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

by Leslie Stephen

VII. ECCLESIASTICAL CASES

Fitzjames's professional practice continued to be rather spasmodic; important cases occurring at intervals, but no steady flow of profitable work setting in. He was, however, sufficiently prosperous to be able to retire altogether from journalism. The 'Pall Mall Gazette' during his absence had naturally got into different grooves; he had ceased to sympathise with some of its political views; and as he had not time to throw himself so heartily into the work, he could no longer exercise the old influence. A few articles in 1874 and 1875 were his last contributions to the paper. He felt the unsatisfactory nature of the employment. He calculates soon afterwards that his collected works would fill some fifty volumes of the size of 'Liberty, Equality, Fraternity,' and he is anxious to apply his energy to less ephemeral tasks. His profession and his codes gave him work enough.

His most remarkable professional employment arose out of certain ecclesiastical cases. Sir Francis Jeune, who was concerned in some of them, has kindly described his impressions to me. Fitzjames's connection with certain prosecutions directed against the ritualists arose from a conversation between Sir F. Jeune, who was then junior counsel to the English Church Union, and its secretary the late Sir Charles Young. A counsel was required who should unite 'plenty of courage' to an intimate knowledge of the Criminal Law and power of appreciating the results of historical research. Fitzjames 'combined these requirements in a wonderful way.' Sir F. Jeune makes reservations similar to those which I have had to notice in other applications, as to Fitzjames's want of the subtlety and closeness of reasoning characteristic of the greatest lawyers. He saw things 'rather broadly,' and his literary habits tended to distract him from the precise legal point. 'I always thought of his mind,' says Sir Francis, 'as of a very powerful telescope pulled out just a little too much.' The sharp definitions, perceptible sometimes to inferior minds, were in his a little blurred. These peculiarities, however, were even advantages in this special class of business. The precedents and principles involved were rather vague, and much of the work within the province rather of the historian than of the lawyer. It involved questions as to the spirit in which the articles and rubrics had been composed by their authors. The requirement of 'courage' was amply satisfied. 'I shall never forget,' says Sir Francis, 'one occasion' in which Fitzjames was urged to take a course which he thought improper, though it was not unnaturally desired by irritated clients fighting against what they considered to be harsh legal restraint. Fitzjames at once made it clear that no client should make him deviate from the path of professional propriety. He had, in fact, indignantly refused, as I find from one of his letters, to adopt a position which implied distrust of the impartiality of the judges.

Of the cases themselves I must say generally that they often provoked a grim smile from the advocate. When, in earlier days, he had defended Dr. Williams he had spoken not merely as an advocate, but as a man who had felt that he was vindicating the intellectual liberty of the Church of which he was a member. The cases in which he was now concerned could appeal to him only as an advocate. The first in which he appeared, February 16, 1876, was sufficiently grotesque.[171] A clergyman had refused to administer the sacrament to a gentleman who had published a volume of 'Selections' from the Bible—implying, it was suggested, that he did not approve of the part not selected—and who had his doubts about the devil. The clergyman was reported to have said, 'Let him sit down and write a calm letter, and say he believes in the devil, and I will give him the sacrament.' The only legitimate causes in a legal sense for refusing the sacrament would be that a man was an 'open and notorious evil liver,' or a 'common and notorious depraver of the Book of Common Prayer.' The Court of Arches apparently held that the gentleman came under this description; but the Judicial Committee of the Privy Council, after hearing Fitzjames, decided that he did not. A man might disbelieve in the devil, without being a 'notorious evil liver,' however irrational may be his scepticism.

The most important of his appearances was in the Folkestone case.[172] His 'opening argument, and even more his reply' (upon the appeal), 'were masterpieces, and they obtained from the Privy Council a judgment in very marked contrast to those which had preceded it.' His argument, as Sir F. Jeune thinks, induced the Privy Council to some extent 'to retrace, or at least seem to retrace, its steps.' The judgment sanctioned what is known as the 'Eastern position,' and certain other ritualistic practices. In another case,[173] it was decided, in accordance with Fitzjames's argument, that a sculptured representation of the Crucifixion, as opposed to the exhibition of a crucifix, was lawful.

Fitzjames, in his letters at this time, gives his own view pretty emphatically. While you, he says to Lord Lytton, (I shall speak of this correspondence directly) 'are fighting with famine in India, I am struggling over albs and chasubles, and superstitions not more reasonable than those about Vishnu and Shiva.' 'I have been passionately labouring for the last nine days' (he says a little later in regard to the Folkestone case) 'for the liberty of the clergy to dress themselves in certain garments and stand in particular attitudes. All my powers of mind and body were devoted to these important objects, till I dreamed of chasubles and wafers.' Some years ago, he remarks, certain natives of India, having an interest in an appeal to the Privy Council, caught an idiot and slew him on a hill-top as a sacrifice to the deity who presides over the deliberations of that body. A being capable of being propitiated in that fashion might take an interest in squabbles over wafers and chasubles. 'It is a foolish subject to joke about,' he adds, 'for beyond all manner of doubt my clients' real object is to get as much idolatry as possible into the poor old Church of England, and I believe that they will sooner or later succeed in making the whole thing look absurd and breaking it up.' Whether that would be a good thing or not is a matter upon which he feels unable to make up his mind.

Amid these various occupations, Fitzjames, however fully occupied, showed no symptoms of being over-worked or over-worried. He had, in a remarkable degree, the power of taking up and dismissing from his mind the matters in each of which he was alternately absorbed. He could throw himself into codifying, or speculating, or getting up briefs at any moment and in any surroundings, and dismiss each occupation with equal readiness. He found time, too, for a good deal of such society as he loved. He heartily enjoyed little holiday tours, going occasionally to the Continent, and more frequently to some of the friends to whom he always adhered and to whom he could pour out his opinions frankly and fully. Maine was almost his next-door neighbour, and frequently consulted him upon Indian matters. He took his Sunday walks with Carlyle; and he went to stay with Froude, in whose society he especially delighted, in a summer residence in Devonshire. He frequently visited his old friend Venables in Wales, and occasionally spent a few days with members of his own family. Although ready to take up a bit of work, literary or professional, at any moment, he never appeared to be preoccupied; and could discourse with the utmost interest upon his favourite topics, though he sometimes calls himself 'unsociable'—by which he apparently means that he cared as little as might be for the unsociable kind of recreation. He was a member of the 'Cosmopolitan'; he belonged also to 'The Club' and to the 'Literary Society,' and he heartily enjoyed meeting distinguished contemporaries. In 1874 he paid a visit to his friends the Stracheys, who had taken for the summer a house at Anaverna, near Ravensdale, Co. Louth, in Ireland. He liked it so much that he resolved to become their successor. He took the house accordingly, and there spent his holidays in the summer of 1875 and the succeeding years so long as his strength lasted.

Anaverna is a village about five miles of Dundalk, at the foot of a range of grassy hills rising to a height of some 1,700 feet, within a well-wooded country below. The house stood in grounds of about sixty acres, including a wood and traversed by a mountain-stream. Fitzjames enjoyed walks over the hills, and, in the last years, drives in the lower country. To this place, and the quiet life there, Fitzjames and his family became most warmly attached. His letters abound in enthusiastic remarks about the scenery, and describe his pleasure in the intercourse with neighbours of all classes, and in the visits of old friends who came to stay with him. A good deal of his later writing was done there.