Fitzjames Stephen

“ Mill seemed to him not so much cold-blooded as bloodless, wanting in the fire and force of the full-grown male animal, and comparable to a superlatively crammed senior wrangler, whose body has been stunted by his brains. Fitzjames could only make a real friend of a man in whom he could recognise the capacity for masculine emotions as well as logical acuteness, and rightly or wrongly Mill appeared to him to be too much of a calculating machine and too little of a human being. ”

“ In January 1876, Lord Lytton [174] was appointed Governor-General of India. In February, Fitzjames dined in his company at Lord Arthur Russell's. They went afterwards to the 'Cosmopolitan,' and by the end of the evening had formed a close friendship, which was only to end with their lives. Some of Fitzjames's friends were surprised at the singular strength of attachment between two men so conspicuously different in mind and character. Some contrasts, as everyone observes, rather facilitate than [387] impede friendship ”

“ Other scenes dimly rise up, as of a tumult in the school-yard, where Fitzjames was encountering one of the strongest boys in the school amidst a delighted crowd, when the appearance of the masters stopped the proceedings. Fitzjames says that in his sixteenth year (i.e. 1844-5) he grew nearly five inches, and instead of outgrowing his strength became a 'big, powerful young man, six feet high,'—and certainly a very formidable opponent. ”

“ To Fitzjames himself the legal career always represented the substantive, and the literary career the adjective. Circumstances made journalism highly convenient, but his literary ambition was always to be auxiliary to his legal ambition. It would, of course, have been injurious to his prospects at the bar had it been supposed that the case was inverted; and as a matter of fact his eyes were always turned to the summit of that long hill of difficulty which has [135] to be painfully climbed by every barrister not helped by special interest or good fortune. ”

“ EARLY LIFE I. CHILDHOOD
In the beginning of 1829 my father settled in a house at Kensington Gore—now 42 Hyde Park Gate. There his second son, James Fitzjames, was born on March 3, 1829. James was the name upon which my grandfather insisted because it was his own. My father, because the name was his own, objected as long as he could, but at last compounded, and averted the evil omen, by adding Fitzjames. Two other children, Leslie and Caroline Emelia, were born in 1832 and 1834 at the same house. The Kensington of those days was still distinctly separate from London. ”

“ But he did not take advantage of his opponent's weakness. He would only give him up as unsuited to play the game in the proper temper. In short, he represented what is surely the normal case of an alliance between manliness and a love of fair play. It is the weaker and more feminine, or effeminate, nature that is generally tempted to resort to an unfair use of weapons.
When, therefore, Fitzjames found himself in a position of authority, he was keenly anxious to use his power fairly. [439] He became decidedly more popular on the bench than he had been at the bar. ”

“ Some gentlemen, who are certainly neither the one nor the other, have spoken warmly of his behaviour. The late Mr. Montagu Williams, for example, tells with pleasant gratitude how Fitzjames courteously came down from the bench to sit beside him and so enabled him to spare a voice which had been weakened by illness. His comment is that Fitzjames concealed 'the gentleness of a woman' under a stern exterior. So Mr. Henry Dickens tells me of an action for slander in which he was engaged when a young barrister. ”

“ At Easter 1841, my father visited the Diceys at Claybrook, and thence took his boy to see the great schoolmaster at Rugby. Fitzjames draws a little diagram to show how distinctly he remembers the scene. He looked at the dark, grave man and wondered, 'Is he now reading my character at a glance?' It does not appear that he was actually entered at Rugby, however, and my father had presently devised another scheme. The inconveniences of the Brighton plan had made themselves felt, and it now occurred to my father that he might take a house in Windsor and send both Fitzjames and me to Eton. ”

“ I need only observe that Fitzjames, in reply to some hints in his uncle's letter, observes very emphatically that a man may be serving God at the bar as in the pulpit. His career was now fixed. 'I never did a wiser thing in my life,' says 1865, 'than when I determined not to be a clergyman.' 'Amen!' says 1880, and I am sure that no other year in the calendar would have given a different answer. ”

“ So far, indeed, as his character was concerned, he had scarcely ever been a child: at Cambridge, [92] as at Eton, he regarded many of the ambitions of his contemporaries as puerile. Even the most brilliant undergraduates are sometimes tempted to set an excessive value upon academical distinction. A senior wranglership appears to them to be the culminating point of human glory, instead of the first term in the real battle of life. Fitzjames, far from sharing this delusion, regarded it, perhaps, with rather too much contempt. ”

“ Fitzjames had passed the winter of 1871-2 in Calcutta with Henry Cunningham; his wife having returned to England in November. He followed her in the spring, sailing from Bombay on April 22, 1872. To most people a voyage following two years and a half of unremitting labour would have been an occasion for a holiday. With him, however, to end one task was the same thing as to begin another, and he was taking up various bits of work before India was well out of sight. He had laid in a supply of literature suitable both for instruction and amusement. ”

“ Fitzjames delivered an elaborate judgment to show that upon the accepted precedents of law, he was not guilty, inasmuch as the original act of taking was innocent.
Another aspect of justice, upon which Fitzjames dwells in his books, was represented in his practice. A judge, according to him, is not simply a logic machine working out intellectual problems, but is the organ of the moral indignation of mankind. When, after a studiously fair inquiry, a man had been proved to be a scoundrel, he became the proper object of wrath and of the punishment by which such wrath is gratified. ”

“ Fitzjames calls himself 'self-contained'; and the epithet is quite appropriate if it is taken as not implying any connotation of real selfishness. He was, that is, sufficient for himself; he was contented so long as he could feel, as he always had a right to feel, that he was doing his work thoroughly to the very best of his abilities. He could dispense with much appreciation from outside, though it was unaffectedly welcome when it came from competent persons. He had too much self-reliance to be dependent upon any endorsement by others. ”

“ His bill for hats at Sanders' must have amounted to a stiff figure, for my visions of Fitzjames are of a discrowned warrior, returning to Windsor bareheaded, his hair moist with the steam of recent conflict.' My own childish recollections of his school life refer mainly to pugilism. In October 1842, as I learn from my mother's diary, he found a big boy bullying me, and gave the boy such a thrashing as was certain to prevent a repetition of the crime. I more vividly recollect another occasion, when a strong lad was approaching me with hostile intent. ”

“ Almost all men have to acknowledge that they have spent a great portion of their energy upon tasks which have led to nothing, or led only to experience of failure. A man who has succeeded in giving clear utterance to the thoughts that were in him need care comparatively little whether they have been concentrated in some great book or diffused through a number of miscellaneous articles. Fitzjames's various labours came to a focus in his labours upon the Criminal Law. During his short stay in India he succeeded in actually achieving a great work ”

“ He was free from the foibles of petty vanity upon which a dexterous counsel could play, and had the solid, downright force of mind and character which gives weight to authority of all kinds. I need not labour to prove that masculine common sense is a good judicial quality. Popular opinion, however, is apt to misconstrue broad epithets and to confound vigour with harshness. Fitzjames acquired, among careless observers, a certain reputation for severity. ”

“ Fitzjames had done respectably at Eton, and had been among the first lads at King's College. He probably came up to Cambridge with confidence that he would make a mark in examinations. But his mind, however powerful, was far from flexible. He had not the intellectual docility which often enables a clever youth to surpass rivals of much greater originality—as originality not unfrequently tempts a man outside the strait and narrow path which leads to the maximum of marks. ”

“ He was much at Windsor, and the anxiety which he had caused, as well as a great sweetness and openness of temper, made him, I guess, the most tenderly loved of his parents' children. He had, however, wandered pretty widely outside the limits of the Clapham Sect. He became very intimate with Fitzjames, and they [84] had long and frank discussions. This daring youth doubted the story of Noah's flood, and one phrase which stuck in his brother's mind is significant. 'You,' he said, 'are a good boy, and I suppose you will go to heaven. ”

“ J. S. Mill had begun as an unflinching advocate of the stern old utilitarianism of his father and Ricardo. He had become, as Fitzjames observes, 'humane' or 'sentimental' in later years. He tried, as his critics observe, to soften the old economic doctrines and showed a certain leaning to socialism. In regard to this part of his teaching, in which Fitzjames took little interest, I shall only notice that, whatever his concessions, he was still in principle an 'individualist.' He maintained against the Socialists the advantages of competition ”

“ Fitzjames came down to look at a model, and Wills said, 'Your Lordship will see,' &c. 'He got hold of the hand next his own, gave me a squeeze which I did not forget in a hurry, and whispered, "If you ever call me 'my lordship' again, I shall say something!"' That hand-grip, indeed, as Wills remarks, was eminently characteristic. It was like the squeeze of a vice, and often conveyed the intimation of a feeling which shrank from verbal expression.
It is plain enough that a man of such character would not find some difficulties smoothed for him. ”

“ His own health gave fresh cause for anxiety during the latter part of 1889, though happily he had little suffering at any time beyond some incidental inconvenience. On March 17, 1890, he had an attack of illness during the assizes at Exeter resembling that which he had previously had at Derby. He was again ordered to rest for three months. Sir A. Clark allowed him to go on circuit in the summer. Lord Coleridge was his colleague, and Fitzjames enjoyed his society. He afterwards went to Anaverna, and, though unable to walk far, took much pleasure in long drives. ”

“ A circuit bar, adds Mr. Lushington, 'may be roughly divided into three classes: those who are determined to make themselves heard; those who wish to be heard if God calls; and those who without objecting to be heard wish to have their pastime whether they are heard or not. Fitzjames was in the first category, and from the first did his utmost to succeed, always in the most legitimate way.' No attorney, looking at the rows of wigs in the back benches, could fail to recognise in him a man who would give his whole mind to the task before him. ”

“ Otherwise, said Fitzjames in one of his last Indian speeches (upon the Oaths and Declaration Act) a grievous crime might have escaped punishment, because five English gentlemen had made statements 'in the presence of Almighty God,' instead of kissing the Bible and saying 'So help me God.'
I must mention one other incident which occurred at the end of Fitzjames's stay in India. One Ram Singh was the spiritual and political chief of a sect called the Kookas. His disciples showed their zeal by murdering butchers as a protest against cow-killing. ”

“ Fitzjames has been writing in the 'Saturday Review,' in 'Fraser,' the 'National Review,' and elsewhere, besides having on hand a projected law-book. Is he not undertaking too much? 'No variety of intemperance is more evidently doomed to work out its own ill-reward than that which is practised by a bookseller's drudge of the higher order.' He appeals to various precedents, such as Southey, whose brain gave way under the pressure. ”

“ I am content to say that I have heard on all hands, from persons qualified to express an opinion here, that Fitzjames's work made a marked impression upon Indian legislation, and, with whatever qualifications, is admitted to have been of very great service to the administrators of the country.
I shall venture, however, to add a word or two upon the qualities, mental and moral, thus displayed. Sir C. P. [280] Ilbert says that Fitzjames was a 'Cyclopean builder. He hurled together huge blocks of rough-hewn law. ”

“ 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 substitutes for logic than in expounding his own grounds for believing in the probability. ”