The Life of Sir James Fitzjames Stephen, Bart., K.C.S.I Part 14

Fitzjames's view may so far be summed up by saying that he denies the possibility of making the state a neutral in regard to the moral and religious problems involved. Morality, again, coincides with 'utility '; and the utility of laws and conduct in general is the criterion which we must apply to every case by the help of the appropriate experience. We must therefore reject every general rule in the name of which this criterion may be rejected. This applies to Mill's doctrine of equality, as well as to his doctrine of non-interference. I pa.s.s over some comparatively commonplace remarks upon the inconsistency of 'liberty'

and 'equality.' The most unequivocal contradiction comes out in regard to Mill's theory of the equality of the s.e.xes. There was no dogma to which Mill was more attached or to which Fitzjames was more decidedly opposed. The essence of the argument, I take it, is this:[145]

A just legislator, says Mill, will treat all men as equals. He must mean, then, that there are no such differences between any two cla.s.ses of men as would affect the expediency of the applying the same laws to both. What is good for one must therefore be good for another. Now, in the first place, as Fitzjames urges, there is no presumption in favour of this hypothesis; and, in the next place, it is obviously untrue in some cases. Differences of age, for example, must be taken into account unless we accept the most monstrous conclusions. How does this apply to the case of s.e.x? Mill held that the difference in the law was due simply to the superiority of men to women in physical strength. Fitzjames replies that men are stronger throughout, stronger in body, in nerve and muscle, in mind and character. To neglect this fact would be silly; but if we admit it, we must admit its relevance to legislation. Marriage, for example, is one of the cases with which law and morality are both compelled to deal. Now the marriage contract necessarily involves the subordination of the weaker to the stronger. This, says Fitzjames, is as clearly demonstrable as a proposition of Euclid.[146] For, either the contract must be dissoluble at will or the rule must be given to one, and if to one, then, as every one admits, to the husband. We must then choose between entire freedom of divorce and the subordination of the wife. If two people are indissolubly connected and differ in opinions, one must give way. The wife, thinks Fitzjames, should give way as the seaman should give way to his captain; and to regard this as humiliating is a mark not of spirit but of a 'base, unworthy, mutinous disposition.'[147]

If, to avoid this, you made marriage dissoluble, you would really make women the slaves of their husbands. In nine cases out of ten, the man is the most independent, and could therefore tyrannise by the threat of dismissing his wife. By trying to forbid coercion, you do not really suppress it, but make its action arbitrary.

He apologises to a lady in a letter referring to another controversy upon the same subject in which he had used rather strong language about masculine 'superiority.' 'When a beast is stirred up,' he says, 'he roars rather too loud,' and 'this particular beast loves and honours and wors.h.i.+ps women more than he can express, and owes most of the happiness of his life to them.' By 'superior' he only meant 'stronger'; and he only urges a 'division of labour,' and a correspondence between laws and facts. This was, I think, strictly true, and applies to other parts of his book. Partly from pugnacity and partly from contempt of sentimentalism, he manages to put the harsher side of his opinions in front. This appears as we approach the ultimate base of his theory.

I have spoken more than once of Fitzjames's respect for Hobbes. For Hobbes's theory of sovereignty, and even its application by the ultramontane De Maistre, had always an attraction for him. Hobbes, with his logical thoroughness, seems to carry the foundations of policy down to the solid rock-bed of fact. Life is a battle; it is the conflict of independent atoms; with differing aims and interests. The strongest, in one way or other, will always rule. But the conflict may be decided peacefully. You may show your cards instead of playing out the game; and peace may be finally established though only by the recognition of a supreme authority. The one question is what is to be the supreme authority? With De Maistre it was the Church; with Fitzjames as with Hobbes it was the State. The welfare of the race can only be secured by order; order only by the recognition of a sovereign; and when that order, and the discipline which it implies, are established, force does not cease to exist: on the contrary, it is enormously increased in efficacy; but it works regularly and is distributed harmoniously and systematically instead of appearing in the chaotic clas.h.i.+ng of countless discordant fragments. The argument, which is as clear as Euclid in the case of marriage, is valid universally. Society must be indissoluble; and to be indissoluble must recognise a single ultimate authority in all disputes. Peace and order mean subordination and discipline, and the only liberty possible is the liberty which presupposes such 'coercion.'

The theory becomes harsh if by 'coercion' we mean simply 'physical force' or the fear of pain. A doctrine which made the hangman the ultimate source of all authority would certainly show brutality. But nothing could be farther from Fitzjames's intention than to sanction such a theory. His 'coercion' really includes an appeal to all the motives which make peace and order preferable to war and anarchy. But it is, I also think, a defect in the book that he does not clearly explain the phrase, and that it slips almost unconsciously into the harsher sense. He tells us, for example, that 'force is dependent upon persuasion and cannot move without it.'[148] n.o.body can rule without persuading his fellows to place their force at his disposal; and therefore he infers 'persuasion is a kind of force.' It acts by showing people the consequences of their conduct. He calls controversy, again, an 'intellectual warfare,' which, he adds, is far more searching and effective than legal persecution. It roots out the weaker opinion. And so, when speaking of the part played by coercion in religious developments, he says that 'the sources of religion lie hid from us.

