The Life of Sir James Fitzjames Stephen, Bart., K.C.S.I. / A Judge of the High Court of Justice

by Leslie Stephen

IV. CODIFICATION IN ENGLAND

Fitzjames had returned to act again as Commissioner at Wells. There he had to listen to a vehement sermon from Archdeacon Denison, in favour of auricular confession, and glancing, as his hearer fancied, at a certain article in the 'Pall Mall Gazette.' He had afterwards a pleasant chat with Freeman, 'not a bad fellow at all,' though obviously a 'terrible pedant.' He hears from Coleridge, who has finally decided against accepting the Mastership of the Rolls, and hopes that Fitzjames may still be his colleague. The old Chief Baron is still charming, and says ('though I don't believe it') that he never knew what mental fatigue meant, and that when he was Solicitor-General he was never in bed for more than two or three hours for four or five nights a week ('which, again, I do not believe'). However, it is undeniable that he can still do his work as well as many younger men.

The chance of the Solicitor-Generalship was soon extinguished. Coleridge was friendly, but explained that political considerations might prevent any attention being paid to his personal wishes. In September, in fact, Sir Henry James was appointed to the vacant post and the hope finally disappeared. There was still, however, a possibility of a seat on the bench, which would please him still better. He feels that his proper place is out of Parliament. He could exercise more influence 'than all the Solicitor-Generals in the world' by simply devoting himself to writing, and he is full of plans for books. But he would like to be a judge for the sake both of the money and the work. 'The administration of justice is really the best thing which is going on in the nation.' On January 9, 1874, however, he announces that his little 'bubble about the judgeship, which looked a very bright bubble indeed, has gone where all bubbles go.' Twenty people had congratulated him upon his appointment and three judges had written to recommend clerks. Last night he had heard decisively that he was not to have it. Coleridge, too, had become Lord Chief Justice and the Government business had gone elsewhere. Well, he will 'put on some extra work to keep hold of the wolf's ears which he has held so long.' Coleridge, I may add, still took an interest in Fitzjames's codification schemes, and they even agreed, or rather vaguely proposed, to act the parts of 'Moses and Aaron,' Fitzjames inspiring measures of which Coleridge was to take charge in the House of Lords. This dream, however, vanished like others.

The dissolution of Parliament in January, 1874, was followed by a general election. Proposals were made to Fitzjames to stand at several places; including Dundee, where, however, Mr. Jenkins was elected. For one reason or other he declined the only serious offers, and was 'not sorry.' He could not get over 'his dislike to the whole affair.' He 'loathed elections,' and 'could not stand the idea of Parliament.' Disraeli soon came into office, and 'the new ministry knew not Joseph.' Fitzjames had quite got over his disappointment about the judgeship, though he admits that he had at first felt it 'bitterly.' He has not known how to find favour with chancellors or ministers. He therefore resolves to make his own way; he cares more for what he is in himself than for the position he holds; and he reconciles himself 'to the prospect which obviously lies before him,' of obscure hard 'labour for a good many years.' He 'puts away all his fair hopes in his pocket, and resolves to do three things: a good bit of codifying,' whether on his own account or for Government; a little book about India; and finally the magnum opus which he had so long meditated, which he thought that he ought to begin when he was fifty (he was at this time just forty-five), and which might take about fifteen years. The little book about India is afterwards frequently mentioned in his letters under its proposed title, 'The English in India.' It was, I think, to be more or less historical, and to occupy some of the ground covered by Sir Alfred Lyall's 'British Dominion in India.' It never took definite shape, but led to the work upon Impey, of which I shall have to speak hereafter. Meanwhile he is not without some good professional omens. He feels that he will have to 'restrict his circuiteering,' and not to go to most of the towns without special retainers. Good work is coming to him in London, though not so frequently as might be wished.

The codifying, in fact, took up much of his time. The 'Homicide Bill' was introduced into Parliament this year (1874) by Russell Gurney, and referred to a Select Committee. They consulted Cockburn, Bramwell, and Blackburn, who appear to have been on the whole hostile. Bramwell, however, declared that the Bill was 'excellently drawn,' and in a friendly letter to Fitzjames condemned the spirit of hostility in which it had been received by other judges. The main objection put forward by Cockburn and accepted by the Committee was the objection to a partial measure. The particular question of homicide involved principles applying to other parts of the criminal law; and a partial treatment would only serve to introduce confusion and doubt. The Committee accordingly recommended that the Bill should be dropped. Fitzjames accepted this not as a reason for abandoning the attempt but for extending the scope of the proposed measure. The result will appear presently.

The change of Government was not altogether unfavourable. Early in March he received instructions from Lord Salisbury, who had succeeded the Duke of Argyll at the India Office, to consolidate the Acts relating to the government of India. He set to work with his usual energy, and a statement prefixed to the printed draft of the Bill is dated June 2, 1874. In less than three months he had done a big piece of work. The consolidation of these laws had been in contemplation in England and India for some time. Various preparations had been made by Government, including a draft of the proposed Act by Mr. Herman Merivale, then permanent undersecretary at the India Office. Fitzjames, however, had to go through the whole, and, as he laments, without such help as he could have commanded from his subordinates in India. He prepared an elaborate schedule showing every unrepealed section of every Act relating to India since 1770. The 'kernel of the law' was contained in eight Acts; the 'Regulating Act' of 1773, the Acts upon the successive renewal of the Company's charter, and the Acts passed upon the transference of the Company's powers to the Crown. As each of these had been superposed upon its predecessors without repealing them, it was necessary to go through them all to discover what parts were still in force; how far any law had been modified by later enactments, and what parts of the law it might be desirable to leave unaltered; and then to fuse the whole into unity. Fitzjames proposes to repeal forty-three Acts with the exception of certain sections, and to substitute for the repealed portions a single Act of 168 sections, shorter, as he remarks, than some of those repealed. The result would be to save a great deal of labour to hard-worked Indian officials, who required to know the precise limits of their authority; and the Act would form a complete constitutional code, determining the powers and the mutual relations of the whole Indian administrative and legislative system.

