X. GOVERNOR EYRE
The troubles in Jamaica had taken place in October 1865. The severity of the repressive measures excited indignation in England; and discussions arose conducted with a bitterness not often paralleled. The Gordon case was the chief topic of controversy. Governor Eyre had arrested Gordon, whom he considered to be the mainspring of the insurrection, and sent him to the district in which martial law had been proclaimed. There he was tried by a court-martial ordered by General Nelson, and speedily hanged. The controversy which followed is a curious illustration of the modes of reasoning of philosophers and statesmen. Nobody could deny the general proposition that the authorities are bound to take energetic measures to prevent the horrors of a servile insurrection. Nor could anyone deny that they are equally bound to avoid the needless severities which the fear of such horrors is likely to produce. Which principle should apply was a question of fact; but in practice the facts were taken for granted. One party assumed unanimously that Governor Eyre had been doing no more than his duty; and the other, with equal confidence, assumed that he was guilty of extreme severity. A commission, consisting of Sir Henry Storks, Mr. Russell Gurney, and Mr. Maule, the recorder of Leeds, was sent out at the end of 1865 to inquire into the facts. Meanwhile the Jamaica Committee was formed, of which J. S. Mill was chairman, with Mr. P. A. Taylor, the Radical leader, as vice-chairman.[99] The committee (in January 1866) took the opinions of Fitzjames and Mr. Edward James as to the proper mode of invoking the law. Fitzjames drew the opinion, which was signed by Mr. James and himself.[100] After the report of the Commission (April 1866), which showed that excesses had been committed, the committee acted upon this opinion.
From Fitzjames's letters written at the time, I find that his study of the papers published by the Commission convinced him that Governor Eyre had gone beyond the proper limits in his behaviour towards Gordon. The governor, he thought, had been guilty of an 'outrageous stretch of power,' and had hanged Gordon, not because it was necessary to keep the peace, but because it seemed to be expedient on general political grounds. This was what the law called murder, whatever the propriety of the name. Fitzjames made an application in January 1867 before Sir Thomas Henry, the magistrate at Bow Street, to commit for trial the officers responsible for the court-martial proceedings (General Nelson and Lieutenant Brand) on the charge of murder. In March he appeared before the justices at Market Drayton, in Shropshire, to make a similar application in the case of Governor Eyre. He was opposed by Mr. (the late Lord) Hannen at Bow Street, and by Mr. Giffard (now Lord Halsbury) at Market Drayton. The country magistrates dismissed the case at once; but Sir Thomas Henry committed Nelson and Brand for trial. Mr. Lushington tells me that Sir Thomas Henry often spoke to him with great admiration of Fitzjames's powerful argument on the occasion. On April 10, [1867], the trial of Nelson and Brand came on at the Old Bailey, when Chief Justice Cockburn delivered an elaborate charge, taking substantially the view of the law already expounded by Fitzjames. The grand jury, however, threw out the bill.
The law, as understood by Fitzjames, comes, I think, substantially to this. The so-called 'martial law' is simply an application of the power given by the common law to put down actual insurrection by force. The officers who employ force are responsible for any excessive cruelty, and are not justified in using it after resistance is suppressed, or the ordinary courts reopened. The so-called courts-martial are not properly courts at all, but simply committees for carrying out the measures adopted on the responsibility of the officials; and the proclamation is merely a public notice that such measures will be employed.
It is clear from Fitzjames's speeches that he felt much sympathy for the persons who had been placed in a position of singular difficulty, and found it hard to draw the line between energetic defence of order and over-severity to the rebels. He explains very carefully that he is not concerned with the moral question, and contends only that the legal name for their conduct is murder. In fact, he paid compliments to the accused which would be very inappropriate to the class of murderers in the ordinary sense of the term. The counsel on the opposite side naturally took advantage of this, and described his remarks as a 'ghastly show of compliment.' It must be awkward to say that a man is legally a murderer when you evidently mean only he has lost his head and gone too far under exceedingly trying circumstances. The Jamaica Committee did not admit of any such distinction. To them Governor Eyre appeared to be morally as well as legally guilty of murder. Fitzjames appears to have felt that the attempt to proceed further would look like a vindictive persecution; and he ceased after this to take part in the case. He congratulated himself upon this withdrawal when further proceedings (in 1868) led to abortive results.
One result was a coolness between my brother and J. S. Mill, who was displeased by his want of sufficient zeal in the matter. They had been on friendly terms, and I remember once visiting Mill at Blackheath in my brother's company. There was never, I think, any cordial relation between them. Fitzjames was a disciple of Mill in philosophical matters, and in some ways even, as I hold, pushed Mill's views to excess. He complains more than once at this time that Carlyle was unjust to the Utilitarian views, which, in his opinion, represented the true line of advance. But Carlyle was far more agreeable to him personally. The reason was, I take it, that Carlyle had what Mill had not, an unusual allowance of the quality described as 'human nature.' Mill undoubtedly was a man of even feminine tenderness in his way; but in political and moral matters he represented the tendency to be content with the abstractions of the unpractical man. He seemed to Fitzjames at least to dwell in a region where the great passions and forces which really stir mankind are neglected or treated as mere accidental disturbances of the right theory. 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. This will appear more clearly hereafter.