The Life of Sir James Fitzjames Stephen, Bart., K.C.S.I Part 8

This, like Fitzjames's other bits of self-portraiture, is not to be accepted too literally. So taken, it confounds, I think, coldness and harshness with a very different quality, a want of quick and versatile sympathy, and 'thickness of skin' with the pride which would not admit, even to itself, any tendency to over-sensibility. But it represents more or less the tone which came naturally to him, and explains the want of corresponding acceptability to his readers. He denounces the quality for which 'geniality' had become the accepted nickname. The geniality, whether of d.i.c.kens or Kingsley, was often, he thought, disgusting and offensive. It gives a false view of life. 'Enjoyment forms a small and unimportant element in the life of most men.' Life, he thinks, is 'satisfactory' but 'enjoyment casual and transitory.' 'Geniality,'

therefore, should be only an occasional element; habitually indulged and artificially introduced, it becomes as nauseous as sweetmeats mixed with bread and cheese. To the more serious person, much of the popular literature of the day suggests Solomon's words: 'I said of laughter, it is mad; and of mirth what doeth it?' So the talk of progress seems to him to express the ideal of a moral 'lubberland.' Six thousand years of trial and suffering, according to these prophets, are to result in a 'perpetual succession of comfortable shopkeepers.' The supposition is 'so revolting to the moral sense that it would be difficult to reconcile it with any belief at all in a Divine Providence.' You are beginning, he declares after Carlyle's account of Robespierre, 'to be a bore with your nineteenth century.' Our life, he says elsewhere ('Christian Optimism'), is like 'standing on a narrow strip of sh.o.r.e, waiting till the tide which has washed away hundreds of millions of our fellows shall wash us away also into a country of which there are no charts and from which there is no return. What little we have reason to believe about that unseen world is that it exists, that it contains extremes of good and evil, awful and mysterious beyond human conception, and that these tremendous possibilities are connected with our conduct here. It is surely wiser and more manly to walk silently by the sh.o.r.e of that silent sea, than to boast with puerile exultation over the little sand castles which we have employed our short leisure in building up. Life can never be matter of exultation, nor can the progress of arts and sciences ever fill the heart of a man who has a heart to be filled.' The value of all human labours is that of schoolboys' lessons, 'worth nothing at all except as a task and a discipline.' Life and death are greater and older than steam engines and cotton mills. 'Why mankind was created at all, why we continue to exist, what has become of all that vast mult.i.tude which has pa.s.sed, with more or less sin and misery, through this mysterious earth, and what will become of those vaster mult.i.tudes which are treading and will tread the same wonderful path?--these are the great insoluble problems which ought to be seldom mentioned but never forgotten. Strange as it may appear to popular lecturers, they do make it seem rather unimportant whether, on an average, there is a little more or less good nature, a little more or less comfort, and a little more or less knowledge in the world.' Such thoughts were indeed often with him, though seldom uttered. The death of a commonplace barrister about this time makes him remark in a letter that the sudden contact with the end of one's journey is not unwelcome. The thought that the man went straight from the George IV. Hotel to 'a world of ineffable mysteries is one of the strangest that can be conceived.'

I have quoted enough from the essays to indicate the most characteristic vein of thought. They might have been more popular had he either sympathised more fully with popular sentiment or given fuller and more frequent expression to his antipathy. But, it is only at times that he cares to lay bare his strongest convictions; and the ordinary reader finds himself in company with a stern, proud man who obviously thinks him foolish but scarcely worth denouncing for his folly. St.u.r.dy common sense combined with a proud reserve which only yields at rare intervals, and then, as it were, under protest, to the expression of deeper feeling, does not give the popular tone. Some of the 'Cornhill' articles were well received, especially the first, upon 'Luxury' (September 1860), which is not, as such a t.i.tle would now suggest, concerned with socialism, but is another variation upon the theme of the pettiness of modern ideals and the effeminate idolatry of the comfortable.

These articles deal with many other topics: with the legal questions in which he is always interested, such as 'the morality of advocacy' and with the theory of evidence, with various popular commonplaces about moral and social problems, with the 'spirit-rapping' then popular, with various speculations about history, and with some of the books in which he was always interested. One is the 'laudation' of Macaulay which I have noticed, and he criticises Carlyle and speaks with warm respect of Hallam. Here and there, too, are certain philosophical speculations, of which I need only say that they show his thorough adherence to the principles of Mill's 'Logic' He is always on the look-out for the 'intuitionist' or the believer in 'innate ideas,' the bugbears of the Mill school. In an article upon Mansel's 'Metaphysics' he endeavours to show that even the 'necessary truths' of mathematics are mere statements of uniform experience, which may differ in another world. This argument was adopted by Mill in his 'examination of Sir W. Hamilton's philosophy.'[80] I cannot say that I think it a fortunate suggestion; and I only notice it as an indication of Fitzjames's intellectual position.

The 'Cornhill' articles had to be written under the moral code proper to a popular magazine, the first commandment of which is 'Thou shalt not shock a young lady.' Fitzjames felt this rather uncomfortably, and he was not altogether displeased, as he clearly had no right to be surprised, when Mr. George Smith, the proprietor of the magazine, suggested to him in December 1862 the superior merits of 'light and amusing' articles, which, says Fitzjames, are 'just those which give me most trouble and teach me least.' They are 'wretched' things to occupy a man of 'any sort of mind.' Mr. Smith, as he says a year afterwards, is the 'kindest and most liberal of masters,' but he feels the drudgery of such work. Reading Bossuet (February 28, 1864), he observes that the works are so 'powerful and magnificent in their way' that they make me feel a sort of hatred for 'the trumpery that I pa.s.s my time in manufacturing.' It makes him 'sad to read great books, and it is almost equally sad not to read them.' He feels 'tied by the leg' and longs to write something worth writing; he believes that he might do more by a better economy of his time; but 'it is hopeless to try to write eight hours a day.' He feels, too (July 21, 1864), that the great bulk of a barrister's work is 'poor stuff.' It is a 'good vigorous trade' which braces 'the moral and intellectual muscles' but he wishes for more. No doubt he was tired, for he records for once enjoying a day of thorough idleness a month later, lying on the gra.s.s at a cricket match, and talking of prize-fighting. He is much impressed soon afterwards by a sermon on the text, 'I will give you rest'; but his spirits are rapidly reviving.

In March 1865 be says, 'I cannot tell you how happy and prosperous I feel on the whole.... I have never felt so well occupied and so thoroughly fearless and happy on circuit before.' This was partly due to improvement in other respects. Circuits were improving. He had given up the 'Cornhill,' and was finding an outlet in 'Fraser' for much that had been filling his mind. Other prospects were opening of which I shall soon have to speak.

VII. DEFENCE OF DR. WILLIAMS

I go back to another book which was closely connected with his professional prospects and his intellectual interests. His 'Defence of Dr. Rowland Williams' appeared in the spring of 1862, and represented some very energetic and to him intensely interesting work. Certain clergymen of the Church of England had discovered--what had been known to other people for several generations--that there were mistakes in the Bible. They inferred that it was desirable to open their minds to free criticism, and that the Bible, as Jowett said, should be read 'like any other book.' The result was the publication in 1860 of 'Essays and Reviews,' which after a time created a turmoil which seems a little astonishing to the present generation. Orthodox divines have, indeed, adopted many of the conclusions which startled their predecessors, though it remains to be seen what will be the results of the new wine in the old bottles. The orthodoxy of 1860, at any rate, was scandalised, and tried, as usual, to expel the obnoxious element from the Church. The trial of Dr. Rowland Williams in the Arches Court of Canterbury in December 1861 was one result of the agitation, and Fitzjames appeared as his counsel. He had long been familiar with the writings of the school which was being a.s.sailed. In 1855 he is reading Jowett's 'Commentary on the Epistle to the Romans,' and calls it a 'kind, gentle Christian book'--far more orthodox than he can himself pretend to be.

Characteristically he is puzzled and made 'unhappy' by finding that a good and honest man claims and 'actually seems to possess a knowledge of the relations between G.o.d and man,' on the strength of certain sensibilities which place a gulf between him and his neighbours. He probably met Jowett in some of his visits to Henry Smith at Oxford. At the end of 1861 and afterwards he speaks of meetings with Jowett and Stanley, for both of whom he expresses a very warm regard.

During the latter part of 1861 he was hard at work upon the preparation of his speech on behalf of Dr. Williams, which was published soon after the trial. Without dwelling at any length upon the particular points involved, I may say that the main issue was very simple. The princ.i.p.al charge against Dr. Williams was that he had denied the inspiration of the Bible in the sense in which 'inspiration' was understood by his prosecutors. He had in particular denied that Jonah and Daniel were the authors of the books which pa.s.s under their names, and he had disputed the canonicity of the Epistle to the Hebrews. Fitzjames lays down as his first principle that the question is purely legal; that is, that it is a question, not whether Dr. Williams's doctrines were true, but whether they were such as were forbidden by law to be uttered by a clergyman.

Secondly, the law was to be found in the Thirty-nine Articles, the rubrics, and formularies, not, as the prosecutors alleged, in pa.s.sages from Scripture read in the services--a proposition which would introduce the whole problem of truth or error. Thirdly, he urged, the Articles had designedly left it open to clergymen to hold that the Bible 'contains' but does not 'const.i.tute' the revelation which must no doubt be regarded as divine. In this respect the Articles are contrasted with the Westminster Confession, which affirms explicitly the absolute and ultimate authority of the Bible. No one on that a.s.sumption may go behind the sacred record; and no question can be raised as to the validity of anything once admitted to form part of the sacred volume. The Anglican clergy, on the contrary, are at liberty to apply criticism freely in order to discriminate between that part of the Bible which is and that which is not part of divine revelation. Finally, a long series of authorities from Hooker to Bishop Hampden is adduced to prove that, in point of fact, our most learned divines had constantly taken advantage of this liberty; and established, so to speak, a right of way to all the results of criticism. Of course, as Fitzjames points out, the enormous increase of knowledge, critical and scientific, had led to very different results in the later period. But he argues that the principle was identical, and that it was therefore impossible to draw any line which should condemn Dr. Williams for rejecting whole books, or denying the existence of almost any genuine predictions in the Hebrew prophecies without condemning the more trifling concessions of the same kind made by Hooker or Chillingworth. If I may remove one stone from the building, am I not at liberty to remove any stone which proves to be superfluous?

The argument, though forcible and learned, was not in the first instance quite successful. Dr. Williams was convicted upon two counts; though he afterwards (1864) succeeded in obtaining an acquittal upon them also on an appeal to the committee of the Privy Council. Lord Westbury gave judgment, and, as was said, deprived the clergy of the Church of England of their 'last hopes of eternal d.a.m.nation.' On the last occasion Dr. Williams defended himself.

The case increased Fitzjames's general reputation and led to his being consulted in some similar cases, though it brought little immediate result in the shape of briefs. For my purpose the most important result is the indication afforded of his own religious position. He argues the question as a matter of law; but not in the sense of reducing it to a set of legal quibbles or technical subtleties. The prosecutors have appealed to the law, and to the law they must go; but the law secures to his client the liberty of uttering his conscientious convictions. Dr.

Williams, he says, 'would rather lose his living as an honest man than retain it by sneaking out of his opinions like a knave and a liar.'[81]

He will therefore take a bold course and lay down broad principles. He will not find subterfuges and loopholes of escape; but admit at once that his client has said things startling to the ignorant, but that he has said them because he had a right to say them. The main right is briefly the right to criticise the Bible freely. Fitzjames admits that he has to run the risk of apparently disparaging that 'most holy volume, which from his earliest infancy he has been taught to revere as the choicest gift of G.o.d to man, as the guide of his conduct here, the foundation of his hopes hereafter.'[82] He declares that the articles were framed with the confidence which has been 'justified by the experience of three centuries,' and will, he hopes, be justified 'so long as it pleases G.o.d to continue the existence of the human race,'

that the Scripture stands upon a foundation irremovable by any efforts of criticism or interpretation.[83] The principle which he defends, (that the Bible contains, but does not const.i.tute revelation) is that upon which the divines of the eighteenth century based their 'triumphant defence of Christianity against the deists' of the period. I am certain that Fitzjames, though speaking as an advocate, was also uttering his own convictions in these words which at a later period he would have been quite unable to adopt. I happened at the time to have a personal interest in the subject, and I remember putting to him a question to this effect: Your legal argument may be triumphant; but how about the moral argument? A clergyman may have a right to express certain opinions; but can you hold that a clergyman who holds those opinions, and holds also what they necessarily imply, can continue, as an honest man, to discharge his functions? As often happens, I remember my share in our talk much more clearly than I remember his; but he was, I know, startled, and, as I fancied, had scarcely contemplated the very obvious application of his principles. I have now seen, however, a very full and confidential answer given about the same time to a friend who had consulted him upon the same topic. As I have always found, his most confidential utterances are identical in substance with all that he said publicly, although they go into more personal applications.[84] The main purpose of this paper is to convince a lady that she may rightfully believe in the doctrines of the Church of England, although she does not feel herself able to go into the various metaphysical and critical problems involved. The argument shows the way in which his religious beliefs were combined with his Benthamism. He proves, for example, that we should believe the truth by the argument that true belief is 'useful.' Conversely the utility of a belief is a presumption that it contains much truth. Hence the prolonged existence of a Church and its admitted utility afford a presumption that its doctrines are true as the success of a political const.i.tution is a reason for believing the theory upon which it is built. This is enough to justify the unlearned for accepting the creed of the Church to which they belong, just as they have to accept the opinions of a lawyer or of a physician in matters of health and business. They must not, indeed, accept what shocks their consciences, nor allow 'an intelligible absurdity' to be pa.s.sed off as a 'sacred mystery.' The popular doctrines of h.e.l.l and of the atonement come under this head; but he still refers to Coleridge for an account of such doctrines, which appears to him 'quite satisfactory.' The Church of England, however, lays so little stress upon points of dogmatic theology that its yoke will be tolerable. Combined with this argument is a very strong profession of his own belief. The belief in a moral governor of the universe seems to him as enn.o.bling as all other beliefs 'put together,' and 'more precious.' Although the difficulty suggested by the prevalence of evil is 'inimical to all levity,' yet he thinks that it would be 'unreasonable and degrading' not to hold the doctrine itself.

And, finally, he declares that he accepts two doctrines of 'unspeakable importance.' He prays frequently, and at times fervently, though not for specific objects, and believes that his prayers are answered. And further, he is convinced of a 'superintending Providence' which has throughout affected his life. No argument that he has ever read or heard has weighed with him a quarter as much as his own personal experience in this matter.

The paper, written with the most evident sincerity, speaks so strongly of beliefs which he rarely avowed in public that I feel it almost wrong to draw aside his habitual veil of reticence. I do so, though briefly, because some of his friends who remember his early orthodoxy were surprised by the contrast of what they call his aggressive unbelief in later life. It is therefore necessary to show that at this period he had some strong positive convictions, which indeed, though changed in later years, continued to influence his mind. He was also persuaded that the Church of England, guarded by the decisions of lawyers, could be kept sufficiently open to admit the gradual infusion of rational belief. I must further remark that his belief, whatever may be thought of it, represented so powerful a sentiment that I must dwell for a little upon its general characteristics. For this reason I will speak here of the series of articles in 'Fraser' to which I have already referred. During the next few years, 1864 to 1869, he wrote several, especially in 1864-5, which he apparently intended to collect. The most significant of these is an article upon Newman's 'Apologia,' which appeared in September 1864.

Fitzjames had some personal acquaintance with Newman. He had been taken to the Oratory, I believe by his friend Grant Duff; and had of course been impressed by Newman's personal charm. Fitzjames, however, was not the man to be awed by any reputation into reticence. He had a right to ask for a serious answer to serious questions. Newman represented claims which he absolutely rejected, but which he desired fully to understand.

He had on one occasion a conversation which he frequently mentioned in later years. The substance, as I gather from one of his letters, was to this effect: 'You say,' said Fitzjames, 'that it is my duty to treat you and your Church as the agents and mouthpiece of Almighty G.o.d?' 'Yes.'

'Then give me anything like a reasonable ground for believing that you are what you claim to be.' Newman appears to have replied in substance that he could not argue with a man who differed so completely upon first principles. Fitzjames took this as practically amounting to the admission that Newman had 'nothing to say to anyone who did not go three-fourths of the way to meet him.' 'I said at last,' he proceeds, '"If Jesus Christ were here, could He say no more than you do?" "I suppose you to mean that if He could, I ought to be able to give you what you ask?" "Certainly, for you profess to be His authorised agent, and call upon me to believe you on that ground. Prove it!" All he could say was, "I cannot work miracles," to which I replied, "I did not ask for miracles but for proofs." He had absolutely nothing to say.'

I need hardly say that Newman's report of the conversation would probably have differed from this, which gives a rough summary from Fitzjames's later recollections. I do not hesitate, however, to express my own belief that it gives a substantially accurate account; and that the reason why Newman had nothing to say is simply that there was nothing to be said. Persons who suppose that a man of Newman's genius in stating an argument must have been a great logician, and who further imagine that a great logician shows his power by a capacity of deducing any conclusions from any premises, will of course deny that statement.

To argue the general question involved would be irrelevant. What I am concerned to point out is simply the inapplicability of Newman's argument to one in Fitzjames's state of mind. The result will, I think, show very clearly what was his real position both now and in later years.

His essay on the 'Apologia' insists in the first place upon a characteristic of Newman's writings, which has been frequently pointed out by others; that is, that they are essentially sceptical. The author reaches orthodox conclusions by arguments which are really fatal to them. The legitimate inference from an argument does not depend upon the intention of the arguer; and the true tendency of Newman's reasonings appears simply by translating them into impartial language. Fitzjames dwells especially upon Newman's treatment of the fundamental doctrine of the existence of a G.o.d. Newman, for example, defends a belief in transubstantiation by dwelling upon the antinomies involved in the argument for a Deity. As, in one case, we cannot give any meaning to an existence without a beginning, so, in the other, we can attach no meaning to the word 'substance.' If the a.n.a.logy be correct, the true inference would be that both doctrines are meaningless aggregations of words, and therefore not capable of being in any true sense either 'believed' or 'disbelieved.' So again the view of the external world suggests to Newman 'atheism, pantheism, or polytheism.' Almighty benevolence has created a world of intelligent beings, most of whom are doomed to eternal tortures, and having become incarnate in order to save us, has altogether failed in His purpose. The inference is, says Fitzjames, that 'if Dr. Newman was thoroughly honest he would become an atheist.' The existence of evil is, in fact, an argument against the goodness of G.o.d; though it may be, as Fitzjames thinks it is in fact, overbalanced by other evidence. But if it be true that G.o.d has created an immense proportion of men to be eternally tormented in h.e.l.l fire, it is nonsense to call Him benevolent, and the explanation by a supposed 'catastrophe' is a mere evasion.

In spite of this, Newman professes himself, and of course in all sincerity, as much convinced of the existence of G.o.d as he is of his own existence. The 'objections,' as he puts it, are only 'difficulties'; they make it hard to understand the theory, but are no more reasons for rejecting it than would be the difficulty which a non-mathematical mind finds in understanding the differential calculus for rejecting 'Taylor's theorem.' And, so far, the difference is rather in the process than the conclusion. Newman believes in G.o.d on the testimony of an inner voice, so conclusive and imperative that he can dismiss all apparently contradictory facts, and even afford, for controversial purposes, to exaggerate them. Fitzjames, as a sound believer in Mill's logic, makes the facts the base of his whole argumentative structure, though he thinks that the evidence for a benevolent Deity is much stronger than the evidence against it. When we come to the narrower question of the truth of Christianity the difference is vital. Newman's course had, in fact, been decided by a belief, however generated, in the 'principle of dogma,' and on the other hand by the gradual discovery of the unsatisfactory nature of the old-fashioned Protestant argument as interpreted by Paley and the evidence writers. For that argument, as has been seen, Fitzjames had still a considerable respect. But no one had insisted more energetically upon its practical insufficiency, at any rate, than Newman. He had declared man's reason to be so corrupt, that one who becomes a Protestant is on a slope which will inevitably lead through Socinianism to Atheism. To prove his claims, therefore, to a Protestant by appealing to such grounds as the testimony of the gospels, was obviously impossible. That evidence, taken by itself, especially as a sound utilitarian lawyer would take it, was, on his own showing, practically insufficient to prove the truth of the alleged facts, and, much more, to base upon them the claim of the infallible Church. It is precisely the insufficiency of this view that gives force to the demand for a supernatural authority.

How, then, was Newman to answer an inquirer? Obviously, on his own ground, he must appeal to the _a priori_ arguments afforded by the instinctive desire of men for an authoritative body, and to the satisfaction of their conscience by the dogmas revealed through its agency. Then the question occurs: Is this a logical argument, or an appeal from argument to feeling? Is it not, as Fitzjames thinks, a roundabout way of saying, 'I believe in this system because it suits my tastes and feelings, and because I consider truth unattainable'? If so, persuasion is subst.i.tuted for reasoning: and the force of persuasion depends upon the const.i.tution of the person to be persuaded. Now the arguments, if they be called arguments, which Newman could address to Fitzjames upon this topic were obviously inapplicable. The dogmas, says Newman, are congenial to the conscience. The conscience demands an avenging Deity, and therefore a doctrine of sacrifice. But such an appeal fails if, in point of fact, a man's conscience rises against the dogma. This was Fitzjames's position. 'Large parts of the (Catholic) theology,' he says in a letter, 'are not only silly, but, I think, cruel and immoral to the last degree. I think the doctrine of eternal d.a.m.nation so wicked and so cruel that I would as soon teach my children to lie and steal as to believe in it.' This was to express one of his strongest convictions. In a review of Theodore Parker's works,[85]

written shortly before, he had to deal with an advocate of that 'intuitional' theory which he always repudiated. But Parker at least appealed to reason, and had, by a different path, reached moral conclusions with Fitzjames thoroughly agreed. Doctrines, says Fitzjames, which _prima facie_ conflict with our belief in a benevolent Creator, such as the theory of vicarious suffering, are not indeed capable of being refuted by Parker's summary method; but he fully agrees that they could only be established by very strong evidence, which he obviously does not believe to exist. To appeal, then, to the conscience on behalf of the very doctrine which has been destroyed by the revolt of our moral feelings is obviously impossible. Newman, when he notices that the modern world rejects the sacrifice theory, explains it by saying that the conscience of the modern world has decayed. But it is a mere playing fast and loose with logic when you deny the authority of the court to which you appeal as soon as it decides against you. To Fitzjames, at any rate, who regarded these doctrines as radically immoral, the argument could have no application.

Finally, the desire for some infallible guide in the midst of our doubts and difficulties is equally wide of the mark. It is so because, though the desire for truth is perfectly natural or highly commendable, there is not the slightest ground for supposing that it implies any royal road to truth. In all other matters, political, social, and physical, we have to blunder slowly into truth by harsh experience. Why not in religious matters? Upon this Fitzjames frequently insists. Deny any _a priori_ probability of such guidance, he says, and the Catholic argument vanishes. Moreover, as he argues at length in his review of the 'Apologia,' it is absolutely inconsistent with facts. What is the use of saying that man's nature demands an infallible guide, when, as a matter of admitted fact, such a guide has only been granted to one small fraction of mankind? For thousands of years, and over the great majority of the present world, you admit yourselves that no such guide exists.

