out of sight. He had laid in a supply of literature suitable both for instruction and amus.e.m.e.nt. The day after leaving Bombay he got through the best part of a volume of Sainte-Beuve.

He had also brought a 'Faust' and Auerbach's 'Auf der Hohe,' as he was anxious to improve himself in German, and he filled up odd s.p.a.ces of time with the help of an Italian grammar. He was writing long letters to friends in India, although letter-writing in the other direction would be a waste of time. With this provision for employment he found that the time which remained might be adequately filled by a return to his beloved journalism. He proposes at starting to write an article a day till he gets to Suez. He was a little put out for the first twenty-four hours because in the place which he had selected for writing his iron chair was too near the s.h.i.+p's compa.s.ses. He got a safe position a.s.signed to him before long and immediately set to work. He takes his first text from the May meetings for an article which will give everybody some of his reflections upon missionaries in India. Our true position in India, he thinks, is that of teachers, if only we knew what to teach. Hitherto we have not got beyond an emphatic a.s.sertion of the necessity of law and order. He writes his article while the decks are being washed, and afterwards writes a 'bit of a letter,' takes his German and Italian lessons, and then turns to his travelling library.

This included Mill's 'Utilitarianism' and 'Liberty'; which presently provide him with material not only for reflection, but for exposition.

On April 27 he reports that he has been 'firing broadsides into John Mill for about three hours.' He is a little distracted by the heat, and by talks with some of his fellow-travellers; but as he goes up the Red Sea he is again a.s.sailing Mill. It has now occurred to him that the criticisms may be formed into a series of letters to the 'Pall Mall Gazette,' which will enable him to express a good many of his favourite doctrines. 'It is curious,' he says, 'that after being, so to speak, a devoted disciple and partisan (of Mill) up to a certain point I should have found it impossible to go on with him. His politics and morals are not mine at all, though I believe in and admire his logic and his general notions of philosophy.'

He reached Suez on May 5, and on the way home resolved at last to knock off work and have a little time for reflection on the past and the future. India, he says, has been 'a sort of second University course' to him. 'There is hardly any subject on which it has not given me a whole crowd of new ideas, which I hope to put into shape,' and communicate to the world. On May 12 he reached Paris, where he met his wife; and on the 14th was again in England, rejoicing in a cordial reception from his family and his old friends. The same evening he sees his cousin Mrs.

Russell Gurney and her husband; and his uncle and aunt, John and Emelia Venn. Froude met him next day in the pleasantest way, and Maine and he, as he reports, were 'like two schoolboys.' On the 15th he went to his chambers and called upon Greenwood at the 'Pall Mall Gazette' office. He had written an article on the way from Paris which duly appeared in next day's paper. Not long after his return he attended a dinner of his old Cambridge club, with Maine in the chair. In proposing Maine's health he suggested that the legislation pa.s.sed in India during the rule of his friend and himself should henceforth be called the 'Acts of the Apostles.'

One of the greatest pleasures upon reaching home was to find that his mother showed less marks of increasing infirmity than he had expected from the accounts in letters. She was still in full possession of her intellectual powers, and though less able than of old to move about, was fully capable of appreciating the delight of welcoming back the son who had filled so much of her thoughts. I may here note that Fitzjames's happiness in reviving the old bonds of filial affection was before long to be clouded. His uncle, Henry Venn, died on January 13, 1873, and he writes on the 30th: 'somehow his life was so bold, so complete, and so successful, that I did not feel the least as if his death was a thing to be sad about,' sad as he confesses it to be in general to see the pa.s.sing away of the older generation. 'My dear mother,' he adds, 'is getting visibly weaker, and it cannot now be a very long time before she goes too. It is a thought which makes me feel very sad at times, but no one ever had either a happier life or a more cheerful and gallant spirit. She does not care to have us to dinner now; but we all see her continually; I go perhaps every other day, and Mary nearly every day.'

His mother was to survive two years longer. Her strong const.i.tution and the loving care of the daughter who lived with her supported her beyond the antic.i.p.ation of her doctors. There are constant references to her state in my brother's letters. The old serenity remained unchanged to the last. She suffered no pain and was never made querulous by her infirmities. Slowly and gradually she seemed to pa.s.s into a world of dreams as the decay of her physical powers made the actual world more indistinct and shadowy. The only real subject for regret was the strain imposed upon the daughter who was tenderly nursing her, and doing what could be done to soothe her pa.s.sage through the last troubles she was to suffer. It was as impossible to wish that things should be otherwise as not to feel the profound pathos of the gentle close to long years of a most gentle and beautiful life. Fitzjames felt what such a son should feel for such a mother. It would be idle to try to put into explicit words that under-current of melancholy and not the less elevating thought which saddened and softened the minds of all her children. Her children must be taken to include some who were children not by blood but by reverent affection. She died peacefully and painlessly on February 27, 1875. She was buried by the side of her husband and of two little grandchildren, Fitzjames's infant daughter and son, who had died before her.

