IX. APPOINTMENT TO A JUDGESHIP
Meanwhile, Fitzjames had been receiving various proofs of rising reputation. In January 1877 he was made K.C.S.I. He expresses his pleasure at having the name of India thus 'stamped upon him'; and speaks of the very friendly letter in which Lord Salisbury had announced the honour, and of his gratitude for Lord Lytton's share in procuring it. The University of Oxford gave him the honorary D.C.L. degree in 1878. He was member of a Commission upon fugitive slaves in 1876, and of a Commission upon extradition in 1878.[175] He was also a member of the Copyright Commission appointed in October 1875, which reported in 1878. He agreed with the majority and contributed a digest of the law of copyright. He had occasional reasons to expect an elevation to the bench; but was as often disappointed. Upon the death of Russell Gurney (May 31, 1878) there was some talk of his becoming Recorder of London; but he did not much regret the speedy disappearance of this prospect, though it had its attractions. He was three times (1873, 1877, and 1878) appointed to act as judge upon circuit. When at last he was entrusted with the preparation of the Criminal Code in 1877, the Attorney-General expressed the opinion that a satisfactory execution of the task would entitle him to a judgeship, but could not give any definite pledge. When, however, in July 1878, it was determined to appoint a Commission to prepare a code for Parliament, Fitzjames said that he would be unable to undertake a laborious duty which would make practice at the bar impossible for the time, without some assurance of a judgeship. The Chancellor thereupon wrote a letter, which, though an explicit promise could not be made, virtually amounted to a promise. In accordance with this he was appointed on January 3, 1879, to a judgeship which had become vacant by the resignation of Sir Anthony Cleasby. A notorious journalist asserted that the promise had been made on consideration of his writing in the papers on behalf of the Indian Government. The statement is only worth notice as an ingenious inversion of the truth. So far from requiring any external impulse to write on Lytton's behalf, Fitzjames could hardly refrain from writing when its expediency was doubtful. When the occasion for a word in season offered itself, hardly any threats or promises could have induced him to keep silence. 'Judge or no judge,' he observes more than once, 'I shall be forced to write' if certain contingencies present themselves.
I give the letter in which he announced his appointment to his sister-in-law (January 4, 1879):—'My dearest Emily, I write to tell you that I am out of all my troubles. Cleasby has unexpectedly resigned, and I am to succeed him. I know how this news will delight you, and I hasten to send it, though I hope to see you to-morrow. It gives me a strange, satisfied, and yet half-pathetic feeling. One great battle is won, and one great object obtained; and now I am free to turn my mind to objects which have long occupied a great part of it, so far as my leisure will allow. I hope I have not been anxious to any unworthy or unmanly extent about the various trials which are now over.
'In such moments as this, one's heart turns to those one loves. Dearest Emily, may all good attend you, and may I and mine be able to do our shares towards getting you the happiness you so pre-eminently deserve. I don't know what to wish for; but I wish for all that is best and most for your good in the widest sense which the word can have. Ever your loving brother, J. F. S.'
In giving the news to Lord Lytton, he observes that he feels like a man who has got into a comfortable carriage on a turnpike road after scrambling over pathless mountain ranges. His business since his return has been too irregular and capricious to allow him to feel himself at his ease. That being over, he is resolved to make the bench a 'base of operations' and 'not a mere shelf.'
The hint about 'leisure' in the letter to Lady Egerton will be understood. Leisure in his mouth meant an opportunity for doing more than his duties required. He calculated on a previous occasion that, if he were a judge, he should have at his disposal three or, by good management, four working hours at his own disposal. I find him, characteristically enough, observing in an article of about the same date that the puisne judges have quite enough work without imposing any extra labour whatever upon them. But he tacitly assumed that he was to carry a double burthen. How he turned his time to account will appear directly. I need only say here that he unfeignedly enjoyed his new position. He often said that he could imagine nothing more congenial to all his wishes. He observes frequently that the judicial work is the only part of our administrative system which is still in a thoroughly satisfactory state. He felt as one who had got into a safe place of refuge, from which he could look out with pity upon those who were doomed to toil and moil, in an unhealthy atmosphere, as politicians, public officials, and journalists. He could learn to be philosophical even about the fate of his penal code.