V. READING FOR THE BAR

My brother had definitely to make the choice of a profession upon which he had been reflecting during his college career. He set about the task in an eminently characteristic way. When he had failed in the last scholarship examination, he sat down deliberately and wrote out a careful discussion of the whole question. The result is before me in a little manuscript book, which Fitzjames himself re-read and annotated in 1865, 1872, and 1880. He read it once more in 1893. Both text and commentary are significant. He is anxious above all things to give plain, tangible reasons for his conduct. He would have considered it disgraceful to choose from mere impulse or from any such considerations as would fall under the damnatory epithet 'sentimental.' He therefore begins in the most prosaic fashion by an attempt to estimate the pecuniary and social advantages of the different courses open to him. These are in reality the Church and the Bar; although, by way of exhibiting the openness of his mind, he adds a more perfunctory discussion of the merits of the medical profession. Upon this his uncle, Henry Venn, had made a sufficient comment. 'There is a providential obstacle,' he said, 'to your becoming a doctor—you have not humbug enough.' The argument from these practical considerations leads to no conclusion. The main substance of the discussion is therefore a consideration of the qualities requisite for the efficient discharge of clerical or legal duties. A statement of these qualities, he says, will form the major of his syllogism. The minor will then be, 'I possess or do not possess them'; and the conclusion will follow, 'I ought to be a clergyman or a lawyer.' Although it is easy to see that the 'major' is really constructed with a view to its applicability to his own character, he does not explicitly give any opinions about himself. He digested the results of the general discussions into thirteen questions which are not stated, though it is clear that they must have amounted to asking, Have I the desirable aptitudes? He has, however, elaborately recorded his answers, 'Yes' or 'No,' and noted the precise time and place of answering and the length of time devoted to considering each. He began the inquiry on June 16, 1850. On September 23 he proceeds to answer the questions which he, acting (as he notes) as judge, had left to himself as jury. Questions 1 and 2 can be answered 'immediately'; but No. 3 takes two hours. The 8th, 9th, and 10th were considered together, and are estimated to have taken an hour and a half, between 7 and 11.30 p.m.; though, as he was in an omnibus for part of the time and there fell asleep, this must be conjectural. The 13th question could not be answered at all; but was luckily not important. He had answered the 11th and 12th during a railway journey to Paris on October 2, and had thereupon made up his mind.

One peculiarity of this performance is the cramped and tortuous mode of expressing himself. His thoughts are entangled, and are oddly crossed by phrases clearly showing the influence of Maurice and Coleridge, and, above all, of his father. 'Maurice's books,' he notes in 1865, 'did their utmost to make me squint intellectually about this time, but I never learnt the trick.' A very different writer of whom he read a good deal at college was Baxter, introduced to him, I guess, by one of his father's essays. 'What a little prig I was when I made all these antitheses!' he says in 1865. 'I learnt it of my daddy' is the comment of 1880. 'Was any other human being,' he asks in 1880, 'ever constructed with such a clumsy, elaborate set of principles, setting his feelings going as if they were clockwork?' This is the comment upon a passage where he has twisted his thoughts into a cumbrous and perfectly needless syllogism. He makes a similar comment on another passage in 1865, but 'I think,' he says in 1880, 'that I was a heavy old man thirty years ago. Fifteen years ago I was at the height of my strength. I am beginning to feel now a little more tolerant towards the boy who wrote this than the man who criticised it in 1865; but he was quite right.' The critic of 1865, I may note, is specially hard upon the lad of 1850 for his ignorance of sound utilitarian authorities. He writes against an allusion to Hobbes, 'Ignorant blasphemy of the greatest of English philosophers!' The lad has misstated an argument from ignorance of Bentham and Austin. 'I had looked at Bentham at the period (says 1865), but felt a holy horror of him.' Harcourt, it is added, 'used to chaff me about him.' 1880 admits that '1865, though a fine fellow, was rather too hot in his Benthamism; 1880 takes it easier, and considers that 1850 was fairly right, and that his language if not pharisaically accurate, was plain enough for common-sense purposes.' In fact, both critics admit, and I fully agree with them, that under all the crabbed phraseology there was a very large substratum of good sense and sound judgment of men, to which I add of high principle. Among the special qualifications of a lawyer, the desire for justice takes a prominent place in his argument.