All that we know is that now and again in the course of ages someone sets to music the tune which is haunting millions of ears. It is caught up here and there, and repeated till the chorus is thundered out by a body of singers able to drown all discords, and to force the unmusical ma.s.s to listen to them.'[149] The word 'force' in the last sentence shows the transition. Undoubtedly force in the sense of physical and military force has had a great influence in the formation both of religions and nations. We may say that such force is 'essential'; as a proof of the energy and often as a condition of the durability of the inst.i.tutions. But the question remains whether it is a cause or an effect; and whether the ultimate roots of success do not lie in that 'kind of force' which is called 'persuasion'; and to which n.o.body can object. If coercion be taken to include enlightenment, persuasion, appeals to sympathy and sentiment, and to imagination, it implies an ultimate social groundwork very different from that generally suggested by the word. The utilitarian and individualist point of view tends necessarily to lay stress upon bare force acting by fear and physical pain. The utilitarian 'sanctions' of law must be the hangman and the gaoler. So long as society includes unsocial elements it must apply motives applicable to the most brutal. The hangman uses an argument which everyone can understand. In this sense, therefore, force must be the ultimate sanction, though it is equally true that to get the force you must appeal to motives very different from those wielded by the executioner. The application of this a.n.a.logy of criminal law to questions of morality and religion affects the final conclusions of the book.

Fitzjames's whole position, if I have rightly interpreted him, depends essentially upon his moral convictions. The fault which he finds with Mill is precisely that Mill's theory would unmoralise the state. The state, that is, would be a mere a.s.sociation for mutual insurance against injury instead of an organ of the moral sense of the community. What, then, is morality? How are we to know what is right and wrong, and what are our motives for approving and disapproving the good and the bad?

Fitzjames uses phrases, especially in his letters, where he is not arguing against an adversary, which appear to be inconsistent, if not with utilitarianism, at least with the morality of mere expediency. Lord Lytton, some time after this, wrote to him about his book, and he replies to the question, 'What is a good man?'--'a man so const.i.tuted that the pleasure of doing a n.o.ble thing and the pain of doing a base thing are to him the greatest of pleasures and pains.' He was fond, too, of quoting, with admiration, Kant's famous saying about the sublimity of the moral law and the starry heavens. The doctrine of the 'categorical imperative' would express his feelings more accurately than Bentham's formulae. But his reasoning was different. He declares himself to be a utilitarian in the sense that, according to him, morality must be built upon experience. 'The rightness of an action,' he concludes, 'depends ultimately upon the conclusions at which men may arrive as to matters of fact.'[150] This, again, means that the criterion is the effect of conduct upon happiness. Here, however, we have the old difficulty that the estimate of happiness varies widely. Fitzjames accepts this view to some extent. Happiness has no one definite meaning, although he admits, in point of fact, there is sufficient resemblance between men to enable them to form such morality as actually exists.

But is such morality satisfactory? Can it, for example, give sufficient reasons for self-sacrifice--that is, neglect of my own happiness?

Self-sacrifice, he replies, in a strict sense, is impossible; for it could only mean acting in opposition to our own motives of whatever kind--which is an absurdity.[151] But among real motives he admits benevolence, public spirit, and so forth, and fully agrees that they are constantly strong enough to overpower purely self-regarding motives. So far, it follows, the action of such motives may be legitimately a.s.sumed by utilitarians. He is, therefore, not an 'egoistic' utilitarian. He thinks, as he says in a letter referring to his book, that he is 'as humane and public-spirited as his neighbours.' A man must be a wretched being who does not care more for many things outside his household than for his own immediate pains and pleasures. Had he been called upon to risk health or life for any public object in India, and failed to respond, he would never have had a moment's peace afterwards. This was no more than the truth, and yet he would sometimes call himself 'selfish' in what I hold to be a non-natural sense. He frequently complains of the use of such words as 'selfishness' and 'altruism' at all. Selfishness, according to him, could merely mean that a man acts from his own motives, and altruism would mean that he acted from somebody else's motives. One phrase, therefore, would be superfluous, and the other absurd. He insists, however, that, as he puts it, 'self is each man's centre, from which he can no more displace himself than he can leap off his own shadow.'[152] Since estimates of happiness differ, the morality based upon them will also differ.[153] And from selfishness in this sense two things follow. First, I have to act upon my own individual conception of morality.