I now turn to the work in which Fitzjames was absorbed almost immediately after his return to England. He had again to take up his profession. He was full of acc.u.mulated reflections made in India, which he had not been able to discharge through the accustomed channel of journalism during his tenure of office; and besides this he entertained hopes, rather than any confident belief, that he would be able to induce English statesmen to carry on in their own country the work of codification, upon which he had been so energetically labouring in India. Before his departure he had already been well known to many distinguished contemporaries. But he came home with a decidedly higher reputation. In the natural course of things, many of his contemporaries had advanced in their different careers, and were becoming arbiters and distributors of reputation. His Indian career had demonstrated his possession of remarkable energy, capable of being applied to higher functions than the composition of countless leading articles. He was henceforward one of the circle--not distinguished by any definite label but yet recognised among each other by a spontaneous freemasonry--which forms the higher intellectual stratum of London society; and is recruited from all who have made a mark in any department of serious work. He was well known, of course, to the leaders of the legal profession; and to many members of Government and to rising members of Parliament, where his old rival Sir W. Harcourt was now coming to the front. He knew the chief literary celebrities, and was especially intimate with Carlyle and Froude, whom he often joined in Sunday 'const.i.tutionals.' His position was recognised by the pleasant compliment of an election to the 'Athenaeum' 'under Rule II.,' which took place at the first election after his return (1873). He had just before (November 1872) been appointed counsel to the University of Cambridge.

Before long he had resumed his place at the bar. His first appearance was at the Old Bailey in June 1872, where he 'prosecuted a couple of rogues for Government.' He had not been there since he had held his first brief at the same place eighteen years before, and spent his guinea upon the purchase of a wedding ring. He was amused to find himself after his dignified position in India regarded as a rather 'promising young man' who might in time be capable of managing an important case. The judge, he says, 'snubbed' him for some supposed irregularity in his examination of a witness, and did not betray the slightest consciousness that the offender had just composed a code of evidence for an empire. He went on circuit in July, and at Warwick found himself in his old lodgings, writing with his old pen, holding almost the same brief as he had held three years before, before the same judge, listening to the same church bells, and taking the walk to Kenilworth Castle which he had taken with Grant Duff in 1854. Although the circuit appears to have been unproductive, business looked 'pretty smiling in various directions.' John Duke Coleridge, afterwards Lord Chief Justice, was at this time Attorney-General. Fitzjames differed from him both in opinions and temperament, and could not refrain from an occasional smile at the trick of rather ostentatious self-depreciation which Coleridge seemed to have inherited from his great-uncle. There was, however, a really friendly feeling between them both now and afterwards; and Coleridge was at this time very serviceable. He is 'behaving like a good fellow,' reports Fitzjames July 5, and is 'sending Government briefs which pay very well.' By the end of the year Fitzjames reports 'a very fair sprinkling of good business.' All his old clients have come back, and some new ones have presented themselves. There were even before this time some rumours of a possible elevation to the bench; but apparently without much solid foundation. Meanwhile, he was also looking forward to employment in the direction of codification. He had offered, when leaving India, to draw another codifying bill (upon 'Torts') for his successor Hobhouse. This apparently came to nothing; but there were chances at home. 'I have considerable hopes,' he says (June 19, 1872), 'of getting set to work again after the manner of Simla or Calcutta.'

There is work enough to be done in England to last for many lives; and the Government may perhaps take his advice as to the proper mode of putting it in hand. He was soon actually at work upon two bills, which gave him both labour and worry before he had done with them. One of these was a bill upon homicide, which he undertook in combination with Russell Gurney, then recorder of London. The desirability of such a bill had been suggested to Gurney by John Bright, in consequence of a recent commission upon Capital Punishment. Gurney began to prepare the work, but was glad to accept the help of Fitzjames, whose labours had made him so familiar with the subject. Substantially he had to adapt part of the Penal Code, which he must have known by heart, and he finished the work rapidly. He sent a copy of the bill to Henry Cunningham on August 15, 1872, when it had already been introduced into Parliament by R. Gurney and read a first time. He sees, however, no chance of getting it seriously discussed for the present. One reason is suggested in the same letter. England is a 'centre of indifference' between the two poles, India and the United States. At each pole you get a system vigorously administered and carried to logical results. 'In the centre you get the queerest conceivable hubblebubble, half energy and half impotence, and all scepticism in a great variety of forms.' The homicide bill was delayed by Russell Gurney's departure for America on an important mission in the following winter, but was not yet dead. One absurd little anecdote in regard to it belongs to this time. Fitzjames had gone to stay with Froude in a remote corner of Wales; and wis.h.i.+ng to refer to the draft, telegraphed to the Recorder of London: 'Send Homicide Bill.'

The official to whom this message had to be sent at some distance from the house declined to receive it. If not a coa.r.s.e practical joke, he thought it was a request to forward into that peaceful region a wretch whose nickname was too clearly significant of his bloodthirsty propensities.

Fitzjames mentions in the same letter to Cunningham that he has just finished the 'introduction' to his Indian Evidence Act. This subject brought him further occupation. He had more or less succeeded in making a convert of Coleridge. 'If this business with Coleridge turns out right,' he says (October 2), 'I shall have come home in the very nick of time, for there is obviously going to be a chance in the way of codification which there has not been these forty years, and which may never occur again.' Had he remained in India, he might have found the new viceroy less favourable to his schemes than Lord Mayo had been, and would have at any rate missed the chance of impressing the English Government at the right time. On November 29 he writes again to Cunningham, and expresses his disgust at English methods of dealing with legislation. He admits that 'too much a.s.sociation with old Carlyle, with whom I walk most Sundays,' may have made him 'increasingly gloomy.' But 'everything is so loose, so jarring, there is such an utter want of organisation and government in everything, that I feel sure we shall have a great smash some day.' A distinguished official has told him--and he fully believes it--that the Admiralty and the War Office would break down under a week's hard pressure. He observes in one article of the time that his father had made the same prophecy before 1847. He often quotes his father for the saying, 'I am a ministerialist.' Men in office generally try to do their best, whatever their party. But men in opposition aim chiefly at thwarting all action, good or bad, and a parliamentary system gives the advantage to obstruction. Part of his vexation, he admits, is due to his disgust at the treatment of the codification question. Coleridge, it appears, had proposed to him 'months ago' that he should be employed in preparing an Evidence Bill.

Difficulties had arisen with Lowe, the Chancellor of the Exchequer, as to the proper fee. Fitzjames was only anxious now to get the thing definitively settled on any terms and put down in black and white. The Government might go out at any moment, and without some agreement he would be left in the lurch. It was 'excessively mortifying, ... and showed what a ramshackle concern our whole system' was. Definite instructions, however, to prepare the bill were soon afterwards given.

On December 20 he writes that the English Evidence Bill is getting on famously. He hopes to have it all ready before Parliament meets, and it may probably be read a second time, though hardly pa.s.sed this year. It was in fact finished, as one of his letters shows, by February 7, 1873.

II. 'LIBERTY, EQUALITY, FRATERNITY'

Meanwhile, however, he had been putting much energy into another task.

He had for some time delivered his tale of articles to the 'Pall Mall Gazette' as of old. He was soon to become tired of anonymous journalism; but he now produced a kind of general declaration of principles which, though the authors.h.i.+p was no secret and was soon openly acknowledged, appeared in the old form, and, as it turned out, was his last work of importance in that department. It was in some ways the most characteristic of all his writings. He put together and pa.s.sed through the 'Pall Mall Gazette' during the last months of 1872 and January 1873 the series of articles already begun during his voyage. They were collected and published with his name in the following spring as 'Liberty, Equality, Fraternity.' I confess that I wondered a little at the time that the editor of a newspaper should be willing to fill his columns with so elaborate a discourse upon first principles; and I imagine that editors of the present day would be still more determined to think twice before they allowed such lat.i.tude even to the most favoured contributor. I do not doubt, however, that Mr. Greenwood judged rightly. The letters were written with as much force and spirit as anything that Fitzjames ever produced. I cannot say how they affected the paper, but the blows told as such things tell. They roused the anger of some, the sympathy of others, and the admiration of all who liked to see hard hitting on any side of a great question. The letters formed a kind of 'Apologia' or a manifesto--the expression, as he frequently said, of his very deepest convictions. I shall therefore dwell upon them at some length, because he had never again the opportunity of stating his doctrines so completely. Those doctrines are far from popular, nor do I personally agree with them. They are, however, characteristic not merely of Fitzjames himself, but of some of the contemporary phases of opinion. I shall therefore say something of their relation to other speculations; although for my purpose the primary interest is the implied autobiography.

The book was perhaps a little injured by the conditions under which it was published. A series of letters in a newspaper, even though, as in this case, thought out some time beforehand, does not lend itself easily to the development of a systematic piece of reasoning. The writer is tempted to emphasise unduly the parts of his argument which are congenial to the journalistic mode of treatment. It is hard to break up an argument into fragments, intended for separate appearance, without somewhat dislocating the general logical framework. The difficulty was increased by the form of the argument. In controverting another man's book, you have to follow the order of his ideas instead of that in which your own are most easily expounded. Fitzjames, indeed, gives a reason for this course. He accepts Mill's 'Liberty' as the best exposition of the popular view. Acknowledging his great indebtedness to Mill, he observes that it is necessary to take some definite statement for a starting point; and that it is 'natural to take the ablest, the most reasonable, and the clearest.' Mill, too, he says, is the only living author with whom he 'agrees sufficiently to argue with him profitably.'

He holds that the doctrines of Mill's later books were really inconsistent with the doctrines of the 'Logic' and 'Political Economy.'

He is therefore virtually appealing from the new Utilitarians to the old. 'I am falling foul,' he says in a letter, 'of John Mill in his modern and more humane mood--or, rather, I should say, in his sentimental mood--which always makes me feel that he is a deserter from the proper principles of rigidity and ferocity in which he was brought up.' Fitzjames was thus writing as an orthodox adherent of the earlier school. He had sat at the feet of Bentham and Austin, and had found the most congenial philosophy in Hobbes. And yet his utilitarianism was mingled with another strain; and one difficulty for his readers is precisely that his attack seems to combine two lines of argument not obviously harmonious. Still, I think that his main position is abundantly clear.

Fitzjames--as all that I have written may go to prove--was at once a Puritan and a Utilitarian. His strongest sympathies and antipathies were those which had grown up in the atmosphere of the old evangelical circle. On this side, too, he had many sympathies with the teaching of Carlyle, himself a spiritual descendant of the old Covenanters. But his intellect, as I have also remarked, unlike Carlyle's, was of the thoroughly utilitarian type. Respect for hard fact, contempt for the mystical and the dreamy; resolute defiance of the _a priori_ school who propose to override experience by calling their prejudices intuitions, were the qualities of mind which led him to sympathise so unreservedly with Bentham's legislative theories and with Mill's 'Logic.' Let us, before all things, be sure that our feet are planted on the solid earth and our reason guided by verifiable experience. All his studies, his legal speculations, and his application of them to practice, had strengthened and confirmed these tendencies. How were they to be combined with his earlier prepossessions?

The alliance of Puritan with utilitarian is not in itself strange or unusual. Dissenters and freethinkers have found themselves side by side in many struggles. They were allied in the attack upon slavery, in the advocacy of educational reforms, and in many philanthropic movements of the early part of this century. James Mill and Francis Place, for example, were regarded as atheists, and were yet adopted as close philanthropic allies by Zachary Macaulay and by the quaker William Allen. A common antipathy to sacerdotalism brought the two parties together in some directions, and the Protestant theory of the right of private judgment was in substance a narrower version of the rationalist demand for freedom of thought. Protestantism in one aspect is simply rationalism still running about with the sh.e.l.l on its head. This gives no doubt one secret of the decay of the evangelical party. The Protestant demand for a rational basis of faith widened among men of any intellectual force into an inquiry about the authority of the Bible or of Christianity. Fitzjames had moved, reluctantly and almost in spite of himself, very far from the creed of his fathers. He could not take things for granted or suppress doubts by ingenious subterfuges. And yet, he was so thoroughly imbued with the old spirit that he could not go over completely to its antagonists. To destroy the old faith was still for him to destroy the great impulse to a n.o.ble life. He held in some shape to the value of his creed, even though he felt logically bound to introduce a 'perhaps.'

This, however, hardly gives the key to his first difference with the utilitarians, though it greatly affects his conclusions. He called himself, as I have said, a Liberal; but there were, according to him, two cla.s.ses of Liberals, the intellectual Liberals, whom he identified with the old utilitarians, and the Liberals who are generally described as the Manchester school. Which of those was to be the school of the future, and which represented the true utilitarian tradition? Here I must just notice a fact which is not always recognised. The utilitarians are identified by most people with the (so-called) Manchester doctrines.

They are regarded as advocates of individualism and the _laissez-faire_ or, as I should prefer to call it, the let-alone principle. There was no doubt a close connection, speaking historically; but a qualification must be made in a logical sense, which is very important for my purpose.

The tendency which Fitzjames attacked as especially identified with Mill's teaching--the tendency, namely, to restrict the legitimate sphere of government--is far from being specially utilitarian. It belonged more properly to the adherents of the 'rights of man,' or the believers in abstract reason. It is to be found in Price and Paine, and in the French declaration of the rights of man; and Mr. Herbert Spencer, its chief advocate (in a new form) at the present day remarks himself that he was partly antic.i.p.ated by Kant. Bentham expressly repudiated this view in his vigorous attack upon the 'anarchical fallacies' embodied in the French declaration. In certain ways, moreover, Bentham and his disciples were in favour of a very vigorous Government action. Bentham invented his Panopticon as a machine for 'grinding rogues honest,' and proposed to pa.s.s paupers in general through the same mill. His const.i.tutional code supposes a sort of omnipresent system of government, and suggests a national system of education and even a national church--with a very diluted creed. As thorough-going empiricists, the utilitarians were bound to hold, and did, in fact, generally declare themselves to hold, not that Government interference was wrong in general, but simply that there was no general principle upon the subject. Each particular case must be judged by its own merits.

Historically speaking, the case was different. The political economy of Ricardo and the Mills was undoubtedly what is now called thoroughly 'individualistic.' Its adherents looked with suspicion at everything savouring of Government action. This is in part one ill.u.s.tration of the general truth that philosophies of all kinds are much less the real source of principles than the theories evoked to justify principles.

Their course is determined not by pure logic alone, but by the accidents of contemporary politics. The revolutionary movement meant that governments in general were, for the time, the natural enemies of 'reason.' Philosophers who upon any ground sympathised with the movement took for their watchword 'liberty,' which, understood absolutely, is the ant.i.thesis to all authority. They then sought to deduce the doctrine of liberty from their own philosophy, whatever that might be. The _a priori_ school discovered that kings and priests and n.o.bles interfered with a supposed 'order of nature,' or with the abstract 'rights of man.'

The utilitarian's argument was that all government implies coercion; that coercion implies pain; and therefore that all government implies an evil which ought to be minimised. They admitted that, though 'minimised,' it should not be annihilated. Bentham had protested very forcibly that the 'rights of man' doctrine meant anarchy logically, and a.s.serted that government was necessary, although a necessary evil. But the general tendency of his followers was to lay more stress upon the evil than upon the necessity. The doctrine was expounded with remarkable literary power by Buckle,[119] who saw in all history a conflict between protection and authority on the one hand and liberty and scepticism on the other.

J. S. Mill had begun as an unflinching advocate of the stern old utilitarianism of his father and Ricardo. He had become, as Fitzjames observes, 'humane' or 'sentimental' in later years. He tried, as his critics observe, to soften the old economic doctrines and showed a certain leaning to socialism. In regard to this part of his teaching, in which Fitzjames took little interest, I shall only notice that, whatever his concessions, he was still in principle an 'individualist.' He maintained against the Socialists the advantages of compet.i.tion; and though his theory of the 'unearned increment' looks towards the socialist view of nationalisation of the land, he seems to have been always in favour of peasant proprietors.h.i.+p, and of co-operation as distinguished from State socialism. Individualism, in fact, in one of its senses, for like other popular phrases it tends to gather various shades of meaning, was really the characteristic of the utilitarian school. Thus in philosophy they were 'nominalists,' believing that the ultimate realities are separate things, and that abstract words are mere signs calling up arbitrary groups of things. Politically, they are inclined to regard society as an 'aggregate,' instead of an 'organism.'

The ultimate units are the individual men, and a nation or a church a mere name for a mult.i.tude combined by some external pressure into a collective ma.s.s of separate atoms.[120] This is the foundation of Mill's political theories, and explains the real congeniality of the let-alone doctrines to his philosophy. It gives, too, the key-note of the book upon 'Liberty,' which Fitzjames took for his point of a.s.sault. Mill had been profoundly impressed by Tocqueville, and, indeed, by an order of reflections common to many intelligent observers. What are to be the relations between democracy and intellectual culture? Many distinguished writers have expressed their forebodings as to the future. Society is in danger of being vulgarised. We are to be ground down to uniform and insignificant atoms by the social mill. The utilitarians had helped the lower cla.s.ses to wrest the scourge from the hands of their oppressors.

Now the oppressed had the scourge in their own hands; how would they apply it? Coercion looked very ugly in the hands of a small privileged cla.s.s; but when coercion could be applied by the ma.s.ses would they see the ugliness of it? Would they not use the same machinery in order to crush the rich and the exalted, and take in the next place to crus.h.i.+ng each other? Shall we not have a dead level of commonplace and suffer, to use the popular phrase, from a 'tyranny of the majority,' more universal and more degrading than the old tyranny of the minority? This was the danger upon which Mill dwelt in his later works. In his 'Liberty' he suggests the remedy. It is nothing less than the recognition of a new moral principle. Mankind, he said, individually or collectively, are justified in interference with others only by the need of 'self-protection.' We may rightfully prevent a man from hurting his neighbour, but not from hurting himself. If we carefully observe this precaution the individual will have room to expand, and we shall cease to denounce all deviations from the common type.

Here Fitzjames was in partial sympathy with his antagonist. He reviewed 'Liberty' in the 'Sat.u.r.day Review' upon its first appearance; and although making certain reservations, reviewed it with warm approbation.

Mill and he were agreed upon one point. A great evil, perhaps the one great evil of the day, as Fitzjames constantly said, is the prevalence of a narrow and mean type of character; the decay of energy; the excessive devotion to a petty ideal of personal comfort; and the systematic attempt to turn our eyes away from the dark side of the world. A smug, placid, contemptible optimism is creeping like a blight over the face of society, and suppressing all the grander aspirations of more energetic times. But in proportion to Fitzjames's general agreement upon the nature of the evil was the vehemence of his dissent from the suggested remedy. He thought that, so far from meeting the evil, it tended directly to increase it. To diminish the strength of the social bond would be to enervate not to invigorate society. If Mill's principles could be adopted, everything that has stimulated men to pursue great ends would lose its interest, and we should become a more contemptible set of creatures than we are already.

I have tried to show how these convictions had been strengthened by circ.u.mstances. Fitzjames's strong patriotic feeling, his pride in the British race and the British empire, generated a special antipathy to the school which, as he thought, took a purely commercial view of politics; which regarded the empire as a heavy burthen, because it did not pay its expenses, and which looked forward to a millennium of small shopkeepers bothered by no taxes or tariffs. During the 'Pall Mall Gazette' period he had seen such views spreading among the cla.s.s newly entrusted with power. Statesmen, in spite of a few perfunctory attempts at better things, were mainly engaged in paltry intrigues, and in fis.h.i.+ng for votes by flattering fools. The only question was whether the demagogues who were their own dupes were better or worse than the demagogues who knew themselves to be humbugs. Carlyle's denunciations of the imbecility of our system began to be more congenial to his temper, and encouraged him in his heresy. Carlyle's teachings were connected with erroneous theories indeed, and too little guided by practical experience. But the general temper which they showed, the contempt for slovenly, haphazard, hand-to-mouth modes of legislation, the love of vigorous administration on broad, intelligible principles, entirely expressed his own feeling. Finally, in India he had, as he thought, found his ideal realised. There, with whatever shortcomings, there was at least a strong Government; rulers who ruled; capable of doing business; of acting systematically upon their convictions; strenuously employed in working out an effective system; and not trammelled by tr.i.m.m.i.n.g their sails to catch every temporary gust of sentiment in a half-educated community. His book, he often said, was thus virtually a consideration of the commonplaces of British politics in the light of his Indian experience. He wished, he says in one of his letters, to write about India; but as soon as he began he felt that he would be challenged to give his views upon these preliminary problems: What do you think of liberty, of toleration, of ruling by military force, and so forth? He resolved, therefore, to answer these questions by themselves.

I must add that this feeling was coloured by Fitzjames's personal qualities. He could never, as I have pointed out, like Mill himself; he p.r.o.nounced him to be 'cold as ice,' a mere 'walking book,' and a man whose reasoning powers were out of all proportion to his 'seeing powers.' If I were writing about Mill I should think it necessary to qualify this judgment of a man who might also be described as sensitive to excess, and who had an even feminine tenderness. But from Fitzjames's point of view the judgment was natural enough. The two men could never come into cordial relations, and the ultimate reason, I think, was what I should call Mill's want of virility. He might be called 'cold,' not as wanting in tenderness or enthusiasm, but as representing a kind of philosophical asceticism. Whether from his early education, his recluse life, or his innate temperament, half the feelings which moved mankind seemed to him simply coa.r.s.e and brutal. They were altogether detestable--not the perversions which, after all, might show a masculine and powerful nature. Mill's view, for example, seemed to be that all the differences between the s.e.xes were accidental, and that women could be turned into men by trifling changes in the law. To a man of ordinary flesh and blood, who had grounded his opinions, not upon books, but upon actual experience of life, such doctrines appear to be not only erroneous, but indicative of a hopeless thinness of character. And so, again, Fitzjames absolutely refused to test the value of the great patriotic pa.s.sions which are the mainsprings of history by the mere calculus of abstract concepts which satisfied Mill. Fitzjames, like Henry VIII., 'loved a man,' and the man of Mill's speculations seemed to be a colourless, flaccid creature, who required, before all things, to have some red blood infused into his veins.

