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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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applies his canons of evidence to every statement that comes up, and,
after examining it as carefully as he can, pronounces his conclusions,
unequivocally but cautiously. He will not be tempted to a single step
beyond the solid ground of verifiable fact. This undoubtedly gives
confidence to the tolerably patient reader, who learns to respect the
sobriety and impartiality of his guide. But it also fails to convince
the hasty reader that he has seen the event precisely as it happened, or
that he is in possession of a philosophical key to open all historical
problems. I do not wish for a moment to underrate the value of work
which has different qualities; but I do think that Fitzjames's merits as
a solid inquirer may be overlooked by readers who judge a writer by the
brilliance of his pictures and the neatness of his theories.

The book covers a very large field. A brief indication of its general
plan will show how many topics are more or less treated. He begins with
a short account of the Roman Criminal Law; and then of English law
before the Conquest. He next takes up the history of all the criminal
courts, including the criminal jurisdiction of the extraordinary courts,
such as Parliament and the Privy Council. This is followed by a history
of the procedure adopted in the courts, tracing especially the
development of trial by jury. The second volume opens a discussion of
certain principles applicable to crime in general, such as the theory of
responsibility. Next follows a history of the law relating to crime in
general. He then takes up the history of the principal classes of crime,
considering in separate chapters offences against the state, treason,
sedition, and seditious libels; offences against religion, offences
against the person (this opens the third volume), especially homicide;
offences against property, such as theft and forgery; offences relating
to trade and labour and 'miscellaneous offences.' This finishes the
history of the law in England, but he adds an account of the extension
of the English criminal law to India; and this naturally leads to an
exposition of his views upon codification. The exposition is mainly a
reproduction of the report of the Commission of 1878-9, which was
chiefly his own composition. Finally, the old reports of trials, with a
few alterations, are appended by way of pointing the contrast between
the English and the French methods, upon which he has already introduced
some observations.

Mr. Justice Stephen's book, said Sir F. Pollock in a review of the day,
is 'the most extensive and arduous' undertaken by any English lawyer
since the days of Blackstone. So large a framework necessarily includes
many subjects interesting not only to the lawyer but to the antiquary,
the historian, and the moralist; and one effect of bringing them
together under a new point of view is to show how different branches of
inquiry reciprocally illustrate each other. The historian of the
previous generation was content to denounce Scroggs and Jeffreys, or to
lament the frequency of capital offences in the eighteenth century, and
his moral, especially if he was a Whig, was our superiority to our
great-grandfathers. There was plenty of room for virtuous indignation.
But less attention was generally paid to the really interesting
problems, how our ancestors came to adopt and to be content with these
institutions; what precisely the institutions were, and how they were
connected with other parts of the social framework. When an advance is
made towards the solution of such problems, and when we see how closely
they connect themselves with other problems, social, ecclesiastical, and
industrial, as well as political, we are making also a step towards an
intelligent appreciation of the real meaning of history. It is more than
a collection of anecdotes, or even, as Carlyle put it, than the essence
of a multitude of biographies; it becomes a study of the growth of an
organic structure; and although Fitzjames was reluctant, even to excess,
to put forward any claim to be a philosophical historian, a phrase too
often applied to a dealer in 'vague generalities,' I think that such
work as his was of great service in providing the data for the truly
philosophical historian who is always just on the eve of appearing.