Looking at the whole document from the vantage-ground of later knowledge, the real, though unconscious, purpose seems to be pretty evident. Fitzjames had felt a repugnance to the clerical career, and is trying to convince himself that he has reasonable grounds for a feeling which his father would be slow to approve. There is not the least trace of any objection upon grounds of dissent from the Articles; though he speaks of responsibility imposed by the solemn profession required upon ordination. His real reason is explained in a long comparison between the 'simple-minded' or 'sympathetic' and the 'casuistical' man. They may both be good men; but one of them possesses what the other does not, a power of at once placing himself in close relations to others, and uttering his own thoughts eloquently and effectively without being troubled by reserves and perplexed considerations of the precise meaning of words. He thinks that every clergyman ought to be ready to undertake the 'cure of souls,' and to be a capable spiritual guide. He has no right to take up the profession merely with a view to intellectual researches. In fact, he felt that he was without the qualifications which make a man a popular preacher, if the word may be used without an offensive connotation. He could argue vigorously, but was not good at appealing to the feelings, or offering spiritual comfort, or attracting the sympathies of the poor and ignorant. Substantially I think that he was perfectly right not only in the conclusion but in the grounds upon which it was based. He was a lawyer by nature, and would have been a most awkward and cross-grained piece of timber to convert into a priest. He points himself to such cases as Swift, Warburton, and Sydney Smith to show the disadvantage of a secular man in a priest's vestments.

When his mind was made up, Fitzjames communicated his decision to his father. The dangerous illness of 1850 had thrown his father into a nervous condition which made him unable to read the quaint treatise I have described. He appears, however, to have argued that a man might fairly take orders with a view to literary work in the line of his profession. Fitzjames yielded this ground but still held to the main point. His father, though troubled, made no serious objection, and only asked him to reconsider his decision and to consult Henry Venn. Henry Venn wrote a letter, some extracts from which are appended to the volume with characteristic comments. Venn was too sensible a man not to see that Fitzjames had practically made up his mind. 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. 'If anyone should ever care to know what sort of man I was then,' says Fitzjames in 1887, 'and, mutatis mutandis, am still, that paper ought to be embodied by reference in their recollections.'

Fitzjames took a lodging in London, for a year or so, and then joined my father at Westbourne Terrace. He entered at the Inner Temple, and was duly called to the bar on January 26, 1854. His legal education, he says, was very bad. He was for a time in the chambers of Mr. (now Lord) Field, then the leading junior on the Midland Circuit, but it was on the distinct understanding that he was to receive no direct instruction from his tutor. He was also in the chambers of a conveyancer. I learnt, he says, 'a certain amount of conveyancing, but in a most mechanical, laborious, wooden kind of way, which had no advantage at all, except that it gave me some familiarity with deeds and abstracts. My tutor was a pure conveyancer; so I saw nothing of equity drafting. I worked very hard with him, however, but I was incapable of being taught and he of teaching.' The year 1852 was memorable for the Act which altered the old system of special pleading. 'The new system was by no means a bad one.... I never learnt it, at least not properly, and while I ought to have been learning, I was still under the spell of an unpractical frame of mind which inclined me to generalities and vagueness, and had in it a vast deal of laziness. When I look back on these times, I feel as if I had been only half awake or had not come to my full growth, though I was just under twenty-five when I was called. How I ever came to be a moderately successful advocate, still more to be a rather distinguished judge, is to me a mystery. I managed, however, to get used to legal ways of looking at things and to the form and method of legal arguments.' He was at the same time going through an apprenticeship to journalism, of which it will be more convenient to speak in the next chapter. It is enough to say for the present that his first efforts were awkward and unsuccessful. After he was called to the bar, he read for the LL.B. examination of the University of London; and not only obtained the degree but enjoyed his only University success by winning a scholarship. One of his competitors was the present Sir Mountstuart Grant Duff. This performance is [connected] with some very important passages in his development.

He had made some intimate friendships beyond the apostolic circle, of whom Grant Duff was one of the first. They had already met at the rooms of Charles Henry Pearson, one of my brother's King's College friends.[60] Grant Duff was for a long time in very close intimacy, and the friendship lasted for their lives, uninterrupted by political differences. They were fellow-pupils in Field's chambers, were on circuit together for a short time till Grant Duff gave up the profession; and their marriages only brought new members into the alliance. I must confine myself to saying that my brother's frequent allusions prove that he fully appreciated the value of this friendship. