The Life of Sir James Fitzjames Stephen, Bart., K.C.S.I Part 10

[Footnote 76: Reprinted in _Essays by a Barrister_.]

[Footnote 77: See especially his article upon 'Jurisprudence' in the _Edinburgh Review_ for October 1861.]

[Footnote 78: Reprinted in _Essays by a Barrister_.]

[Footnote 79: It is characteristic that although in April 1862 I find him saying that he is at the end of 'two years of as hard and unremitting work as ever he did in his life,' I am quite unable to make out why the years should be limited to two: and certainly the work became no lighter afterwards.]

[Footnote 80: Chap. vi. in first edition, p. 69.]

[Footnote 81: Dr. Williams printed privately some _Hints to my Counsel in the Court of Arches_, of which Mrs. Williams has kindly sent me a copy. He declares that he 'accepts the Articles as they are, and claims to teach them with fidelity and clearness unsurpa.s.sed by living man.' No one, I think, can doubt his perfect sincerity. The 'hints' probably suggested some of the quotations and arguments in my brother's defence'; but there is no close coincidence. Dr. Williams cordially expressed his satisfaction with his counsel's performance.]

[Footnote 82: _Defence_, pp. 19, 20.]

[Footnote 83: _Defence_, p. 108.]

[Footnote 84: The substance of much of this paper is given in an article called 'Women and Scepticism' in _Fraser's Magazine_ for December 1863.]

[Footnote 85: _Fraser's Magazine_, February 1864.]

[Footnote 86: _Pall Mall Gazette_, October 2, 1867. I shall speak of his contributions to this paper presently.]

[Footnote 87: _Pall Mall Gazette_, November 26, 1868.]

[Footnote 88: Mr. Froude promised me some recollections of this intimacy; but the promise was dissolved by his death in 1894.]

[Footnote 89: Preface.]

[Footnote 90: See 'Bentham' in _Horae Sabbaticae_, iii. 210-229, published originally about this time.]

[Footnote 91: _View of Criminal Law_, p. 167.]

[Footnote 92: E.g. _Works_, vii. 321, &c.]

[Footnote 93: See articles on Courts-Martial in _Cornhill_ for June 1862.]

[Footnote 94: _View of Criminal Law_, p. 232.]

[Footnote 95: _View of Criminal Law_, p. 232.]

[Footnote 96: One of his smartest phrases was occasioned by Mr. Greg declaring himself to be a Christian. He was such a Christian, said Fitzjames, as an early disciple who had admired the Sermon on the Mount, but whose attention had not been called to the miracles, and who had died before the resurrection.]

[Footnote 97: Contributions of James Fitzjames Stephen to the _Pall Mall Gazette_ (kindly sent to me by Mr. George Smith):--

Dates Articles Occasional notes Correspondence 1865 143 103 8 1866 147 36 22 1867 194 27 9 1868 226 29 11 1869 142 5 -- 1870 14 -- -- 1872 112 3 2 1873 96 1 7 1874 39 2 8 1875 6 -- 5 1878 1 -- --]

[Footnote 98: 'Liberalism,' January 1862.]

[Footnote 99: Mr. Charles Buxton was the first chairman, but resigned because he thought a prosecution of Governor Eyre inexpedient, though not unjust. See J. S. Mill's _Autobiography_, pp. 296-299.]

[Footnote 100: It is substantially given in his _History of the Criminal Law_ (1883), i. 207-216.]

[Footnote 101: _Nuncomar and Impey_, ii. 271.]

CHAPTER IV

_INDIA_

I. PERSONAL HISTORY

Fitzjames reached Calcutta upon December 12, 1869. Henry Cunningham had made the long journey from Lah.o.r.e to pay him a few days' visit. The whole time was devoted to an outpour of talk productive of boundless satisfaction to one--I suppose that I may say to both--of them.