Utilitarianism of the pedantic kind--the utilitarianism which subst.i.tutes mere lay figures for men and women--or the utilitarianism which refuses to estimate anything that cannot be entered in a ledger, was thus altogether abhorrent to Fitzjames. And yet he was, in his way, a utilitarian in principle; and his reply to Mill must be given in terms of utilitarianism. To do that, it was only necessary to revert to the original principles of the sect, and to study Austin and Bentham with a proper infusion of Hobbes. Then it would be possible to construct a creed which, whatever else might be said of it, was not wanting in vigour or in danger of subst.i.tuting abstractions for concrete realities.

I shall try to indicate the leading points of this doctrine without following the order partly imposed upon Fitzjames by his controversial requirements. Nor shall I inquire into a question not always quite clear, namely, whether his interpretation of Mill's principles was altogether correct.

One fundamental ground is common to Fitzjames and his antagonist. It is a.s.sumed in Austin's a.n.a.lysis of 'law,' which is accepted by both.[121]

Law properly means a command enforced by a 'sanction.' The command is given by a 'sovereign,' who has power to reward or punish, and is made effectual by annexing consequences, painful or pleasurable, to given lines of conduct. The law says, 'Thou shalt not commit murder'; and 'shalt not' means 'if you commit murder you shall be hanged.' Nothing can be simpler or more obviously in accordance with common sense.

Abolish the gaoler and the hangman and your criminal law becomes empty words. Moreover, the congeniality of this statement to the individualist point of view is obvious. Consider men as a mult.i.tude of independent units, and the problem occurs, How can they be bound into wholes? What must be the principle of cohesion? Obviously some motive must be supplied which will operate upon all men alike. Practically that means a threat in the last resort of physical punishment. The bond, then, which keeps us together in any tolerable order is ultimately the fear of force. Resist, and you will be crushed. The existence, therefore, of such a sanction is essential to every society; or, as it may be otherwise phrased, society depends upon coercion.

This, moreover, applies in all spheres of action. Morality and religion 'are and always must be essentially coercive systems.'[122] They restrain pa.s.sion and restrain it by appealing to men's hopes and fears--chiefly to their fears. For one man restrained by the fear of the criminal law, a vast number are restrained by the 'fear of the disapprobation of their neighbours, which is the moral sanction, or by the fear of punishment in a future state of existence, which is the religious sanction, or by the fear of their own disapprobation, which may be called the conscientious sanction, and may be regarded as a compound case of the other 'two.'[123] An objection, therefore, to coercion would be an objection to all the bonds which make a.s.sociation possible; it would dissolve equally states, churches, and families, and make even the peaceful intercourse of individuals impossible. In point of fact, coercion has built up all the great churches and nations.

Religions have spread partly by military power, partly by 'threats as to a future state,'[124] and always by the conquest of a small number of ardent believers over the indifferent ma.s.s. Men's lives are regulated by customs as streams are guided by dams and embankments. The customs like the dams are essentially restraints, and moreover restraints imposed by a small numerical minority, though they ultimately become so familiar to the majority that the restraint is not felt. All nations have been built up by war, that is, by coercion in its sternest form. The American civil war was the last and most striking example. It could not ultimately be settled by conveyancing subtleties about the interpretation of clauses in the Const.i.tution, but by the strong hand and the most energetic faith.[125] War has determined whether nations are to be and what they are to be. It decides what men shall believe and in what mould their religion, laws, morals, and the whole tone of their lives shall be cast.[126]

Nor does coercion disappear with the growth of civilisation. It is not abolished but transformed. Lincoln and Moltke commanded a force which would have crushed Charlemagne and his paladins and peers like so many eggsh.e.l.ls.[127] Scott, in the 'Fair Maid of Perth,' describes the 'Devil's d.i.c.k of h.e.l.lgarth' who followed the laird of Wamphray, who rode with the lord of Johnstone, who was banded with the Earl of Douglas, and earl, and lord, and laird, and the 'Devil's d.i.c.k' rode where they pleased and took what they chose. Does that imply that Scotland was then subject to force, and that now force has disappeared?

No; it means that the force that now stands behind a simple policeman is to the force of Douglas and his followers as the force of a line of battle s.h.i.+p to the force of an individual prize-fighter.[128] It works quietly precisely because it is overwhelming. Force therefore underlies and permeates every human inst.i.tution. To speak of liberty taken absolutely as good is to condemn all social bonds. The only real question is in what cases liberty is good, and how far it is good.

Buckle's denunciation of the 'spirit of protection' is like praising the centrifugal and reviling the centripetal force. One party would be condemning the malignity of the force which was dragging us all into the sun, and the other the malignity of the force which was driving us madly into s.p.a.ce. The seminal error of modern speculation is shown in this tendency to speak as advocates of one of different forces, all of which are necessary to the harmonious government of conduct.[129]

This insistence upon the absolute necessity of force or coercion, upon the theory that, do what you will, you alter only the distribution, not the general quant.i.ty of force, is the leading principle of the book.

Compulsion and persuasion go together, but the 'lion's share' of all the results achieved by civilisation is due to compulsion. Parliamentary government is a mild and disguised form of compulsion[130] and reforms are carried ultimately by the belief that the reformers are the strongest. Law in general is nothing but regulated force,[131] and even liberty is from the very nature of things dependent upon power, upon the protection, that is, of a powerful, well-organised intelligent government.[132] Hobbes's state of war simply threw an unpopular truth 'into a shape likely to be misunderstood.' There must be war, or evils worse than war. 'Struggles there must always be unless men stick like limpets or spin like weatherc.o.c.ks.'[133]

Hence we have our problem: liberty is good, not as opposed to coercion in general, but as opposed to coercion in certain cases. What, then, are the cases? Force is always in the background, the invisible bond which corresponds to the moral framework of society. But we have still to consider what limits may be laid down for its application. The general reply of a Utilitarian must of course be an appeal to 'expediency.'

Force is good, says Fitzjames, following Bentham again, when the end to be attained is good, when the means employed are efficient, and when, finally, the cost of employing them is not excessive. In the opposite cases, force of course is bad. Here he comes into conflict with Mill.

For Mill tries to lay down certain general rules which may define the rightful limits of coercive power. Now there is a _prima facie_ ground of suspicion to a sound utilitarian about any general rules. Mill's rules were of course regarded by himself as based upon experience. But they savoured of that absolute _a priori_ method which professes to deduce principles from abstract logic. Here, therefore, he had, as his opponent thought, been coquetting with the common adversary and seduced into grievous error. A great part of the argument comes to this: Mill advocates rules to which, if regarded as practical indications of certain obvious limitations to the utility of Government interference, Fitzjames has no objection. But when they are regarded as ultimate truths, which may therefore override even the principle of utility itself, they are to be summarily rejected. Thus, as we shall see, the practical differences are often less than appears. It is rather a question of the proper place and sphere of certain rules than of their value in particular cases. Yet at bottom there is also a profound divergence. I will try to indicate the main points at issue.

Mill's leading tenet has been already stated; the only rightful ground of coercing our neighbours is self-protection. Using the Benthamite terminology, we may say that we ought never to punish self-regarding conduct, or again interpolating the utilitarian meaning of 'ought' that such punishment cannot increase the general happiness. Fitzjames complains that Mill never tries to prove this except by adducing particular cases. Any attempt to prove it generally, would, he thinks, exhibit its fallacy. For, in brief, the position would really amount to a complete exclusion of the moral element from all social action. Men influence each other by public opinion and by law. Now if we take public opinion, Mill admits, though he disputes the inference from the admission, that a man must suffer the 'inconveniences strictly inseparable from the unfavourable opinion of others.' But men are units, not bundles of distinct qualities, some self-regarding, and others 'extra-regarding.' Everyone has the strongest interest in the character of everyone else. A man alone in the world would no more be a man than a hand without a body would be a hand.[134] We cannot therefore be indifferent to character because accidentally manifested in ways which do or do not directly and primarily affect others. Drunkenness, for example, may hurt a man's health or it may make him a brute to his wife or neglectful of his social duties. As moralists we condemn the drunkard, not the results of his conduct, which may be this or that according to circ.u.mstances. To regard Mill's principle as a primary moral axiom is, therefore, contradictory. It nullifies all law, moral or other, so far as it extends. But if Mill's admission as to the 'unfavourable opinions' is meant to obviate this conclusion, his theory merely applies to positive law. In that case it follows that the criminal law must be entirely divorced from morality. We shall punish men not as wicked but as nuisances. To Fitzjames this position was specially repulsive. His interest in the criminal law was precisely that it is an application of morality to conduct. Make it a mere machinery for enabling each man to go his own way, virtuous or vicious, and you exclude precisely the element which const.i.tuted its real value. Mill, when confronted with some applications of his theory, labours to show that though we have no right to interfere with 'self-regarding' vice, we may find reasons for punis.h.i.+ng conspiracies in furtherance of vice. 'I do not think,' replies Fitzjames, 'that the state ought to stand bandying compliments with pimps.' It ought not to say that it can somehow find an excuse for calling upon them to desist from 'an experiment in living' from which it dissents. 'My feeling is that if society gets its grip on the collar of such a fellow, it should say to him, "You dirty fellow, it may be a question whether you should be suffered to remain in your native filth untouched, or whether my opinion should be printed by the lash on your bare back. That question will be determined without the smallest reference to your wishes or feelings, but as to the nature of my opinion about you there can be no doubt."'[135]

Hence the purely 'deterrent' theory of punishment is utterly unsatisfactory. We should punish not simply to prevent crime, but to show our hatred of crime. Criminal law is 'in the nature of a persecution of the grosser forms of vice, and an emphatic a.s.sertion of the principle that the feeling of hatred and the desire of vengeance above mentioned, (i.e. the emotion, whatever its proper name, produced by the contemplation of vice on healthily const.i.tuted minds) 'are important elements in human nature, which ought in such cases to be satisfied in a regular public and legal manner.[136] This is one of the cases in which Fitzjames fully recognises the importance of some of Mill's practical arguments, though he disputes their position in the theory. The objections to making men moral by legislation are, according to him, sufficiently recognised by the Benthamite criterion condemning inadequate or excessively costly means. The criminal law is necessarily a harsh and rough instrument. To try to regulate the finer relations of life by law, or even by public opinion, is 'like trying to pull an eyelash out of a man's eye with a pair of tongs: they may pull out the eye, but they will never get hold of the eyelash.'[137] But it is not the end, but the means that are objectionable. Fitzjames does not object in principle even to sumptuary laws. He can never, he says, look at a lace machine, and think of all the toil and ingenuity wasted, with patience.[138] But he admits that repressive laws would be impossible now, though in a simpler age they may have been useful. Generally, then, the distinction between 'self-regarding' and 'extra-regarding' conduct is quite relevant, so far as it calls attention to the condition of the probable efficacy of the means at our disposal. But it is quite irrelevant in a definition of the end. The end is to suppress immorality, not to obviate particular inconveniences resulting from immorality; and one great use of the criminal law is that, in spite of its narrow limitations, it supplies a solid framework round which public opinion may consolidate itself. The sovereign is, in brief, a great teacher of the moral law so far as his arm can reach.

The same principles are applied in a part of the book which probably gave more offence than any other to his Liberal opponents. The State cannot be impartial in regard to morals, for morality determines the bonds which hold society together. Can it, then, be indifferent in regard to religions? No; for morality depends upon religion, and the social bond owes its strength to both. The state can be no more an impartial bystander in one case than in the other. The 'free Church in a free State' represents a temporary compromise, not an ultimate ideal.

The difference between Church and State is not a difference of provinces, but a difference of 'sanctions.' The spiritual and the secular sanctions apply to the same conduct of the same men. Both claim to rule all life, and are ultimately compelled to answer the fundamental questions. To separate them would be to 'cut human life in two,' an attempt ultimately impossible and always degrading. To answer fundamental questions, says Mill, involves a claim to infallibility. No, replies Fitzjames, it is merely a claim to be right in the particular case, and in a case where the responsibility of deciding is inevitably forced upon us. If the state shrinks from such decisions, it will sink to be a mere police, or, more probably, will at last find itself in a position where force will have to decide what the compromise was meant to evade. Once more, therefore, the limits of state action must be drawn by expediency, not by an absolute principle. The Benthamite formula applies again. Is the end good, and are the means adequate and not excessively costly? Mill's absolute principle would condemn the levy of a s.h.i.+lling for a school, if the ratepayer objected to the religious teaching. Fitzjames's would, he grants, justify the Inquisition, unless its doctrines could be shown to be false or the means of enforcing them excessive or inadequate--issues, he adds, which he would be quite ready to accept.[139] Has, then, a man who believes in G.o.d and a future life a moral right to deter others from attacking those doctrines by showing disapproval? Yes, 'if and in so far as his opinions are true.'[140] To attack opinions on which the framework of society depends is, and ought to be, dangerous. It should be done, if done at all, sword in hand.

Otherwise the a.s.sailant deserves the fate of the Wanderer in Scott's ballad:

Curst be the coward that ever he was born That did not draw the sword before he blew the horn.[141]

Such opinions seem to justify persecution in principle. Fitzjames discusses at some length the case of Pontius Pilate, to which I may notice he had often applied parallels from Ram Singh and other Indian experiences. Pontius Pilate was in a position a.n.a.logous to that of the governor of a British province. He decides that if Pilate had acted upon Mill's principles he would have risked 'setting the whole province in a blaze.' He condemns the Roman persecutors as 'clumsy and brutal'; but thinks that they might have succeeded 'in the same miserable sense in which the Spanish Inquisition succeeded,' had they been more systematic, and then would at least not have been self-stultified. Had the Roman Government seen the importance of the question, the strife, if inevitable, might have been n.o.ble. It would have been a case of 'generous opponents each working his way to the truth from opposite sides,' not the case of a 'touching though slightly hysterical victim, mauled from time to time by a sleepy tyrant in his intervals of fury.'[142] Still, it will be said, there would have been persecution. I believe that there was no man living who had a more intense aversion than Fitzjames to all oppression of the weak, and, above all, to religious oppression. It is oddly characteristic that his main precedent is drawn from our interference with Indian creeds. We had enforced peace between rival sects; allowed conversion; set up schools teaching sciences inconsistent with Hindoo (and with Christian?) theology; protected missionaries and put down suttee and human sacrifices. In the main, therefore, we had shown 'intolerance' by introducing toleration. Fitzjames had been himself accused, on the occasion of his Native Marriages Bill, with acting upon principles of liberty, fraternity, and equality. His point, indeed, is that a government, even nervously anxious to avoid proselytism, had been compelled to a upon doctrines inconsistent with the religions of its subjects. I will not try to work out this little logical puzzle. In fact, in any case, he would really have agreed with Mill, as he admits, in regard to every actual question of the day. He admitted that the liberal contention had been perfectly right under the special circ.u.mstances. Their arguments were quite right so long as they took the lower ground of expediency, though wrong when elevated to the position of ultimate principles, overruling arguments from expediency.[143]

Toleration, he thinks, is in its right place as softening and moderating an inevitable conflict. The true ground for moral tolerance is that 'most people have no right to any opinion whatever upon these subjects,'

and he thinks that 'the ignorant preacher' who 'calls his betters atheists is not guilty of intolerance, but of rudeness and ignorance.'[144]

I must confess that this makes upon me the impression that Fitzjames was a little at a loss for good arguments to support what he felt to be the right mode of limiting his principles. The difficulty was due, I think, to the views which he shared with Mill. The utilitarian point of view tends to lower the true ground of toleration, because it regards exclusively the coercive elements of law. I should hold that free thought is not merely a right, but a duty, the exercise of which should be therefore encouraged as well as permitted; and that the inability of the coa.r.s.e methods of coercion to stamp out particular beliefs without crus.h.i.+ng thought in general, is an essential part of the argument, not a mere accident of particular cases. Our religious beliefs are not separate germs, spreading disease and capable of being caught and suppressed by the rough machinery of law, but parts of a general process underlying all law, and capable of being suppressed only at the cost of suppressing all mental activity. The utilitarian conception dwells too much upon the 'sanctions,' and too little on the living spirit, of which they are one expression.