I venture to touch upon one or two points with the purpose of suggesting
in how many ways the history becomes involved in topics interesting to
various classes of readers, from the antiquary to the student of the
development of thought. The history of trial by jury had, of course,
been already unravelled by previous historians. Fitzjames was able,
however, to produce quaint survivals of the old state of things, under
which a man's neighbours were assumed to be capable of deciding his
guilt or innocence from their own knowledge. There was the Gibbet Law of
Halifax, which lasted till the seventeenth century. The jurors might
catch a man 'handhabend, backbarend, or confessand,' with stolen goods
worth 13-1/2_d._ in his possession and cut off his head on a primitive
guillotine without troubling the judges. Even in 1880 there existed (and
I presume there still exists) a certain 'liberty of the Savoy,' under
the shadow of the new courts of justice, which can deal with keepers of
disorderly houses after the same fashion.[177] From this primitive
institution Fitzjames has to grope his way by scanty records to show
how, during the middle ages, the jury ceased to be also witnesses and
became judges of fact informed by witnesses. Emerging into the period of
the Tudors and the early Stuarts, he comes to trials full of historic
interest; to the dramatic scenes in which Sir Thomas More, and
Throckmorton, and Raleigh played their parts. He has to show how in a
period of overpowering excitement, when social organisation was far
weaker, and the power of the rulers more dependent upon personal vigour,
the Government dealt out sharp and short justice, though juries still
had to be cajoled or bullied; how the system was influenced by the
growth of the Star Chamber, with a mode of procedure conforming to a
different type; and how, when the tyranny of such courts had provoked
indignation, they were swept away and left to the jury its still
undisputed supremacy. From the time when honest John Lilburne wrangled
successfully against Cromwell's judges, it began to assume a special
sanctity in popular belief. Then we come to the Popish plots and the
brutalities of Scroggs and Jeffreys, when the jury played a leading
part, though often perverted by popular or judicial influence, and
without any sound theory of evidence. The revolution of 1688 swept away
the grosser abuses; the administration of justice became decorous and
humane; a spirit of fair play showed itself; the laws of evidence were
gradually worked out; and, instead of political tragedies, we have a
number of picturesque cases throwing the strangest gleams of light into
all manner of odd dark social corners. Within the last century, finally,
the mode of investigating crime has become singularly dignified,
impartial, and substantially just. A survey of this long history,
bringing out at every step picturesque incidents and curious
illustrations of social and political constitutions, lights up also the
real merits and defects of the existing system. Fitzjames, with much
fuller knowledge and longer experience, adheres substantially to his
previous opinion. He has not, of course, the old-fashioned worship for
the 'palladium of our liberties'; jurors could be 'blind and cruel'
under Charles II., and as severe as the severest judge under George III.
They are not more likely to do justice than a single judge. But the
supreme advantages of placing the judge in his proper position as
mediator and adviser, and of taking the public into confidence as to the
perfect impartiality of the proceedings, outweigh all objections.

Again we have the curious history of the 'benefit of clergy.' Before
1487, a man who could read and write might commit murder as often as he
pleased, subject to an indefinite chance of imprisonment by the
'ordinary.' At a later period, he could still murder at the cost of
having M branded on the brawn of his thumb. But women and men who had
married two wives or one widow did not enjoy this remarkable privilege.
The rule seems as queer and arbitrary as any of the customs which excite
our wonder among primitive tribes. The explanation, of course throws a
curious light upon the struggle between Church and State in the middle
ages; and in the other direction helps to explain the singularities of
criminal legislation in the eighteenth century. Our grandfathers seem to
have thought that felony and misdemeanour were as much natural classes
as mammal and marsupial, and that all that they could do was to remove
the benefit of clergy when the corresponding class of crime happened to
be specially annoying. They managed to work out the strange system of
brutality and laxity and technicality in which the impunity of a good
many criminals was set off against excessive severity to others.

The spiritual courts, again, give strange glimpses into the old
ecclesiastical system. The records show that from the time of the
Conquest to that of the Stuarts a system prevailed which was equivalent
to the Spanish Inquisition, except that it did not use torture. It
interfered with all manner of moral offences such as that of Eleanor
Dalok, a 'communis skandalizatrix,' who 'utinizavit' (supposed to be a
perfect of _utinam_) 'se fuisse in inferno quamdiu Deus erit in cælo, ut
potuisset uncis infernalibus vindicare se de quodam Johanne Gybbys
mortuo.' The wrath provoked by this and more vexatious interferences
makes intelligible the sweeping away of the whole system in 1640. With
this is connected the long history of religious persecution, from the
time when (1382) the clergy forged an act of Parliament to give the
bishops a freer hand with heretics. Strange fragments and shadows of
these old systems still remain; and according to Fitzjames it would
still in strict law be a penal offence to publish Renan's 'Life of
Christ.'[178] The attempt to explain the law as referring to the manner,
not the matter, of the attack is, he thinks, sophistical and the law
should be simply repealed. A parallel case is that of seditious libels;
and there is a very curious history connected with the process by which
we have got rid of the simple, old doctrine that all attacks upon our
rulers, reasonable or otherwise, were criminal.