If, then, I meet a person whose morality is different from mine, and who justifies what I hold to be vices, I must behave according to my own view. If I am his ruler, I must not treat him as a person making a possibly useful experiment in living, but as a vicious brute, to be restrained or suppressed by all available means. And secondly, since self is the centre, since a 'man works from himself outwards,' it is idle to propose a love of humanity as the guiding motive to morality.

'Humanity is only "I" writ large, and zeal for humanity generally means zeal for My Notions as to what men should be and how they should live.'[154]

This, therefore, leads to the ultimate question: What, in the utilitarian phrase, is the 'sanction' of morality? Here his answer is, on one side at least, emphatic and unequivocal. Mill and the positivists, according to him,[155] propose an utterly unsatisfactory motive for morality. The love of 'humanity' is the love of a mere shadowy abstraction. We can love our family and our neighbours; we cannot really care much about the distant relations whom we shall never see. Nay, he holds that a love of humanity is often a mask for a dislike of concrete human beings. He accuses Mill of having at once too high and too low an opinion of mankind.[156] Mill, he thinks, had too low an estimate of the actual average Englishman, and too high an estimate of the ideal man who would be perfectly good when all restraints were removed. He excused himself for contempt of his fellows by professing love for an abstraction. To set up the love of 'humanity,' in fact, as a governing principle is not only impracticable, but often mischievous. A man does more good, as a rule, by working for himself and his family, than by acting like a 'moral Don Quixote,[157] who is capable of making love for men in general the ground of all sorts of violence against men in particular.' Indeed, there are many men whom we ought not to love. It is hypocrisy to pretend to love the thoroughly vicious. 'I do not love such people, but hate them,' says Fitzjames; and I do not want to make them happy, because I could only do so by 'pampering their vices.'[158]

Here, therefore, he reaches the point at which his utilitarian and his Puritanical prepossessions coincide. All law, says the utilitarian, implies 'sanctions'--motives equally operative upon all members of society; and, as the last resort, so far as criminal law is concerned, the sanction of physical suffering. What is the corresponding element in the moral law? To this, says Fitzjames, no positivist can give a fair answer. He has no reply to anyone who says boldly, 'I am bad and selfish, and I mean to be bad and selfish.'[159] The positivists can only reply, 'Our tastes differ.' The great religions have answered differently. We all know the Christian answer, and 'even the Buddhists had, after a time, to set up a h.e.l.l.' The reason is simple. You can never persuade the ma.s.s of men till you can threaten them. Religions which cannot threaten the selfish have no power at all; and till the positivists can threaten, they will remain a mere 'Ritualistic Social Science a.s.sociation.' Briefly, the utilitarian asks, What is the sanction of morality? And the Puritan gives the answer, h.e.l.l. Here, then, apparently, we have the keystone of the arch. What is the good of government in general? To maintain the law? And what is the end of the law? To maintain morality. And why should we maintain morality? To escape h.e.l.l. This, according to some of his critics, was Fitzjames's own conclusion. It represents, perhaps in a coa.r.s.e form, an argument which Fitzjames was never tired of putting since the days when he worked out the theory of h.e.l.l at school.

It would, however, be the grossest injustice to him if I left it to be supposed for a moment that he accepted this version of his doctrine. He repudiated it emphatically; and, in fact, he modifies the doctrine so much that the real question is, whether he does not deprive it of all force. No one was more sensible of the moral objections to the h.e.l.l of popular belief. He thought that it represented the Creator as a cruel and arbitrary tyrant, whose vengeance was to be evaded by legal fictions. Still, the absolute necessity of some 'sanction' of a spiritual kind seemed clear to him. Without it, every religion would fall to pieces, as every system of government would be dissolved without 'coercion.' And this is the final conclusion of his book in chapters with which he was, as I find from his letters, not altogether satisfied.

He explains in the preface to his second edition that the question was too wide for complete treatment in the limits. Briefly the doctrine seems to be this. The Utilitarian or Positivist can frame a kind of commonplace morality, which is good as far as it goes. It includes benevolence and sympathy; but hardly gets beyond ordering men to love their friends and hate their enemies. To raise morality to a higher strain, to justify what it generally called self-sacrifice, to make men capable of elevated action, they require something more. That something is the belief in G.o.d and a future world. 'I entirely agree,' he says, 'with the commonplaces about the importance of these doctrines.'[160]

'If they be mere dreams life is a much poorer and pettier thing, and mere physical comfort far more important than has. .h.i.therto been supposed. Morality, he says, depends on religion. If it be asked whether we ought to rise beyond the average utilitarian morality, he replies, 'Yes, if there is a G.o.d and a future state. No, if there is no G.o.d and no future state.'[161] And what is to be said of those doctrines, the ultimate foundation, if not of an average morality, yet of all morality above the current commonplaces? Here we have substantially the religious theory upon which I have already dwelt. He ill.u.s.trates it here by quotations from Mill, who admits the 'thread of consciousness' to be an ultimate inexplicability, and by a pa.s.sage from Carlyle, 'the greatest poet of the age,' setting forth the mystery of the 'Me.' He believes in a Being who, though not purely benevolent, has so arranged the universe, that virtue is the law prescribed to his creatures. The law is stern and inflexible, and excites a feeling less of love than of 'awful respect.'

The facts of life are the same upon any theory; but atheism makes the case utterly hopeless. A belief in G.o.d is inextricably connected with a belief in morality, and if one decays the other will decay with it.

Still it is idle to deny that the doctrines are insusceptible of proof.

'Faith says, I will, _though_ I am not sure; Doubt says, I will not, _because_ I am not sure; but they both agree in not being sure.'[162] He utterly repudiates all the attempts made by Newman and others to get out of the dilemma by some logical device for trans.m.u.ting a mere estimate of probabilities into a conclusion of demonstrable cert.i.tude. We cannot get beyond probabilities. But we have to make a choice and to make it at our peril. We are on a pa.s.s, blinded by mist and whirling snow. If we stand still, 'we shall be frozen to death. If we take the wrong road, we shall be dashed to pieces. We do not certainly know whether there is any right one. What must we do? "Be strong and of a good courage." Act for the best, hope for the best, and take what comes. Above all let us dream no dreams and tell no lies, but go our way, wherever we may land, with our eyes open and our heads erect. If death ends all, we cannot meet it better. If not, let us enter the next scene with no sophistry in our mouths and no masks on our faces.'[163]

A conclusion of this kind could commend itself neither to the dogmatist who maintains the certainty of his theories, nor to the sceptic who regards them as both meaningless and useless. I have dwelt upon them so long because they seem to me to represent a substantially logical and coherent view which commended itself to a man of very powerful intellect, and which may be presumed to represent much that other people hold less distinctly. The creed of a strong man, expressed with absolute sincerity, is always as interesting as it is rare; and the presumption is that it contains truths which would require to be incorporated in a wider system. At any rate it represents the man; and I have therefore tried to expound it as clearly as I could. I may take it for granted in such references as I shall have to make in the following pages to my brother's judgment of the particular events in which he took part. Mill himself said, according to Professor Bain,[164] that Fitzjames 'did not know what he was arguing against, and was more likely to repel than to attract.' The last remark, as Professor Bain adds, was the truest. Mill died soon afterwards and made no reply, if he ever intended to reply.

The book was sharply criticised from the positivist point of view by Mr.

Harrison, and from Mill's point of view by Mr. John Morley in the 'Fortnightly Review' (June and August 1873). Fitzjames replied to them in a preface to a second edition in 1874. He complains of some misunderstandings; but on the whole it was a fair fight, which he did not regret and which left no ill-feeling.

III. DUNDEE ELECTION

The last letter of the series had hardly appeared in the 'Pall Mall Gazette,' when Fitzjames received an application to stand for Liverpool in the Liberal interest. He would be elected without expense to himself.

He thought, as he observes, that he should find parliamentary life 'a nuisance'; but a seat in the House might of course further both his professional prospects and his schemes of codification. He consulted Coleridge, who informed him that, if Government remained in office, a codification Commission would be appointed. Coleridge was also of opinion that, in that event, Fitzjames's claims to a seat on the Commission would be irresistible. As, however, it was intended that the Commissioners should be selected from men outside Parliament and independent of political parties, Fitzjames would be disqualified by an election for Liverpool. Upon this he at once declined to stand. A place in a codification Commission would, he said, 'suit him better than anything else in the world.' Coleridge incidentally made the remark, which seems to be pretty obvious, that the authors.h.i.+p of the letters upon 'Liberty, Equality, Fraternity' would be a rather awkward burthen for a Liberal candidate to carry.

For some time Fitzjames might hope, though he hoped with trembling, that something would come of his various codifying projects. It was reported that Mr. Bruce (Lord Aberdare) would introduce the Homicide Bill during Russell Gurney's absence. Coleridge was able after many delays to introduce the Evidence Bill. But it was crowded out of sight by more exciting measures, and it was only upon its final withdrawal on the last day of the session (August 5, 1873) that he could say a few words about it.[165] The Bill was apparently ordered to be printed, but never became public. It went to the parliamentary limbo with many of its brethren.

In the session of 1873 the Government was beginning to totter. The ministerial crisis of March, upon the defeat of the Irish University Bill, was followed by Mr. Gladstone's resignation. He returned to office, but had to attend to questions very different from codification.

'My castle of cards has all come down with a run,' writes Fitzjames (March 14, 1873); 'Gladstone is out of office; Coleridge is going out; my Evidence Act and all my other schemes have blown up--and here am I, a briefless, or nearly briefless, barrister, beginning the world all over again.... I have some reason to think that, if Gladstone had stayed in, I should, in a few weeks, have been Solicitor-General, and on my way to all sorts of honour and glory.' However, he comforts himself with various proverbs. His favourite saying on these occasions, which were only too common, was 'Patience, and shuffle the cards.' The Gladstone Ministry, however, was patched up, and things looked better presently.

'I am,' he says in May, 'in the queerest nondescript position--something between Solicitor-General and Mr. Briefless--with occasional spurts of business' which look promising, but in frequency resemble angelic visits. On June 27 he announces, however, that a whole heap of briefs 'has come in, and, to crown all, a solemn letter came yesterday from the Lord Chancellor, offering to appoint me to act as circuit judge in the place of Lush, who stays in town to try that lump of iniquity, the Claimant.' He was, accordingly, soon at the Winchester a.s.sizes, making a serious experiment in the art of judging, and finding the position thoroughly congenial. He is delighted with everything, including Chief Baron Kelly, a 'very pleasant, chatty old fellow,' who had been called to the bar fifty years before, and was still bright and efficient.

Fitzjames's duties exactly suit him. They require close attention, without excessive labour. He could judge for nine hours a day all the year round without fatigue. He gets up at 5.30, and so secures two or three hours, 'reading his books with a quiet mind.' Then there is the pleasure of choosing the right side, instead of having to take a side chosen by others; while 'the constant little effort to keep counsel in order, and to keep them also in good humour, and to see that all things go straight and well, is to me perfectly exquisite.' His practice in journalism has enabled him to take notes of the evidence rapidly, without delaying the witnesses; and he is conscious of doing the thing well and giving satisfaction. The leader of the circuit pays him 'a most earnest compliment,' declaring that the 'whole bar are unanimous in thinking the work done as well as possible. This,' he says, 'made me very happy, for I know, from knowing the men and the bar, it is just the case in which one cannot suspect flattery. If there are independent critics in this world, it is British barristers.' Briefly, it is a delicious 'Pisgah sight of Palestine.' If, in Indian phrase, he could only become 'pucka' instead of 'kucha'--a permanent instead of temporary judge--he would prefer it to anything in the world. He feels less anxious, and declares that he has 'not written a single article this week'; though he manages when work is slack, to find time for a little writing, such as the chapter in Hunter's 'Life of Lord Mayo.'

The a.s.sizes were being held at Salisbury soon afterwards, when Fitzjames was summoned to London by a telegram from Coleridge. Coleridge had to tell him that if he could stand for Dundee, where a vacancy had just occurred, he would probably be elected; and that, if elected, he would probably, though no pledge could be given, be made Solicitor-General.

Lord Romilly had retired from the Masters.h.i.+p of the Rolls in March. The appointment of his successor was delayed until the Judicature Act, then before Parliament, was finally settled. As, however, Coleridge himself or the Solicitor-General, Sir G. Jessel, would probably take the place, there would be a vacancy in the law offices. Fitzjames hesitated; but, after consulting Lord Selborne, and hearing Coleridge's private opinion that he would be appointed Solicitor-General even if he failed to win the seat, he felt that it would be 'faint-hearted' to refuse. He was to sit as judge, however, at Dorchester, and thought that it would be improper to abandon this duty. The consequent delay, as it turned out, had serious effects. From Dorchester he hurried off to Dundee.

He writes from Dundee on Sunday, July 27, 1873, giving an account of his proceedings. He had been up till 5 A.M. on the morning of the previous Tuesday, and rose again at eight. He did not get to bed till 3 A.M. on Wednesday. He was up at six, went to Dorchester, and attended a 'big dinner,' without feeling sleepy. On Thursday he tried prisoners for four hours; then went to London, and 'rushed hither and thither' from 10 P.M.

till 2 A.M. on Friday. He was up again at six, left by the 7.15 train, reached Dundee at 10.30, and was worried by deputations till past twelve. Part of the Liberal party had accepted another candidate, and met him with a polite request that he would at once return to the place whence he came. He preferred to take a night's rest and postpone the question. On Sat.u.r.day he again 'rushed hither and thither' all day; spoke to 2,000 people for nearly two hours, was 'heckled' for another hour in stifling heat, and had not 'the slightest sensation of fatigue,'

except a trifling headache for less than an hour. He was 'surprised at his own strength,' feeling the work less than he had felt the corresponding work at Harwich in 1865.

The struggle lasted till August 5, the day of polling. Fitzjames had to go through the usual experience of a candidate for a large const.i.tuency: speaking often six times a day in the open air; addressing crowded meetings at night; becoming involved in a variety of disputes, more or less heated and personal in their nature; and seeing from the inside the true nature of the process by which we manufacture legislators. It was the second election in Dundee affected by Disraeli's extension of the suffrage, and, I believe, the first election in the country which took place under the provisions of the Ballot Act. The work was hard and exciting, especially for a novice who had still to learn the art of speaking to large public meetings; but it was such work as many eager politicians would have enjoyed without reserve. To Fitzjames it was a practical lesson in politics, to which he submitted with a kind of rueful resignation, and from which he emerged with intensified dislike of the whole system concerned.

Dundee was a safe Liberal seat; the working cla.s.ses under the new system had an overwhelming majority; and no Tory candidate had ventured to offer himself.[166] Fitzjames was virtually the Government candidate.

One of his opponents, Mr. Yeaman, had been provost of Dundee, but his fame does not appear to have spread beyond his native town. While Fitzjames was lingering at Dorchester another candidate had come forward, Mr. Edward Jenkins, known as the author of 'Ginx's Baby.' This very clever little book, which had appeared a couple of years previously, had struck the fancy of the public, and run through a great number of editions. It reflected precisely the school of opinion which Fitzjames most cordially despised. The morality was that of d.i.c.kens's 'Christmas Carol,' and the political aim that of sentimental socialism.

Thus, though all three candidates promised to support Mr. Gladstone's Government, one of Fitzjames's rivals represented the stolid middle-cla.s.s prejudices, and a second the unctuous philanthropic enthusiasm, which he had denounced with his whole force in 'Liberty, Equality, Fraternity.' No combination could have been contrived which would have set before him more clearly the characteristics of the party of which he still considered himself to be a member.

From the beginning he felt himself to be, in some respects, in a false position. 'My dislike of the business,' he says at starting, 'is not the least due to weakness or over-delicacy, but to a deep-rooted disgust at the whole system of elections and government by const.i.tuencies like this.' Three days' experience do not change his view. It is, he says, 'hateful work--such a noise, such waste of time, such unbusinesslike, raging, noisy, irregular ways, and such intolerable smallness in the minds of the people, that I wonder I do not do it even worse.' He could scarcely stand a month of it for a certainty of the Solicitor-Generals.h.i.+p. On the day before the poll he observes that 'it is wretched, paltry work.' A local paper is full of extracts from his 'Liberty, Equality, Fraternity,' which, he fears, will not help him.

However, 'it was very good fun writing it.' And meanwhile, Mr. Jenkins was making speeches which showed that 'his heart beat in unison with the people's,' and speaking 'earnest words' on Sunday afternoon to boys on a training s.h.i.+p. Even an enthusiastic speech from one of Fitzjames's supporters at a large meeting, which was followed by a unanimous vote of approval, 'nearly made him sick--it was so unspeakably fulsome.' It was no wonder that he should be inclined to be disgusted with the whole business.

Considering the general uncongeniality of the surroundings, the most remarkable thing was that he made so good a fight as he did. He was encouraged by the presence of his brother by adoption and affection, Frederick Gibbs. 'No one,' he reports, 'could be kinder or more sensible; and he is as cool as a cuc.u.mber, and not shocked by my cynical heresies.' From Frederick Gibbs, as he afterwards reports, he has received the 'best and wisest' advice on every point. The 'cynical heresies' to which he refers were simply those already expounded in his book. He said precisely what he thought, and as vigorously as he could say it. A campaign paper, called the 'Torch,' published by some of his supporters, sums up the difference between him and Mr. Jenkins. 'Mr.

Stephen's liberalism,' says the 'Torch,' 'is much nearer to radicalism than the liberalism of Mr. Jenkins. Mr. Stephen's liberalism is the liberalism of self-help, of individualism, of every form of conscious industry and energy. It is the only liberalism which has the smallest chance of success in Scotland. The liberalism of Mr. Jenkins is the liberalism of state aid, of self-abas.e.m.e.nt, of incapacity and indolence'; and leads straight to sentimental communism. According to a 'working man' who writes to the paper, Mr. Jenkins virtually proposes that the industrious part of the working cla.s.ses are to support the children of the lazy, idle, and improvident--a principle which many people now seem inclined to regard as defensible.

Fitzjames's accounts of his own speeches are to the same purpose. He has repeated, he says, what he has always and everywhere maintained--that people must 'help themselves, and that every cla.s.s of society is bound together, and is in one boat and on one bottom.' I have read the reports in the local newspapers, which fully confirm this statement; but I need only notice one point. He manages to get in a good word for codification, and ill.u.s.trates his argument by an ingenious parallel with Bradshaw's 'Railway Guide.' That 'code' is puzzling enough as it is; but what would be our state if we had to discover our route by examining and comparing all the orders given by the directors of railways from their origin, and interpreting them in accordance with a set of unwritten customs, putting special meanings upon the various terms employed?

The educated cla.s.ses, as the 'Torch' a.s.serts, and as his supporters told him, were entirely in his favour; and, had the old suffrage remained unaltered, no one else would have had a chance against him. Not only so, but they declared that every speech he made was converting the working cla.s.ses. He is told that, if he had longer time, he would be able to 'talk them all round.' His speeches obviously impressed his hearers for the time. 'You cannot imagine,' he says on August 2, 'how well I get on with the people here, working men as well as gentry. They listen with the deepest attention to all I say, and question me with the keenest intelligence.' He admits, indeed, that there is no political sympathy between him and his hearers. They want a 'thorough-going radical,' and he cannot pretend to be one--'it is forced out on all occasions.' In fact, he was ill.u.s.trating what he had said in his book. He heartily liked the individual working man; but he had no sympathy with the beliefs which find favour with the abstract or collective working man, who somehow manages to do the voting. They seem to have admired his force, size, and manliness. 'Eh, but ye're a wiselike mon ony way,' says a hideous old woman (as he ungratefully calls her), which, he is told, is the highest of Scottish compliments to his personal appearance. This friendly feeling, and the encouragement of his supporters, and the success of his speeches, raised his hopes by degrees, and he even 'felt a kind of pride in it,' though 'it is poor work educating people by roaring at them.' Towards the end he even thinks it possible that he may win, and, if so, 'it will be an extraordinary triumph, for I have never asked one single person to support me, and I have said the most unpopular things to such an extent that my supporters told me I was over-defiant, or, indeed, almost rude.'

However, it was not to be. Whether, as his friends said, he was too good for the place, or whether less complimentary reasons alleged by his opponents might be justified, he was hopelessly behind at the polls. He received 1,086 votes; Mr. Jenkins, 4,010; and Mr. Yeaman, 5,207--or rather more than both his opponents together. Fitzjames comforts himself by the reflection that both he and Mr. Jenkins had shown their true colours; that the respectable people had believed in him 'with a vengeance,' and that the working men were beginning to like him. But Mr.

Jenkins's views were, and naturally must be, the most popular.

Fitzjames's chief supporter gave a dinner in his honour, when his health was drunk three times with boundless enthusiasm, and promises were made of the heartiest support on a future occasion. The fulfilment of the promises was not required; and Fitzjames, in spite of occasional overtures, never again took an active part in a political contest.

In 1881, Lord Beaconsfield wrote to Lord Lytton: 'It is a thousand pities that J. F. Stephen is a judge; he might have done anything and everything as leader of the future Conservative party.' Lord Beaconsfield was an incomparably better judge than I can pretend to be of a man's fitness for such a position. The opinion, too, which he thus expressed was shared by some of Fitzjames's friends, who thought that his masculine force of mind and downrightness of character would have qualified him to lead a party effectively. I shall only say that it is idle to speculate on what he might haw done had he received the kind of training which seems to be generally essential to success in political life. He might, no doubt, have learnt to be more tolerant of the necessary compromises and concessions to the feelings engendered by party government. As it was, he had, during his early life, taken so little interest in the political movements of the day, and, before he was dragged for a time into the vortex, had acquired so many prepossessions against the whole system, that I cannot but think that he would have found a difficulty in allying himself closely with any party.

He considered the Tories to be not much, if at all, better than the Radicals; and he would, I fancy, have discovered that both sides had, in Lowell's phrase, an equal facility for extemporising lifelong convictions. Upon this, however, I need not dwell. In any case, I think that the Dundee defeat was a blessing in disguise; for, had he been elected and found himself enlisted as a supporter of Mr. Gladstone, his position would have been almost comically inappropriate. A breach would, doubtless, have followed; and perhaps it would have been an awkward business to manage the transition with delicacy.

Fitzjames, in fact, discovered at Dundee that he was not really a 'Liberal' in the sense used in modern politics. His 'liberalism,' as the 'Torch' said, meant something radically opposed to the ideas which were becoming dominant with the party technically called by the name. His growing recognition of a fact which, it may perhaps be thought, should have already been sufficiently obvious, greatly influenced his future career. Meanwhile, he went back to finish his duties as Commissioner at the a.s.sizes, and to reflect upon the lessons which, as he said, he had learnt at Dundee. He had fresh ideas, he said, as to politics and the proper mode of treating them. He propounded some of his doctrines in a couple of lectures upon 'Parliamentary Government,' delivered to the Edinburgh Philosophical Society in the following November.[167] He describes some of the familiar consequences; shows how our administrative system has become an 'aggregate of isolated inst.i.tutions'; and how the reduction of the Royal power to a cipher has led to the subst.i.tution of a set of ministers, each a little king in his own department, and s.h.i.+fted backwards and forwards in obedience to popular sentiment. One result is the subordination to party purposes of important interests not essentially connected with them. At the present moment, he says, a disaster on the west coast of Africa would affect the prospects of popular education. That is as rational as it would be to change your lawyer because you have had to discharge your cook.

Fitzjames, however, was under no illusions. He fully admits that parliamentary government is inevitable, and that foreign systems are in some respects worse, and, in any case, incapable of being introduced.

He confines himself to suggesting that some departments of administration and legislation might be withdrawn from the influence of our party system.

IV. CODIFICATION IN ENGLAND

Fitzjames had returned to act again as Commissioner at Wells. There he had to listen to a vehement sermon from Archdeacon Denison, in favour of auricular confession, and glancing, as his hearer fancied, at a certain article in the 'Pall Mall Gazette.' He had afterwards a pleasant chat with Freeman, 'not a bad fellow at all,' though obviously a 'terrible pedant.' He hears from Coleridge, who has finally decided against accepting the Masters.h.i.+p of the Rolls, and hopes that Fitzjames may still be his colleague. The old Chief Baron is still charming, and says ('though I don't believe it') that he never knew what mental fatigue meant, and that when he was Solicitor-General he was never in bed for more than two or three hours for four or five nights a week ('which, again, I do not believe'). However, it is undeniable that he can still do his work as well as many younger men.

The chance of the Solicitor-Generals.h.i.+p was soon extinguished. Coleridge was friendly, but explained that political considerations might prevent any attention being paid to his personal wishes. In September, in fact, Sir Henry James was appointed to the vacant post and the hope finally disappeared. There was still, however, a possibility of a seat on the bench, which would please him still better. He feels that his proper place is out of Parliament. He could exercise more influence 'than all the Solicitor-Generals in the world' by simply devoting himself to writing, and he is full of plans for books. But he would like to be a judge for the sake both of the money and the work. 'The administration of justice is really the best thing which is going on in the nation.' On January 9, 1874, however, he announces that his little 'bubble about the judges.h.i.+p, which looked a very bright bubble indeed, has gone where all bubbles go.' Twenty people had congratulated him upon his appointment and three judges had written to recommend clerks. Last night he had heard decisively that he was not to have it. Coleridge, too, had become Lord Chief Justice and the Government business had gone elsewhere. Well, he will 'put on some extra work to keep hold of the wolf's ears which he has held so long.' Coleridge, I may add, still took an interest in Fitzjames's codification schemes, and they even agreed, or rather vaguely proposed, to act the parts of 'Moses and Aaron,' Fitzjames inspiring measures of which Coleridge was to take charge in the House of Lords. This dream, however, vanished like others.

The dissolution of Parliament in January, 1874, was followed by a general election. Proposals were made to Fitzjames to stand at several places; including Dundee, where, however, Mr. Jenkins was elected. For one reason or other he declined the only serious offers, and was 'not sorry.' He could not get over 'his dislike to the whole affair.' He 'loathed elections,' and 'could not stand the idea of Parliament.'

Disraeli soon came into office, and 'the new ministry knew not Joseph.'

Fitzjames had quite got over his disappointment about the judges.h.i.+p, though he admits that he had at first felt it 'bitterly.' He has not known how to find favour with chancellors or ministers. He therefore resolves to make his own way; he cares more for what he is in himself than for the position he holds; and he reconciles himself 'to the prospect which obviously lies before him,' of obscure hard 'labour for a good many years.' He 'puts away all his fair hopes in his pocket, and resolves to do three things: a good bit of codifying,' whether on his own account or for Government; a little book about India; and finally the _magnum opus_ which he had so long meditated, which he thought that he ought to begin when he was fifty (he was at this time just forty-five), and which might take about fifteen years. The little book about India is afterwards frequently mentioned in his letters under its proposed t.i.tle, 'The English in India.' It was, I think, to be more or less historical, and to occupy some of the ground covered by Sir Alfred Lyall's 'British Dominion in India.' It never took definite shape, but led to the work upon Impey, of which I shall have to speak hereafter.

Meanwhile he is not without some good professional omens. He feels that he will have to 'restrict his circuiteering,' and not to go to most of the towns without special retainers. Good work is coming to him in London, though not so frequently as might be wished.

The codifying, in fact, took up much of his time. The 'Homicide Bill'

was introduced into Parliament this year (1874) by Russell Gurney, and referred to a Select Committee. They consulted c.o.c.kburn, Bramwell, and Blackburn, who appear to have been on the whole hostile. Bramwell, however, declared that the Bill was 'excellently drawn,' and in a friendly letter to Fitzjames condemned the spirit of hostility in which it had been received by other judges. The main objection put forward by c.o.c.kburn and accepted by the Committee was the objection to a partial measure. The particular question of homicide involved principles applying to other parts of the criminal law; and a partial treatment would only serve to introduce confusion and doubt. The Committee accordingly recommended that the Bill should be dropped. Fitzjames accepted this not as a reason for abandoning the attempt but for extending the scope of the proposed measure. The result will appear presently.