What, then, is the value of an _a priori_ argument that it must exist?

When Newman has to do with the existence of the Greek Church, he admits it to be inconsistent with his theory, but discovers it to be a 'difficulty' instead of an 'objection.' That is to say that an argument which you cannot answer is to be dismissed on pretence of being only a 'difficulty,' as nonsense is to be admitted under the name of a 'mystery.' If you argued in that way in a court of justice, and, because you had decided a case one way, refused to admit evidence for the other view, what would be the value of your decision?

I cannot here argue the justice of this view of Newman's theories, though personally I think it just. But it is, in any case, eminently characteristic. Fitzjames, like Newman, had been much influenced by Butler. Both of them, after a fashion, accept Butler's famous saying that 'probability is the guide of life.' Newman, believing in the necessity of dogma, holds that we are justified in trans.m.u.ting the belief corresponding to probability into such 'cert.i.tude' as corresponds to demonstration. He does so by the help of appeals to our conscience, which, for the reasons just given, fail to have any force for his opponent. Fitzjames adhered steadily to Butler's doctrine. There is, he says, a probability of the truth of the great religious doctrines--of the existence of a G.o.d and a soul; and, therefore, of the correctness of the belief that this world is a school or a preparation for something higher and better. No one could speak more emphatically than he often did of the vast importance of these doctrines. To hold them, he says, makes all the difference between a man and a beast. But his almost pa.s.sionate a.s.sertion of this opinion would never lead him to over-estimate the evidence in its favour. We do not know the truth of these doctrines; we only know that they are probably true, and that probability is and must be enough for us; we must not torture our guesses into a sham appearance of infallible reasoning, nor call them self-evident because we cannot prove them, nor try to transfer the case from the court of reason to the court of sentiment or emotion.

I might say, if I wished to be paradoxical, that this doctrine seems strange precisely because it is so common. It is what most people who think at all believe, but what n.o.body likes to avow. We have become so accustomed to the a.s.sertion that it is a duty for the ignorant to hold with unequivocal faith doctrines which are notoriously the very centres of philosophical doubt, that it is hard to believe that a man can regard them as at once important and incapable of strict proof. Fitzjames naturally appears to the orthodox as an unbeliever, because he admits the doubt. He replies to one such charge that the 'broad general doctrines, which are the only consolation in death and the only solid sanction of morality, never have been, and, please G.o.d, never shall be, treated in these columns in any other spirit than that of profound reverence and faith.'[86] Yet he would not say, for he did not think, that those doctrines could be demonstrated. It was the odd thing about your brother, said his old friend T. C. Sandars to me, that he would bring one face to face with a hopeless antinomy, and instead of trying, like most of us, to patch it up somehow, would conclude, 'Now let us go to breakfast.' Some of us discover a supernatural authority in these cases; others think that the doubt which besets these doctrines results from a vain effort to transcend the conditions of our intelligence, and that we should give up the attempt to solve them. Most men to whom they occur resolve that if they cannot answer their doubts they can keep them out of sight, even of themselves. Fitzjames was peculiar in frankly admitting the desirability of knowledge, which he yet admitted, with equal frankness, to be unattainable. And, for various reasons, partly from natural pugnacity, he was more frequently engaged in exposing sham subst.i.tutes for logic than in expounding his own grounds for believing in the probability. His own view was given most strikingly in a little allegory which I shall slightly condense, and which will, I think, sufficiently explain his real position in these matters. It concludes a review of a pamphlet by William Thomson, then Archbishop of York, upon the 'Limits of Philosophical Enquiry.'[87]

I dreamt, he says, after Bunyan's fashion, that I was in the cabin of a ship, handsomely furnished and lighted. A number of people were expounding the objects of the voyage and the principles of navigation.

They were contradicting each other eagerly, but each maintained that the success of the voyage depended absolutely upon the adoption of his own plan. The charts to which they appealed were in many places confused and contradictory. They said that they were proclaiming the best of news, but the substance of it was that when we reached port most of us would be thrown into a dungeon and put to death by lingering torments. Some, indeed, would receive different treatment; but they could not say why, though all agreed in extolling the wisdom and mercy of the Sovereign of the country. Saddened and confused I escaped to the deck, and found myself somehow enrolled in the crew. The prospect was unlike the accounts given in the cabin. There was no sun; we had but a faint starlight, and there were occasionally glimpses of land and of what might be lights on sh.o.r.e, which yet were p.r.o.nounced by some of the crew to be mere illusions. They held that the best thing to be done was to let the ship drive as she would, without trying to keep her on what was understood to be her course. For 'the strangest thing on that strange ship was the fact that there was such a course.' Many theories were offered about this, none quite satisfactory; but it was understood that the ship was to be steered due north. The best and bravest and wisest of the crew would dare the most terrible dangers, even from their comrades, to keep her on her course. Putting these things together, and noting that the ship was obviously framed and equipped for the voyage, I could not help feeling that there was a port somewhere, though I doubted the wisdom of those who professed to know all about it. I resolved to do my duty, in the hope that it would turn out to have been my duty, and I then felt that there was something bracing in the mystery by which we were surrounded, and that, at all events, ignorance honestly admitted and courageously faced, and rough duty vigorously done, was far better than the sham knowledge and the bitter quarrels of the sickly cabin and glaring lamplight from which I had escaped.

I need add no exposition of a parable which gives his essential doctrine more forcibly than I could do it. I will only add that he remained upon good terms with Newman, who had, as he heard, spoken of his article as honest, plain-spoken, and fair to him. He hopes, as he says upon this, to see the old man and talk matters over with him--a phrase which probably antic.i.p.ates the interview of which I have spoken. Newman afterwards (September 9, 1866) writes to him in a friendly way, and gives him a statement of certain points of Catholic moral theology.

They seem to have met again, but without further argument.

Fitzjames wrote various articles in 'Fraser' attacking Manning, and criticising among other writings Mr. Lecky's 'Rationalism' (very favourably), and Professor Seeley's then anonymous 'Ecce h.o.m.o.' He thinks that the author is a 'sheep in wolf's clothing,' and that his views dissolve into mist when closely examined. I need not give any account of these articles, but I may notice a personal connection which was involved. At this time Mr. Froude was editor of 'Fraser,' a circ.u.mstance which doubtless recommended the organ. At what time he became acquainted with Fitzjames I am unable to say; but the acquaintanceship ripened into one of his closest friendships. They had certain intellectual sympathies; and it would be hard to say which of them had the most unequivocal hatred of popery. Here again, however, the friendship was compatible with, or stimulated by, great contrasts of temperament. No one could be blind to Froude's great personal charm whenever he chose to exert it; but many people had the feeling that it was not easy to be on such terms as to know the real man. There were certain outworks of reserve and shyness to be surmounted, and they indicated keen sensibilities which might be unintentionally shocked. But to such a character there is often a great charm in the plain, downright ways of a masculine friend, who speaks what he thinks without reserve and without any covert intention. Froude and Fitzjames, in any case, became warmly attached; Froude thoroughly appreciated Fitzjames's fine qualities, and Fitzjames could not but delight in Froude's cordial sympathy.[88] Fitzjames often stayed with him in later years, both in Ireland and Devonshire: he took a share in the fishing, shooting, and yachting in which Froude delighted; and if he could not rival his friend's skill as a sportsman admired it heartily, delighted in pouring out his thoughts about all matters, and, as Froude told me, recommended himself to such companions as gamekeepers and fishermen by his hearty and unaffected interest in their pursuits.

Along with this friendship I must mention the friendship with Carlyle.

Carlyle had some intercourse with my father in the 'fifties.' My father, indeed, had thought it proper to explain, in a rather elaborate letter after an early conversation, that he did not sympathise with one of Carlyle's diatribes against the Church of England, though he had not liked to protest at the moment. Carlyle responded very courteously and asked for further meetings. His view of my father was coloured by some of his usual severity, but was not intentionally disparaging.

Fitzjames, on his first call, had been received by Mrs. Carlyle, who ordered him off the premises on suspicion of being an American celebrity hunter. He submitted so peacefully that she relented; called him back, and, discovering his name, apologised for her wrath. I cannot fix the dates, but during these years Fitzjames gradually came to be very intimate with her husband. Froude and he were often companions of the old gentleman on some of his walks, though Fitzjames's opportunities were limited by his many engagements. I may here say that it would, I think, be easy to exaggerate the effects of this influence. In later years Fitzjames, indeed, came to sympathise with many of Carlyle's denunciations of the British Const.i.tution and Parliamentary Government.

I think it probable that he was encouraged in this view by the fiery jeremiads of the older man. He felt that he had an eminent a.s.sociate in condemning much that was a general object of admiration. But he had reached his own conclusions by an independent path. From Carlyle he was separated by his adherence to Mill's philosophical and ethical principles. He was never, in Carlyle's phrase, a 'mystic'; and his common sense and knowledge of practical affairs made many of Carlyle's doctrines appear fantastic and extravagant. The socialistic element of Carlyle's works, of which Mr. Ruskin has become the expositor, was altogether against his principles. In walking with Carlyle he said that it was desirable to steer the old gentleman in the direction of his amazingly graphic personal reminiscences instead of giving him texts for the political and moral diatribes which were apt to be reproductions of his books. In various early writings he expressed his dissent very decidedly along with a very cordial admiration both of the graphic vigour of Carlyle's writings and of some of his general views of life.

In an article in 'Fraser' for December 1865, he prefaces a review of 'Frederick' by a long discussion of Carlyle's principles. He professes himself to be one of the humble 'pig-philosophers' so vigorously denounced by the prophet. Carlyle is described as a 'transcendentalist'--a kind of qualified equivalent to intuitionist. And while he admires the shrewdness, picturesqueness, and bracing morality of Carlyle's teaching, Fitzjames dissents from his philosophy. Nay, the 'pig-philosophers' are the really useful workers; they have achieved the main reforms of the century; even their favourite parliamentary methods and their democratic doctrines deserve more respect than Carlyle has shown them; and Carlyle, if well advised, would recognise the true meaning of some of the 'pig' doctrines to be in harmony with his own.

Their _laissez-faire_ theory, for example, is really a version of his own favourite tenet, 'if a man will not work, neither let him eat.'

Although Fitzjames's views changed, he could never become a thorough Carlylean; and after undertaking to write about Carlyle in Mr. Morley's series he abandoned the attempt chiefly because, as he told me, he found that he should have to adopt too frequently the att.i.tude of a hostile critic. Meanwhile Carlyle admired my brother's general force of character, and ultimately made him his executor, in order, as he put it, that there might be a 'great Molossian dog' to watch over his treasure.

VIII. VIEW OF THE CRIMINAL LAW

I come now to the third book of which I have spoken. This was the 'General View of the Criminal Law of England,' published in 1863.

Fitzjames first begins to speak of his intention of writing this book in 1858. He then took it up in preference to the history of the English administrative system, recommended by his father. That book, indeed, would have required antiquarian researches for which he had neither time nor taste. He thought his beginning too long and too dull to be finished at present. He was anxious, moreover, at the time of the Education Commission to emphasise the fact that he had no thoughts of abandoning his profession. A law-book would answer this purpose; and the conclusion of the commission in 1861, and the contemporary breach with the 'Sat.u.r.day Review,' gave him leisure enough to take up this task. The germ of the book was already contained in his article in the 'Cambridge Essays,' part of which he reproduces. He aspired to make a book which should be at once useful to lawyers and readable by every educated man.

The 'View' itself has been in a later edition eclipsed by the later 'History of the English Criminal Law.' In point of style it is perhaps better than its successor, because more concentrated to a single focus.

Although I do not profess to be a competent critic of the law, a few words will explain the sense in which I take it to be characteristic of himself.

The book, in the first place, is not, like most law-books, intended for purely practical purposes. It attempts to give an account of the 'general scope, tendency, and design of an important part of our inst.i.tutions of which surely none can have a greater moral significance, or be more closely connected with broad principles of morality and politics, than those by which men rightfully, deliberately, and in cold blood, kill, enslave, or otherwise torment their fellow-creatures.'[89]

The phrase explains the deep moral interest belonging in his mind to a branch of legal practice which for sufficiently obvious reasons is generally regarded as not deserving the attention of the higher cla.s.s of barristers. Fitzjames was always attracted by the dramatic interest of important criminal cases, and by the close connection in various ways between criminal law and morality. He had now gained sufficient experience to speak with some authority upon a topic which was to occupy him for many years. In his first principles he was an unhesitating disciple of Bentham[90] and Austin. Bentham had given the first great impulse to the reforms in the English Criminal Law, which began about 1827; and Austin had put Bentham's general doctrine into a rigid form which to Fitzjames appeared perfectly satisfactory. Austin's authority has declined as the historical method has developed; Fitzjames gives his impression of their true relations in an article on 'Jurisprudence' in the 'Edinburgh Review' of October 1861. He there reviews the posthumously published lectures of Austin, along with Maine's great book upon 'Ancient Law,' which in England heralded the new methods of thought. His position is characteristic. He speaks enthusiastically of Austin's services in accurately defining the primary conceptions with which jurisprudence is conversant. The effect is, he says, nothing less than this; that jurisprudence has become capable of truly scientific treatment. He confirms his case by the parallel of the Political Economy founded by Adam Smith and made scientific by Ricardo. I do not think that Fitzjames was ever much interested in economical writings; and here he is taking for granted the claims which were generally admitted under the philosophical dynasty of J. S. Mill. Political Economy was supposed to be a definitely const.i.tuted science; and the theory of jurisprudence, which sprang from the same school and was indeed its other main achievement, was ent.i.tled to the same rank. Fitzjames argues, or rather takes for granted, that the claims of the economists to be strictly scientific are not invalidated by the failure of their a.s.sumptions to correspond exactly to concrete facts; and makes the same claim on behalf of Austin. His view of Maine's work is determined by this. He of course cordially admires his friend; but protests against the a.s.sumption by which Maine is infected, that a history of the succession of opinions can be equivalent to an examination of their value. Maine shows, for example, how the theory of the 'rights of man' first came up in the world; but does not thereby either prove or disprove it. It may have been a fallacy suggested by accident or a truth first discovered in a particular case. Maine, therefore, and the historical school generally require some basis for their inquiries, and that basis is supplied by the teaching of Bentham and Austin. I will only observe in connection with this that Fitzjames is tempted by his love of such inquiries to devote a rather excessive s.p.a.ce in his law-book to inquiries about the logical grounds of conviction which have the disadvantage of not being strictly relevant, and the further disadvantage, I think, of following J. S. Mill in some of the more questionable parts of his logic.

The writings of Bentham consisted largely in denunciations of the various failings of the English law; and here Fitzjames takes a different position. One main point of the book was the working out of a comparison already made in the 'Cambridge Essays' between the English and the French systems. This is summed up in the statement that the English accepts the 'litigious' and the French the 'inquisitorial'

system. In other words, the theory of French law is that the whole process of detecting crime is part of the functions of government. In France there is a hierarchy of officials who, upon hearing of a crime, investigate the circ.u.mstances in every possible way, and examine everyone who is able, or supposed to be able, to throw any light upon it. The trial is merely the final stage of the investigation, at which the various authorities bring out the final result of all their previous proceedings. The theory of English law, on the contrary, is 'litigious': the trial is a proceeding in which the prosecutor endeavours to prove that the prisoner has rendered himself liable to a certain punishment; and does so by producing evidence before a judge, who is taken to be, and actually is, an impartial umpire. He has no previous knowledge of the fact; he has had nothing to do with any investigations, and his whole duty is to see that the game is played fairly between the ligitants according to certain established rules. Neither system, indeed, carries out the theory exclusively. 'An English criminal trial is a public inquiry, having for its object the discover of truth, but thrown for the purposes of obtaining that end into the form of a litigation between the prosecutor and the prisoner.'[91] On the other hand, in the French system, the jury is really an 'excrescence'

introduced by an afterthought. Now, says Fitzjames, the 'inquisitorial theory' is 'beyond all question the true one.' A trial ought obviously to be a public inquiry into a matter of public interest. He holds, however, that the introduction of the continental machinery for the detection of crime is altogether out of the question. It practically regards the liberty and comfort of any number of innocent persons as unimportant in comparison with the detection of a crime; and involves an amount of interference and prying into all manner of collateral questions which would be altogether unendurable in England. He is therefore content to point out some of the disadvantages which result from our want of system, and to suggest remedies which do not involve any radical change of principle.