These are some of many cases in which Fitzjames has to give a side of
history generally left in comparative obscurity. Upon some matters, as,
for example, upon the history of impeachments, he thought that he had
been able to correct or clear up previous statements. I have only wished
to show how many interesting topics come into his plan; and to me, I
confess, the most interesting of all is the illustration of the amazing
nature of the so-called intellectual process involved. People seem to
begin by making the most cumbrous and unreasonable hypotheses possible,
and slowly and reluctantly wriggling out of them under actual
compulsion. That is not peculiar to lawyers, and may have a meaning even
in philosophy.

Fitzjames's comments upon the actual state of the law brings him to many
important ethical problems. The discussion of the conditions of legal
responsibility is connected with that of moral responsibility. Fitzjames
once more insists upon the close connection between morality and law.
'The sentence of the law,' he says, 'is to the moral sentiment of the
public what a seal is to hot wax. It converts into a permanent final
judgment what might otherwise be a transient sentiment.' The criminal
law assumes that 'it is right to hate criminals.' He regards this hatred
as a 'healthy natural feeling'; for which he again quotes the authority
of Butler and Bentham. The legal mode of expressing resentment directs
it to proper applications in the same way as the law of marriage gives
the right direction to the passion of love. From his point of view, as I
have already indicated, this represents the necessary complement to the
purely utilitarian view, which would make deterrence the sole legitimate
end of punishment. The other, though generally consistent, end is the
gratification of the passion of moral indignation.[179]

Hence arise some difficult questions. Fitzjames insists, in agreement
with Bentham, and especially with James Mill, that the criminal law is
concerned with 'intentions,' not with 'motives.' All manner of
ambiguities result from neglecting this consideration. The question for
the lawyer is, did the prisoner mean to kill? - not, what were his
motives for killing? The motives may, in a sense, have been good; as,
for example, when a persecutor acts from a sincere desire to save souls.
But the motive makes no difference to the sufferer. I am burnt equally,
whether I am burnt from the best of motives or the worst. A rebel is
equally mischievous whether he is at bottom a patriot or an enemy of
society. The legislator cannot excuse a man because he was rather
misguided than malignant. It is easy to claim good motives for many
classes of criminal conduct, and impossible to test the truth of the
excuse. We cannot judge motives with certainty. The court can be sure
that a man was killed; it can be sure that the killing was not
accidental; but it may be impossible to prove that the killer had not
really admirable motives.

But if so, what becomes of the morality? The morality of an act is of
course affected (if not determined) by the motive.[180] We can secure,
no doubt, a general correspondence. Crimes, in nine cases out of ten,
are also sins. But crimes clearly imply the most varying degrees of
immorality: we may loathe the killer as utterly vile, or be half
inclined very much to applaud what he has done. The difficulty is
properly met, according to Fitzjames, by leaving a wide discretion in
the hands of the judge. The jury says the law has been broken; the judge
must consider the more delicate question of the degree of turpitude
implied. Yet in some cases, such as that of a patriotic rebel, it is
impossible to take this view. It is desirable that a man who attacks the
Government should attack it at the risk of his life. Law and morality,
therefore, cannot be brought into perfect coincidence, although the
moral influence of law is of primary importance, and in the normal state
of things no conflict occurs.

There are certain cases in which the difficulty presents itself
conspicuously. The most interesting, perhaps, is the case of insanity,
which Fitzjames treats in one of the most elaborate chapters of his
book. It replaces a comparatively brief and crude discussion in the
'View,' and is conspicuously candid as well as lucid. He read a great
many medical treatises upon the subject, and accepts many arguments from
an opponent who had denounced English judges and lawyers with irritating
bitterness. There is no difficulty when the madman is under an illusion.
Our ancestors seem to have called nobody mad so long as he did not
suppose himself to be made of glass or to be the Devil. But madness has
come to include far more delicate cases. The old lawyers were content to
ask whether a prisoner knew what he was doing and whether it was wrong.
But we have learnt that a man may be perfectly well aware that he is
committing a murder, and know murders to be forbidden in the Ten
Commandments, and yet unable to refrain from murder. He has, say the
doctors, homicidal monomania, and it is monstrous to call in the hangman
when you ought to be sending for the doctor. The lawyer naturally
objects to the introduction of this uncertain element, which may be
easily turned to account by 'experts' capable of finding symptoms of
all kinds of monomania. Fitzjames, however, after an elaborate
discussion, decides that the law ought to take account of mental disease
which operates by destroying the power of self-control. The jury, he
thinks, should be allowed to say either 'guilty,' or 'not guilty on the
ground of insanity,' or 'guilty, but his power of self-control was
diminished by insanity.'[181] I need not go into further detail, into a
question which seems to be curiously irritating to both sides. I am
content to observe that in the earlier book Fitzjames had been content
with the existing law, and that the change of opinion shows very careful
and candid consideration of the question, and, as I think, an advance to
more moderate and satisfactory conclusions.

The moral view of the question comes out in other relations. He
intimates now and then his dissatisfaction with the modern
sentimentalism, his belief in the value of capital and other corporal
punishments, and his doubt whether the toleration of which he has traced
the growth can represent more than a temporary compromise. But these
represent mere _obiter dicta_ which, as he admits, are contrary to
popular modes of thought. He is at least equally anxious to secure fair
play for the accused. He dwells, for example, upon the hardships
inflicted upon prisoners by the English system of abstinence from
interrogation. The French plan, indeed, leads to cruelty, and our own
has the incidental advantage of stimulating to the search of independent
evidence. 'It is much pleasanter,' as an Indian official remarked to him
by way of explaining the practice of extorting confessions in India, 'to
sit comfortably in the shade rubbing red pepper into a poor devil's eyes
than to go about in the sun hunting up evidence.'[182] Fitzjames,
however, frequently remarked that poor and ignorant prisoners,
unaccustomed to collect their ideas or to understand the bearing of
evidence, are placed at a great disadvantage by never having stated
their own cases. The proceedings must pass before them 'like a dream
which they cannot grasp,' and their counsel, if they have counsel, can
only guess at the most obvious line of defence. He gives instances of
injustice inflicted in such cases, and suggests that the prisoners
should be made competent witnesses before both the magistrates and the
judge. This would often enable an innocent man to clear up the case; and
would avoid the evils due to the French system.[183]

Without going further into this or other practical suggestions, I will
quote his characteristic conclusion. The Criminal Law, he says, may be
regarded as an expression of the second table of the Ten Commandments.
It follows step by step the exposition of our duty to our neighbours in
the Catechism. There was never more urgent necessity for preaching such
a sermon than there is at present. There was never so much doubt as to
other sanctions. The religious sanction, in particular, has been
'immensely weakened, and people seem to believe that if they do not
happen to like morality, there is no reason why they should be moral.'
It is, then, 'specially necessary to those who do care for morality to
make its one unquestionable indisputable sanction as clear and strong
and emphatic as acts and words can make it. A man may disbelieve in God,
heaven, and hell; he may care little for mankind, or society, or for the
nation to which he belongs - let him at least be plainly told what are
the acts which will stamp him with infamy, hold him up to public
execration and bring him to the gallows, the gaol, or the lash.'[184]
That vigorous summary shows the connection between the 'Liberty,
Equality, Fraternity,' the various codifying enterprises, and his
writings upon theology and ethics. The remarkable point, if I am not
mistaken, is that in spite of the strong feeling indicated by the
passage just quoted, the tone of the book is throughout that of sound
common sense, impartiality, and love of fair play. It is characteristic
that in spite of his prejudice against the commonplaces about progress,
he does, in fact, show that the history of criminal law is in many most
important respects the history of a steady advance in humanity and
justice. Nor, in spite of a reservation or two against 'sentimentalism,'
does he fail to show hearty sympathy with the process of improvement.


In the summer (1883) which followed the publication of the 'History,' it
began to appear that Fitzjames's health was not quite so vigorous as it
had hitherto been. He could not throw off the effects of a trifling
accident in June so rapidly as of old; and in the last months of the
year his condition caused for a time some anxiety to his wife.
Considered by the light of what afterwards happened, these symptoms
probably showed that his unremitting labours had inflicted a real though
as yet not a severe injury upon his constitution. For the present,
however, it was natural to suppose that he was suffering from nothing
more than a temporary exhaustion, due, perhaps, to the prolonged wrestle
with his great book. Rest, it was believed, would fully restore him. He
was, indeed, already at work again upon what turned out to be his last
considerable literary undertaking. The old project for a series of
law-books probably seemed rather appalling to a man just emerging from
his recent labours; and those labours had suggested another point to
him. The close connection between our political history and our criminal
law had shown that a lawyer's technical knowledge might be useful in
historical research. He resolved, therefore, to study some of the great
trials 'with a lawyer's eye'; and to give accounts of them which might
exhibit the importance of this application of special knowledge.[185] He
soon fixed upon the impeachment of Warren Hastings. This not only
possessed great legal and historical interest, but was especially
connected with his favourite topics. It would enable him to utter some
of his thoughts about India, and to discuss some very interesting points
as to the application of morality to politics. He found that the
materials were voluminous and intricate. Many blue books had been filled
by the labours of parliamentary committees upon India; several folio
volumes were filled with reports of the impeachment of Hastings, and
with official papers connected with the same proceeding. A mass of other
materials, including a collection of Sir Elijah Impey's papers in the
British Museum, soon presented themselves. Finally, Fitzjames resolved
to make an experiment by writing a monograph upon 'Impey's Trial of
Nuncomar,' which is an episode in the great Warren Hastings story,
compressible within moderate limits. Impey, as Fitzjames remarks
incidentally, had certain claims both upon him and upon Macaulay; for he
had been a Fellow of Trinity and had made the first attempt at a code in
India. If this first book succeeded Fitzjames would take up the larger
subject. In the event he never proceeded beyond the preliminary stage.
His 'Story of Nuncomar and the Impeachment of Sir Elijah Impey,'
published in the spring of 1885, gives the result.

Fitzjames had been familiar from his boyhood with the famous article
upon Warren Hastings, in which Macaulay reached the very culminating
point of his surpassing literary skill. It is a skill which, whatever
else may be said of it, makes his opponents despair. They may disprove
his statements; they can hardly hope to displace his versions of fact
from their hold upon popular belief. One secret of Macaulay's art is
suggested by the account of his delight in 'castle-building.' His vast
reading and his portentous memory enabled him to create whole galleries
of mental pictures of the past, and his vigorous style embodies his
visions with admirable precision and sharpness of outline. But, as those
who have followed him in detail became painfully aware, there is more
than one deduction to be made from his merits. His imagination
undoubtedly worked upon a great mass of knowledge; but the very nature
of the imaginative process was to weave all the materials into a
picture, and therefore to fill up gaps by conjecture. He often
unconsciously makes fancy do the work of logic. 'The real history' (of
the famous quarrel between Addison and Steele), says Macaulay, 'we have
little doubt, was something like this': and he proceeds to tell a story
in minute detail as vividly as if he had been an eye-witness. To him,
the clearness of the picture was a sufficient guarantee of its
truthfulness. It was only another step to omit the 'doubt' and say
simply 'The real history was.' Yet all the time the real history
according to the best evidence was entirely different. We can never be
certain whether one of Macaulay's brilliant pictures is - as it sometimes

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 33 of 41)