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The life of Sir James Fitzjames Stephen, bart., K.C.S.I., a judge of the High court of justice online

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however, was not easy to advise, and Fitzjames, thinking him
ill-treated, obtained help from several friends and subscribed himself
to the Captain's support. After long negotiations the case finally came
into court in December 1859, when Fitzjames consented to appear as the
Captain's counsel, although he had foreseen the unsuccessful result. He
continued to do what he could for the sufferer, to whose honourable,
though injudicious conduct he bears a strong testimony, and long
afterwards (1879) obtained for him a pension of 40_l._ from the Civil
List, which is, I fear, Captain Snow's only support in his old age.[74]

In August 1859 Fitzjames was made recorder of Newark. The place, which
he held till he went to India in 1869, was worth only 40_l._ a year; but
was, as he said, a 'feather in his cap,' and a proof of his having
gained a certain footing upon his circuit. It gave him his first
experience as a judge, and I may mention a little incident of one of his
earliest appearances in that character. He had to sentence a criminal to
penal servitude, when the man's wife began to scream; he was touched by
her grief, and left a small sum with the mayor to be given to her
without mention of his name. The place was, it seems, practically the
gift of the Duke of Newcastle; and Bethell, then Attorney-General, wrote
to him in favour of Fitzjames's appointment. I am not aware how Bethell
came to have any knowledge of him; but Fitzjames had formed a very high
opinion of the great lawyer's merits. He showed it when Bethell, then
Lord Westbury, was accused of misconduct as Lord Chancellor. He thought
that the accusations, if not entirely unfounded, were grossly
exaggerated for party purposes. He could not persuade the 'Pall Mall
Gazette,' for which he was then writing, to take this view; but upon
Westbury's resignation he obtained the insertion of a very cordial
eulogy upon the ex-chancellor's merits as a law reformer.

The appointment to the recordership was one of the last pieces of
intelligence to give pleasure to my father. Fitzjames had seen much of
him during the last year. He had spent some weeks with him at Dorking in
the summer of 1858, and had taken a little expedition with him in the
spring of 1859. My father injured himself by a walk on his seventieth
birthday (January 3, 1859), and his health afterwards showed symptoms of
decline. In the autumn he was advised to go to Homburg; and thence, on
August 30, he wrote his last letter, criticising a draft of a report
which Fitzjames was preparing for the Education Commission, and
suggesting a few sentences which would, he thinks, give greater
clearness and emphasis to the main points. Immediately afterwards
serious symptoms appeared, due, I believe, to the old break-down of
1847. My father was anxious to return, and started homewards with my
mother and sister, who had accompanied him. They got as far as Coblenz,
where they were joined by Fitzjames, who had set out upon hearing the
news. He was just in time to see his father alive. Sir James Stephen
died September 14, 1859, an hour or two after his son's arrival. He was
buried at Kensal Green, where his tombstone bears the inscription: 'Be
strong and of a good courage; be not afraid, neither be thou dismayed:
for the Lord thy God is with thee whithersoever thou goest.' The words
(from Joshua i. 9) were chosen because a friend remembered the emphasis
with which my father had once dwelt upon them at his family prayers.
With the opening words of the same passage my brother concluded the book
which expressed his strongest convictions,[75] and summed up his
practical doctrine of life. What he felt at the time may be inferred
from a striking essay upon the 'Wealth of Nature,' which he contributed
to the 'Saturday Review' of September 24, 1859.[76] It may be considered
as a sermon upon the text of Gray's reflections in the 'Elegy' upon the
'hearts once pregnant with celestial fire' which lie forgotten in the
country churchyard. What a vast work has been done by the unknown! what
must have been the aggregate ability of those who, in less than thirty
generations, have changed the England of King Alfred into the England of
Queen Victoria! and yet how few are remembered! How many actions even,
which would be gladly remembered, are constantly forgotten? 'The Indian
Empire,' he says characteristically, 'is the most marvellous proof of
this that the world can supply. A man died not long ago who, at
twenty-five years of age, with no previous training, was set to govern a
kingdom with absolute power, and who did govern it so wisely and firmly
that he literally changed a wilderness into a fruitful land. Probably no
one who reads these lines will guess to whom they allude.' I can,
however, say that they allude to James Grant Duff (1789-1858), author of
the 'History of the Mahrattas,' and father of his friend Sir
Mountstuart. Fitzjames had visited the father in Scotland, and greatly
admired him. His early career as resident of Sattara sufficiently
corresponds to this statement. It is well, as Fitzjames maintained, that
things should be as they are. Fame generally injures a man's simplicity;
and this 'great reserve fund of ability' acts beneficially upon society
at large, and upon the few conspicuous men who are conscious of their
debt to their unknown colleagues. It would be a misfortune, therefore,
if society affected to class people according to their merits; for, as
it is, no one need be ashamed of an obscurity which proves nothing
against him. We have the satisfaction of perceiving everywhere traces of
skill and power, proving irrefragably that there are among us men 'who
ennoble nearly every walk of life, and would have ennobled any.' A
similar tone appears in the short life of his father, written in the
following year. True success in life, he says, is not measured by
general reputation. Sir James Stephen's family will be satisfied by
establishing the fact that he did his duty. It was an instance of
'prosperity' that his obscurity 'protected him, and will no doubt
effectually protect his memory against unjust censure and ignorant

The deaths of two old friends of his father's and his own marked the
end of the year. On December 20, 1859, he hears of the death of John
Austin, and proposes to attend the funeral, 'as there were few men for
whom I had more respect or who deserved it more.' His admiration for
Austin was at this time at its warmest.[77] Macaulay died on December
28, 1859; and on January 5, 1860, Fitzjames writes from Derby, where he
has been all night composing a 'laudation' of the historian for the
'Saturday Review.'[78] It is 7.45 A.M., and he has just washed and
dressed, as it is too late to go to bed before court. 'Tom Macaulay,' as
has been seen, had been a model held up to him from infancy, and to the
last retained a strong hold upon his affectionate remembrance.

Fitzjames was now completing his thirty-first year, and was emerging
into a more independent position. He was in the full flow of energetic
and various work, which was to continue with hardly an intermission
until strength began to fail. At this period he was employed in the
Education Commission, which for some time was meeting every day; he was
writing for the 'Saturday Review' and elsewhere; he was also beginning
to write an independent book; and he was attending his circuit and
sessions regularly and gradually improving his position.[79] The story
thus becomes rather complicated. I will first say a little of his
professional work during the next few years, and I will then mention
three books, which appeared from 1861 to 1863, and were his first
independent publications; they will suggest what has to be said of his
main lines of thought and work.


His practice at the bar was improving, though not very steadily or
rapidly. 'Those cases, like Snow's or Bacon's,' he observes (Dec. 17,
1859), 'do me hardly any good.... I am making a reputation which would
be very useful for an older man who already had business, but is to me
glory, not gain. I am like a man who has good expectations and little or
no income.' Still his position is better: he has made 100_l._ this year
against 50_l._ the year before; he is beginning to 'take root,'
especially at sessions; and he 'thoroughly delights in his profession.'
In March 1860 he reports some high compliments from Mr. Justice Willes
in consequence of a good speech; and has had inquiries made about him by
attornies. But the attornies, he thinks, will have forgotten him before
next circuit. There never was a longer hill than that which barristers
have to climb; but 'it is neither a steep nor an unpleasant hill.' In
July 1861 he was appointed to a revising barristership in North
Derbyshire by Chief Baron Pollock, and was presented with a red bag by
his friend Kenneth Macaulay, now leader of the circuit. He makes 100_l._
on circuit, and remarks that this is considered to mark a kind of
turning-point. In 1862 things improve again. In July he is employed in
three cases of which two were 'glorious triumphs,' and the third, the
'Great Grimsby riot,' which is 'at present a desperate battle,' is the
biggest case he has yet had on circuit. The circuit turns out to be his
most profitable, so far. On October 20 he reports that he has got pretty
well 'to the top of the little hill' of sessions, and is beginning,
though cautiously, to think of giving them up and to look forward to a
silk gown. In 1863 he has 'a wonderful circuit' (March 20) above
200_l._, owing partly, it would seem, to Macaulay's absence, and too
good to be repeated. In the summer, however, he has the first circuit in
which there has been no improvement. On October 25 he is for once out of
spirits. He has had 'miserable luck,' though he thinks in his conscience
that it has been due not to his own fault, but to the 'stupidity of
juries.' 'There is only one thing,' he says, 'which supports me in this,
the belief that God orders all things, and that therefore we can be
content and ought to take events as they come, be they small or great.
Whenever I turn my thoughts that way it certainly does not seem to me
very important whether in this little bit of a life I can accomplish all
that I wish - so long as I try to do my best. I have often thought that
perhaps one's life may be but a sort of school, in which one learns
lessons for a better and larger world, and if so, I can quite understand
that the best boys do not get the highest prizes, and that no boy, good
or bad, ought to be unhappy about his prizes. There are things I long to
do; books I long to write; thoughts and schemes that float before me,
looking so near and clear, and yet being, as I feel, so indistinct or
distant that I shall never make anything of them. Small ties and little
rushings of the mind, briefs and magazine articles, and their like, will
clog my wheels day after day and year after year. Yet I cannot
altogether blame myself. Looking back on my life, I cannot seriously
regret any of the principal steps I have taken in it. Still I do feel
more or less disquieted or perturbed - I cannot help it.' Some
uncomfortable thoughts could hardly fail to intrude at times when the
compliments which he received from the highest authorities failed to be
backed by a corresponding recognition from attornies; and at times, I
suspect, his spirits were depressed by over-work, of which he was slow
to acknowledge the possibility. To work, indeed, he turned for one
chief consolation. He refers incidentally to various significant
performances. 'Last night,' he writes from Derby, April 10, 1862, 'I
finished a middle at two; and to-day I finished "Superstition"' (an
article in the 'Cornhill') 'in a six hours' sitting, during which I had
written thirty-two MS. pages straight off. I don't feel at all the worse
for it.' On Nov. 14 following he observes that he is 'in first-rate
health.' He wrote all night from six till three, got up at 7.30, and
walked thirty-one miles; after which he felt 'perfectly fresh and well.'
On Jan. 13, 1863, he has a long drive in steady rain, sits up 'laughing
and talking' till one; writes a review till 4.45, and next day writes
another article in court. On July 17, 1864, he finishes an article upon
Newman at 3 A.M., having written as much as would fill sixteen pages of
the 'Edinburgh Review' - the longest day's work he had ever done, and
feels perfectly well. On March 13, 1865, he gets up at six, writes an
article before breakfast, is in court all day, and has a consultation at
nine. Early rising was, I think, his commonest plan for encountering a
pressure of work; but he had an extraordinary facility for setting to
work at a moment's notice. He had a power of eating and sleeping at any
time, which he found, as he says, highly convenient. He was equally
ready to write before breakfast, or while other people were talking and
speechifying all round him in court, or when sitting up all night. And,
like a strong man, he rejoiced in his strength, perhaps a little too
unreservedly. If he now and then confesses to weariness, it never seemed
to be more than a temporary feeling.

Of the cases in which he was engaged at this period I need only mention
two - the case of Dr. Rowland Williams, of which I shall speak directly
in connection with his published 'defence'; and the case of a man who
was convicted of murder at Warwick in December 1863. The fellow had cut
the throat of a girl who had jilted him. The facts were indisputable,
and the only possible defence was insanity. Kenneth Macaulay and
Fitzjames were counsel for the defence, but failed, and, as Fitzjames
thought, rightly failed, to make good their case. He was, however,
deeply moved by the whole affair - the most dramatic, he says, in which
he had been engaged. The convict's family were respectable people, and
behaved admirably. 'The poor mother sat by me in court and said, "I feel
as if I could cling to anyone who could help him," and she put her hand
on my arm and held it so that I could feel every beat of her pulse. Her
fingers clutched me every time her heart beat. The daughters, too, were
dreadfully moved, but behaved with the greatest natural dignity and
calmness.' After the conviction Fitzjames felt that the man deserved to
be hanged; but felt also bound to help the father in his attempts to get
the sentence commuted. He could not himself petition, but he did his
best to advise the unfortunate parents. He used to relate that the
murderer had written an account of the crime, which it was proposed to
produce as a proof of insanity. To Fitzjames it seemed to be a proof
only of cold-blooded malignity which would insure the execution of the
sentence. He was tormented by the conflict between his compassion and
his sense of justice. Ultimately the murderer was reprieved on the
ground that he had gone mad after the sentence. Fitzjames had then, he
says, an uncomfortable feeling as if he were partly responsible for the
blood of the murdered girl. The criminal soon afterwards committed
suicide, and so finished the affair.


I turn now to the literary work which filled every available interstice
of time. In the summer of 1862 Fitzjames published 'Essays by a
Barrister' (reprinted from the 'Saturday Review'). The essays had
appeared in that paper between the end of 1858 and the beginning of
1861. From February 9, 1861, to February 28, 1863, he did not write in
the 'Saturday Review.' A secession had taken place, the causes of which
I do not precisely know. I believe that the editor wished to put
restrictions, which some of his contributors, including Fitzjames,
resented, upon the services to be rendered by them to other periodicals.
The breach was eventually closed without leaving any ill-feeling behind
it. Fitzjames at first felt the relief of not having to write, and
resolved to devote himself more exclusively to his profession. But
before long he was as hard at work as ever. During 1862 he wrote a good
many articles for the 'London Review,' which was started as a rival of
the 'Saturday Review.' He found a more permanent outlet for his literary
energies in the 'Cornhill Magazine.' It was started by Messrs. Smith &
Elder at the beginning of 1860 with Thackeray for editor; and, together
with 'Macmillan's Magazine' - its senior by a month - marked a new
development of periodical literature. Fitzjames contributed a couple of
articles at the end of 1860; and during 1861, 1862, and 1863, wrote
eight or nine in a year. These articles (which were never reprinted)
continue the vein opened in the 'Essays by a Barrister.' His connection
with the 'Magazine' led to very friendly relations with Thackeray, to
whose daughters he afterwards came to hold the relation of an
affectionate brother. It also led to a connection with Mr. George
Smith, of Smith, Elder & Co., which was to be soon of much importance.

The articles represented the development of the 'middles,' which he
considered to be the speciality of himself and his friend Sandars. The
middle, originally an article upon some not strictly political topic,
had grown in their hands into a kind of lay sermon. For such literature
the British public has shown a considerable avidity ever since the days
of Addison. In spite of occasional disavowals, it really loves a sermon,
and is glad to hear preachers who are not bound by the proprieties of
the religious pulpit. Some essayists, like Johnson, have been as solemn
as the true clerical performer, and some have diverged into the humorous
with Charles Lamb, or the cynical with Hazlitt. At this period the most
popular of the lay preachers was probably Sir Arthur Helps, who provided
the kind of material - genuine thought set forth with real literary skill
and combined with much popular sentiment - which served to convince his
readers that they were intelligent and amiable people. The 'Saturday
reviewers,' in their quality of 'cynics,' could not go so far in the
direction of the popular taste; and their bent was rather to expose than
to endorse some of the commonplaces which are dear to the intelligent
reader. Probably it was a sense of this peculiarity which made Fitzjames
remark when his book appeared that he would bet that it would never
reach a second edition. He would, I am sorry to say, have won his bet;
and yet I know that the 'Essays by a Barrister,' though never widely
circulated, have been highly valued by a small circle of readers. The
explanation of their fate is not, I think, hard to give. They have, I
think, really great merits. They contain more real thought than most
books of the kind; they are often very forcibly expressed; and they
unmistakably reflect very genuine and very strong convictions.
Unluckily, they maintain just the kind of views which the congregation
most easily gathered round such a pulpit is very much inclined to regard
with suspicion or with actual dislike.

An essay, for example, upon 'doing good' is in fact a recast of the
paper which decided his choice of a profession. It is intended to show
that philanthropists of the Exeter Hall variety are apt to claim a
monopoly of 'doing good' which does not belong to them, and are inclined
to be conceited in consequence. The ordinary pursuits are equally
necessary and useful. The stockbroker and the publican are doing good in
the sense of being 'useful' as much as the most zealous 'clergyman or
sister of mercy.' Medicine does good, but the butcher and the baker are
still more necessary than the doctor. We could get on without schools or
hospitals, but not without the loom and the plough. The philanthropist,
therefore, must not despise the man who does a duty even more essential
than those generally called benevolent, though making less demand on the
'kindly and gentle parts of our nature.' A man should choose his post
according to his character. It is not a duty to have warm feelings,
though it may be a misfortune not to have them; and a 'cold, stern man'
who should try to warm up his feelings would either be cruelly mortified
or become an intolerable hypocrite. It is a gross injustice to such a
man, who does his duty in the station fittest to his powers, when he is
called by implication selfish and indifferent to the public good. 'The
injustice, however, is one which does little harm to those who suffer
under it, for they are a thick-skinned and long-enduring generation,
whose comfort is not much affected one way or the other by the opinion
of others.'

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 Dickens 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 shore, 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 shore 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 multitude
which has passed, with more or less sin and misery, through this
mysterious earth, and what will become of those vaster multitudes 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

Online LibraryLeslie StephenThe life of Sir James Fitzjames Stephen, bart., K.C.S.I., a judge of the High court of justice → online text (page 14 of 41)