This brings out his divergence from Bentham, not in principle but in the application of his principles. One most characteristic part of the English system is the law of evidence, which afterwards occupied much of Fitzjames's thoughts. Upon the English system there are a great number of facts which, in a logical sense, have a bearing upon the case, but which are forbidden to be adduced in a trial. So, to make one obvious example, husbands and wives are not allowed to give evidence against each other. Why not? asks Bentham. Because, it is suggested, the evidence could not be impartial. That, he replies, is an excellent reason for not implicitly believing it; but it is no reason for not receiving it. The testimony, even if it be partial, or even if false, may yet be of the highest importance when duly sifted with a view to the discovery of the truth. Why should we neglect any source from which light may be obtained? Such arguments fill a large part of Bentham's elaborate treatise upon the 'Rationale of Evidence,' and support his denunciations of the 'artificial' system of English law. English lawyers, he held, thought only of 'fee-gathering'; and their technical methods virtually reduced a trial from an impartial process of discovering truth into a mere struggle between lawyers fighting under a set of technical and arbitrary rules. He observes, for example, that the 'natural' mode of deciding a case has been preserved in a few cases by necessity, and especially in the case of Courts-Martial.[92] Bentham was not a practical lawyer; and Fitzjames had on more than one occasion been impressed in precisely the opposite way by the same case.[93] He had pointed out that the want of attention to the rules of evidence betrayed courts-martial into all manner of irrelevant and vexatious questions, which protracted their proceedings beyond all tolerable limits. But, on a larger scale, the same point was ill.u.s.trated by a comparison between French and English trials. To establish this, he gives careful accounts of four English and three French trials for murder. The general result is that, although some evidence was excluded in the English trials which might have been useful, the advantage was, on the whole, greatly on their side. The French lawyers were gradually drawn on into an enormous quant.i.ty of investigations having very little relation to the case, and finally producing a ma.s.s of complicated statements and counter-statements beyond the capacity of a jury to bring to a definite issue. The English trials, on the other hand, did, in fact, bring matters to a focus, and allowed all really relevant matters to be fairly laid before the court. A criminal trial has to be more or less of a rough and ready bit of practical business. The test by which it is decided is not anything which can be laid down on abstract logical principles, but reduces itself to the simple fact that you can get twelve men to express a conviction equal to that which would decide them in important business of their own. And thus, though the English law is unsystematic, ill-arranged, and superficially wanting in scientific accuracy, it does, in fact, represent a body of principles, worked out by the rough common sense of successive generations, and requires only to be tabulated and arranged to become a system of the highest excellence.

The greatest merit, perhaps, of the English system is the att.i.tude naturally a.s.sumed by the judge. No one, says Fitzjames, 'can fail to be touched' when he sees an eminent lawyer 'bending the whole force of his mind to understand the confused, bewildered, wearisome, and half-articulate mixture of question and statement which some wretched clown pours out in the agony of his terror and confusion.' The lat.i.tude allowed in such cases is highly honourable. 'Hardly anything short of wilful misbehaviour, such as gross insults to the court or abuse of a witness, will draw upon (the prisoner) the mildest reproof.'[94] The tacit understanding by which the counsel for the Crown is forbidden to press his case unfairly is another proof of the excellence of our system, which contrasts favourably in this respect with the badgering and the prolonged moral torture to which a French prisoner is subject.

Reforms, however, are needed which will not weaken these excellences.

The absence of any plan for interrogating the prisoner avoids the abuses of the French system, but is often a cruel hardship upon the innocent.

'There is a scene,' he says, 'which most lawyers know by heart, but which I can never hear without pain.' It is the scene when the prisoner, confused by the unfamiliar surroundings, and by the legal rules which he does not understand, tries to question the adverse witness, and muddles up the examination with what ought to be his speech for the defence, and, not knowing how to examine, is at last reduced to utter perplexity, and thinks it respectful to be silent. He mentions a case by which he had been much impressed, in which certain men accused of poaching had failed, from want of education and familiarity with legal rules, to bring out their real defence. An unlucky man, for example, had asked questions about the colour of a dog, which seemed to have no bearing upon the case, but which, as it afterwards turned out, incidentally pointed to a fact which identified the really guilty parties. He thinks that the interrogation of the prisoner might be introduced under such restrictions as would prevent any unfair bullying, and yet tend both to help an innocent man and to put difficulties in the way of sham or false defences of the guilty. This question, I believe, is still unsettled. I will not dwell upon other suggestions. I will only observe that he is in favour of some codification of the criminal law; though he thinks that enough would be done by re-enacting, in a simpler and less technical form, the six 'Consolidation Acts' of 1861. He proposes, also, the formation of a Ministry of Justice which would in various ways direct the administration of the law, and superintend criminal legislation.

Briefly, however, I am content to say that, while he starts from Bentham, and admits Bentham's fundamental principles, he has become convinced by experience that Bentham's onslaught upon 'judge-made law,'

and legal fictions, and the 'fee-gathering' system, was in great part due to misunderstanding. The law requires to be systematised and made clear rather than to be substantially altered. It is, on the whole, a 'generous, humane, and high-minded system, eminently favourable to individuals, and free from the taint of that fierce cowardice which demands that, for the protection of society, somebody shall be punished when a crime has been committed.' Though English lawyers are too apt to set off 'an unreasonable hardship against an unreasonable indulgence,'

'to trump one quibble by another, and to suppose that they cannot be wrong in practice because they are ostentatiously indifferent to theory,' the temper of the law is, in the main, 'n.o.ble and generous.'

'No spectacle,' he says, 'can be better fitted to satisfy the bulk of the population, to teach them to regard the Government as their friend, and to read them lessons of truth, gentleness, moderation, and respect for the rights of others, especially for the rights of the weak and the wicked, than the manner in which criminal justice is generally administered in this country.'[95]

The book produced many of those compliments to which he was becoming accustomed, with a rather rueful sense of their small value. He could, he says, set up a shop with the stock he had received, though, in common honesty, he would have to warn his customers of the small practical value of his goods. Two years hence, he thinks that a report of his being a legal author of some reputation may have reached an attorney.

Among the warmest admirers was Willes, who called the 'View' a 'grand book,' kept it by him on the bench, and laid down the law out of it.

Willes remarks in a murder case at the same time (March 1865) that the prisoner has been defended 'with a force and ability which, if anything could console one for having to take part in such a case, would do so.'

'It is a great consolation to me,' remarks Fitzjames. The local newspaper observes on the same occasion that Fitzjames's speech for the prisoner kept his audience listening 'in rapt attention' to one of the ablest addresses ever delivered under such circ.u.mstances. In the beginning of 1865 he 'obtained the consent' of his old tutor Field, now leader on the circuit, to his giving up attendance at sessions except upon special retainers. Altogether he is feeling more independent and competent for his professional duties.