Fitzjames stayed in India until the middle of April 1872, and his absence from England, including the homeward and outward journeys, lasted for two years and a half. They were in some ways the most important years of his life; but they were monotonous enough in external incidents. I may briefly say that his wife joined him at Calcutta in the beginning of March 1870, and accompanied him to Simla. They diverged to pay a visit on the way to the Cunninghams at Lah.o.r.e. They stayed at Simla till the end of October, where, for five or six weeks in May and June, Fitzjames was laid up with a sharp attack of fever. This was his only illness in India, and the only interruption to work of more than a day or two's duration. On his return to Calcutta he visited Delhi, whence his wife returned to England for the winter. In April 1871 he went again to Simla, and on the way thither was rejoined at Allahabad by his wife. In the following November she returned to England, while he remained to spend the winter of 1871-2 in Calcutta and finish his official work.

He started in the best of health and in a sanguine frame of mind. He wrote his first letter to his mother from Boulogne (Nov. 9, 1869). 'I cannot tell you,' he says, 'how perfectly happy I feel in all my prospects. I never was more sure in my life of being right.... A whole ocean of small cares and worries has taken flight, and I can let my mind loose on matters I really care about.' He writes a (fourth) letter to his mother between Paris and Ma.r.s.eilles in the same spirit. 'I don't know whether you understand it,' he says, 'but if I had said "No" to India, I should feel as if I had been a coward and had lost the right to respect myself or to profess the doctrines I have always held and preached about the duty of doing the highest thing one can and of not making an idol of domestic comfort.' He continued to write to his mother regularly, dictating letters when disabled from writing by his fever, and the whole series, carefully numbered by her from 1 to 129, now lies before me. He wrote with almost equal regularity to other members of his family, of which he considered my sister-in-law, then Miss Thackeray,[102] to be an adopted member; and occasionally to other friends, such as Carlyle, Froude, and Venables. But to his mother he always devoted the first part of the time at his disposal. The pressure of work limits a few of these letters to mere a.s.sertions of his continued health and happiness; but he is always anxious to tell her any little anecdotes likely to interest her. I will give one of these, because it is striking in itself, and his frequent references to it showed how much it had impressed him. An English party, one of whom told him the story, visited a wild gorge on the Brahmapootra, famous for a specially holy shrine. There they fell in with a fakeer, who had wandered for twenty years through all the holy places between the Himalayas and Cape Comorin. He had travelled on foot; he had never lain down, and only rested at night by putting his arms through the loop of a rope. His body was distorted and his legs and arms wasted and painful.

He came with a set of villagers to the shrine which was to be the end of all his wanderings; 'did poojah,' and so finished his task. The villagers worshipped him, and prepared a feast and a comfortable bed; but the fakeer looked sad and said, 'No! When I began my journey the G.o.ddess Kali appeared to me and told me what I was to do. Had I done it rightly, she would have appeared again to tell me that she was satisfied. Now I must visit all the shrines once more,' and in spite of all persuasion he set out for another twenty years' penance. 'I a.s.sure you,' said the narrator, 'that I thought it very sad and did not laugh in the least.' 'Was not that,' says Fitzjames, 'a truly British comment?'

These and other letters have one peculiarity which I shall not exemplify by quotations. There are some feelings, as I find my father observing in one of his own letters, which it is desirable 'rather to intimate than to utter.' Among them many people, I think, would be inclined to reckon their tender affections for members of their own family. They would rather cover their strongest emotions under some veil of indirect insinuation, whether of playful caress or ironical depreciation, than write them down in explicit and unequivocal a.s.sertions. That, however, was not Fitzjames's style in any case. His words were in all cases as straightforward and downright as if he were giving evidence upon oath.

If he thinks ill of a man, he calls him bluntly a 'scoundrel' or 'a poor creature,' and when he speaks of those who were nearest and dearest to him he uses language of corresponding directness and energy. This method had certainly an advantage when combined with unmistakable sincerity.

There could be no sort of doubt that he meant precisely what he said, or that he was obeying the dictates of one of the warmest of hearts. But point-blank language of this kind seems to acquire a certain impropriety in print. I must ask my readers, therefore, to take it for granted that no mother could have received more genuine a.s.surances of the love of a son; and that his other domestic affections found utterance with all the strength of his masculine nature. 'I think myself,' as he sums up his feelings on one occasion, 'the richest and happiest man in the world in one of the greatest elements of richness and happiness'--that is, in the love of those whom he loves. That was his abiding conviction, but I shall be content with the general phrase.

One other topic must be just touched. His daughter Rosamond was at this time an infant, just learning to speak, and was with her mother at Simla in both summers, where also his youngest daughter, Dorothea, was born in 1871. Many of the letters to his mother are filled with nursery anecdotes intended for a grandmother's private reading, and certainly not to be repeated here. I mention the fact, however, because it was really significant. When his elder children were in the nursery, Fitzjames had seen comparatively little of them, partly because his incessant work took him away from home during their waking hours, and partly because he had not been initiated into the charm of infantile playfulness, while, undoubtedly, his natural stiffness and his early stoicism made the art of unbending a little difficult. Under the new conditions, however, he discovered the delightfulness of the relation between a bright little child and a strong grown-up man--at any rate when they are daughter and father. Henceforward he cultivated more directly an affectionate intercourse with his children, which became a great source of future happiness.

His correspondence, though active enough, did not occupy all his leisure on the journey. Parting from home, he says in a letter written in the train near Calcutta to his old friend Venables, was 'like cutting the flesh off my bones'; and ten minutes after beginning his solitary journey from Boulogne, he had sought distraction by beginning an article in the train. This was neither his first nor his last performance of that kind during the journey. He goes on to say that he had written twenty articles for the 'Pall Mall Gazette' between the days of leaving England and of landing at Bombay. 'With that and law I pa.s.sed the time very pleasantly, and kept at bay all manner of thoughts in which there was no use in indulging myself.' To pour himself out in articles had become a kind of natural instinct. It had the charm, if I may say so, of a vice; it gave him the same pleasure that other men derive from dramdrinking. 'If I were in solitary confinement,' he says, 'I should have to scratch newspaper articles on the wall with a nail. My appet.i.te, natural or acquired, has become insatiable.' When he had entered upon his duties at Calcutta he felt that there were objections to this indulgence, and he succeeded in weaning himself after a time. For the first three or four months he still yielded to the temptation of turning out a few articles on the sly; but he telegraphs home to stop the appearance of some that had been written, breaks off another in the middle, and becomes absorbed in the official duties, which were of themselves quite sufficient to satiate any but an inordinate appet.i.te for work.

Work, he says, is 'the very breath of my nostrils'; and he fell upon his official work greedily, not so much in the spirit of a conscientious labourer as with the rapture of a man who has at last obtained the chance of giving full sway to his strongest desires. The task before him surpa.s.sed his expectations. His functions, he says, are of more importance than those discharged by the Lord Chancellor in England. He compares himself to a schoolboy let loose into a pastrycook's shop with unlimited credit. The dainties provided, in the way of legislative business, are attractive in kind and boundless in quant.i.ty. The whole scene impresses him beyond expectation and calls out all his powers. One frequent subject of remark is the contrast between the work and the men who have to do it. The little body of Englishmen who have to rule a country, comparable in size and population to the whole of Europe without Russia, seem to him to combine the attributes of a parish vestry and an imperial government. The whole civil service of India, he observes, has fewer members than there are boys at one or two of our public schools. Imagine the Eton and Harrow boys grown up to middle age; suppose them to be scattered over France, Spain, Italy, Germany, and England; governing the whole population, and yet knowing all about each other with the old schoolboy intimacy. They will combine an interest in the largest problems of government with an interest in disputes as petty as those about the rules of Eton and Harrow football. The society is, of course, very small and mainly composed, as every society must be composed, of commonplace materials. Writing to Miss Thackeray during the outward voyage, he says that he will trespa.s.s upon her province and try to describe his companions. Among them are a set of 'jolly military officers 'who play whist, smoke and chaff, and are always exploding over the smallest of jokes. They are not like the people with whom he has. .h.i.therto a.s.sociated, but he will not depreciate them; for they know all kinds of things of which he is ignorant, and are made, as he perceives, just of the 'right kind of metal to take India and keep it.' In a letter to Venables, written a few months later, he describes his position as a sort of 'Benthamee Lycurgus,' and sets forth the problem which he is trying to solve in an official doc.u.ment then in course of preparation: 'Given corrupt natives, incompetent civilians, and a sprinkling of third-rate barristers, how to get perfect judges.' His estimate, indeed, of the merits of the Indian services, considered collectively, was the highest possible. He speaks of them not merely with appreciation but with an enthusiasm such as might have been generated in other men by a life pa.s.sed in India. In his last speech to the Council he said (and it was no more than he said in private), 'I have seen much of the most energetic sections of what is commonly regarded as the most energetic nation in the world; but I never saw anything to equal the general level of zeal, intelligence, public spirit and vigour maintained by the public service of this country.' Nothing could gratify him so much as the belief that he had in some degree lightened their labours by simplifying the rules under which they acted. Still, taken individually, they were average Englishmen, with rather less than the average opportunities for general intellectual culture; and, like every other small society, given to personal gossip, which was not very interesting to a grave and preoccupied outsider. I find him on one occasion reduced to making remarks upon a certain flirtation, which appears to have occupied the minds of the whole society at Simla; but as the prophecy upon which he ventures turned out to be wrong, there is a presumption that he had not paid proper attention to the accessible evidence.