The draft was carefully criticised by the authorities. Fitzjames himself went through it again in the following January with Maine and Sir Erskine Perry, and it was finally made ready to be laid before Parliament. Lord Salisbury introduced in the following session a preparatory measure which would be incidentally required. This, however, was withdrawn in consequence, it seems, of objections made by the Legislative Council in India, and the whole code went to the usual limbo. I do not know what was the precise nature of the objection, but probably it was thought that the new law might stir up questions which it was better to leave in repose. Anyhow, nothing came of it. 'You have done your work and got your fee, and what more do you want?' observed a cynical friend. To which Fitzjames could only reply, ruefully enough, 'True, O King.'

This task interrupted another upon which he had been engaged, and which he took up again as soon as it was finished. He writes upon July 3, 1874, that his prospects have improved, and that he has therefore 'turned his mind to his books in real earnest.' They are a 'large family' and rather crowd upon him. However, his first enterprise will be 'a codification of the English law of contracts, founded upon the Indian Act, but larger and more elaborate in every way.' If the country takes to codifying (the dream had not yet vanished), this might become his profession. Anyhow, he will be able to give his mind to what he really cares for. He had been already hard at work upon his 'Contract Book' in the winter before he was instructed to prepare the Acts for the Government of India. This task, I may observe, had led him to study some of the German jurists. He had perfected his German with the help of a master in the summer of his return, and was now able to read the language comfortably. He expresses at first sight anything but acquiescence in German claims to philosophical pre-eminence, but after a time he comes to understand the respect which Austin professed for Savigny. His study of the Law of Contracts was apparently broken off by a renewed call to take up once more the Criminal Law. Of this I shall have to speak presently.

The reference just quoted to improved prospects is to be explained by an influx of parliamentary business which took place at this time. He was leading counsel in the session of 1874 for the London, Chatham and Dover Railway Company, and appeared for them in several cases. The impression which he made upon professional observers has been reported to me by more than one competent witness. It is such as may be foreseen. 'You are bringing your steam hammer to crack a nut again,' was the remark made to one of them by a friend. Admiration for his 'close reasoning, weighty argument, and high tone of mind,' is cordially expressed. He never threw a word away, always got to the core of a question, and drove his points well home. And yet he did not seem to be in the field best adapted for his peculiar gifts. He was too judicial, too reluctant to put a good face upon a bad cause, not enough of a rhetorician, and not sufficiently alert in changing front, or able to handle topics with the lightness of touch suitable to the peculiar tastes of a parliamentary Committee. Thus, though he invariably commanded respect, he failed to show the talent necessary for the more profitable, if not more exalted lines of professional success. Business still continued to present itself in the most tantalising form; it came in gushes and spurts, falling absolutely dead at one moment and then unexpectedly reviving. He had occasionally successful circuits; but failed to step into the vacant place made by the elevation to the bench of his old tutor, Lord Field, in 1875, and gradually went his rounds less regularly. Meanwhile a good deal of business of a different kind presented itself. At the end of 1874, I find him mentioning that he had eleven cases before the Judicial Committee of the Privy Council. He appeared in a good many colonial and Indian appeals, and afterwards, as I shall have occasion to notice, in certain ecclesiastical cases. I do not think, however, that I need dwell upon this part of his career.

One remark must be made. Fitzjames was still doomed to be an illustration of the curious disproportion which may exist between a man's intrinsic power and his fitness for professional success. Still, as at college, he was distanced in the race by men greatly his inferiors in general force of mind, but better provided with the talent for bringing their gifts to market. Such a position was trying, for it was inevitable that he should be himself more conscious of his abilities than of his limitations. His incapacity for acquiring the dexterities by which men accommodate themselves to their neighbours' wants implied a tendency rather to under-estimate the worth, whatever it may be, of such dexterities. The obstacle to his success was just the want of appreciation of certain finer shades of conduct, and therefore remained unintelligible to himself. He was like a painter of very keen and yet narrowly limited vision, who could not see the qualities which lead people to prefer the work of a long-sighted man. Yet he not only never lost heart, but, so far as I can discover, was never for a moment querulous or soured. He was never for an instant in danger of becoming a 'man with a grievance.' He thought, of course, that his views were insufficiently appreciated; but he complained, not of individuals, but of general causes which were practically irremovable, and against which it was idle to fret. If, in writing to his closest friends, he indulges in a momentary grumble over the 'bursting of a bubble,' he always adds that he is ashamed of himself for the feeling, and emphatically declares himself to be one of the happiest and most fortunate of men. When, therefore, I report his various disappointments, I must be understood to imply that they never lowered his courage even in the most trifling degree, or threw over his course more than such passing fits of shadow as even the strongest man must sometimes traverse. Nobody could have been cheerier, more resolute, or more convinced that his lines had fallen in pleasant places.