He naturally, therefore, found little charm in the usual distractions from work. The climate, though it did not positively disagree with him, was not agreeable to him; and he found the material surroundings anything but comfortable. 'I have here found out what luxury is,' he said to a friend in Calcutta on his first arrival; 'it is the way in which I used to live at home.' The best that could be done in India was by elaborate and expensive devices to make up a bad imitation of English comforts. 'As for the light amus.e.m.e.nts,' he says, they are for the most part 'a negative quant.i.ty.' When he is pa.s.sing the winter by himself in Calcutta, he finds evening parties a bore, does not care for the opera, and has n.o.body with whom to carry on a flirtation--the chief resource of many people. He has, therefore, nothing to do but to take his morning ride, work all day, and read his books in the evening. He is afraid that he will be considered unsociable or stingy, and is indeed aware of being regarded as an exceptional being: people ask him to 'very quiet'

parties. He sticks to his 'workshop,' and there he finds ample employment. He was, indeed, too much in sympathy with Sir G. Cornewall Lewis's doctrine that 'life would be tolerable but for its amus.e.m.e.nts'

not to find a bright side to this mode of existence. A life of labour without relaxation was not far from his ideal. 'The immense amount of labour done here,' he says, 'strikes me more than anything else. The people work like horses, year in and year out, without rest or intermission, and they get hardened and toughened into a sort of defiant, eager temper which is very impressive.... I am continually reminded of the old saying that it is a society in which there are no old people and no young people. It certainly is the most masculine middle-aged, busy society that ever I saw, and, as you may imagine, I don't like to fall behind the rest in that particular.' He laboured, therefore, hard from the first--even harder as time went on; and came to feel the strongest sympathy with the energetic spirit of the body of which he was a member. He made some valued friends in India; chief among whom, I think, was Sir John Strachey, of whom he always speaks in the warmest terms, and whose friendship he especially valued in later years.

Another great pleasure was the renewed intercourse with the Cunninghams, who were able, in one way or another, to be a good deal with him. But he had neither time nor inclination for much indulgence in social pleasures.

It will be seen, therefore, that the Indian part of my story must be almost exclusively a record of such events as can take place within the four walls of an office. I shall have nothing to say about tiger-shooting, though Fitzjames was present, as a spectator, at one or two of Lord Mayo's hunting parties; nor of such social functions as the visit of the Duke of Edinburgh, though there, too, he was a looker-on; nor of Indian scenery, though he describes the distant view of the Himalayas from Simla, by way of tantalising an old Alpine scrambler. He visited one or two places of interest, and was especially impressed by his view of the shattered wall of Delhi, and of the places where his second cousin, Hodson, had seized the king and shot the princes. He wrote a description of these scenes to Carlyle; but I do not think that he was especially strong in descriptive writing, and I may leave such matters to others. What I have to do is to give some account of his legislative work. I recognise my incompetence to speak as one possessing even a right to any opinion upon the subject. My brother, however, has left in various forms a very full account of his own performances,[103]

and my aim will be simply to condense his statements into the necessary shape for general readers. I shall succeed sufficiently for the purpose if, in what follows, I can present a quasi-autobiographical narrative. I will only add that I shall endeavour to observe one condition, which I know would have been scrupulously observed by him--I mean the condition of not attributing to him any credit which would properly belong to others. His work formed part of a process, carried on both by his predecessors and successors; and it is not always possible to distinguish his share from that of others.[104]

II. OFFICIAL WORK IN INDIA

A demand for codification was among the traditions of the Utilitarians.

Bentham, born in 1748, had preached to deaf ears during the eighteenth century; but in the first quarter of the nineteenth he had gathered a little band of disciples, the foremost of whom was James Mill. The old philosopher had gradually obtained a hearing for his exhortations, echoed in various forms by a growing, confident, and energetic body, and his great watchword was 'Codify.' He had found hearers in foreign countries, especially in Russia, Spain, and various American States; but his own countrymen had been among the last to listen. Gradually, however, as the pa.s.sion and prejudice of the war period pa.s.sed away and the movement which culminated in the Reform Bill of 1832 gathered strength, it became apparent that the stubborn conservatism, even of the great tacit corporation of lawyers, would have to yield. The supremacy of Eldon was beginning to be shaken. Sir Robert Peel began to reform the criminal law about 1827, taking up the work upon which Bentham's friend and disciple, Romilly, had laboured for years with infinitesimal results. Commissions were appointed to work upon legal reforms. With parliamentary reform an era of rapid and far-reaching changes set in, though Bentham died on the eve of entering the land of promise.

When, therefore, the charter of the last India Company was renewed in 1833, it was natural that some place should be found for codification.

James Mill, upon whom Bentham's mantle had fallen, held a leading position at the India House, and his evidence before a parliamentary committee had an important influence in determining the outlines of the new system. One of the four members of the Council of the Governor-General was henceforth to be appointed from persons not servants of the Company. He was to attend only at meetings for framing laws and regulations. Macaulay, the first holder of this office, went to India in 1834 and prepared the penal code. One of his a.s.sistants, C. H.

Cameron, was an ardent Benthamite, and the code, in any case, was an accomplishment of Benthamite aspirations. This code, says Fitzjames, 'seems to me to be the most remarkable, and bids fair to be the most lasting monument of its princ.i.p.al author. Literary fashions may change, but the penal code has triumphantly stood the ordeal of twenty-one years' experience; and, though composed by a man who had scarcely held a brief, has been more successful than any other statute of comparable dimensions.'[105] The code, however, slept for many years in a pigeon-hole--a fact which Fitzjames considers[106] to be a most striking proof of the reluctance of the English Government to interfere in any way with native inst.i.tutions. We rubbed on, it seems, with a sort of compromise between English and Mahommedan criminal law until 1860, when the code, after a careful revision by Sir Barnes Peac.o.c.k, was finally pa.s.sed into law. That, says Fitzjames, was a singular piece of good fortune. 'An ideal code ought to be drawn by a Bacon and settled by a c.o.ke'; it should combine the highest qualities of literary skill and technical knowledge. Thus drawn, the code became the first specimen of an 'entirely new and original method of legislative expression.' It served as a model for all the later Indian codes. Its method is first to state the 'leading idea' in the most pointed and explicit form; then to give a definite explanation of any terms which admit of a possible doubt; then to give equally definite exceptions; and, finally, to ill.u.s.trate the whole by applying it to a number of concrete cases.[107]

In Macaulay's hands the legal doc.u.ment, freed from the endless verbiage, circ.u.mlocution and technicality of English statutes, became a model of logical precision, and was even entertaining as a piece of literature.

The pa.s.sage of this code was part of a systematic process of codification. An Indian Law Commission, sitting in England, had been appointed in 1853 to carry on the work of consolidating the law. The suppression of the mutiny and the dissolution of the Company were naturally followed by various administrative and legislative reforms. A code of civil procedure was pa.s.sed in 1859, and a code of criminal procedure, as a necessary supplement to the penal code, in 1861. In 1862 Maine went out as legislative member of the Indian Council, and carried on the work of codification in combination with a new Law Commission, appointed in 1861. The Commission ultimately fell out with the Indian Government, and finally resigned in 1870. They seem to have been of opinion that there was undue delay in pa.s.sing the bills which they prepared. Meanwhile, Fitzjames took up various measures which had been left incomplete, and carried them to completion. Before specifying them so far as will be desirable, I must say something of the machinery by which they were converted into law.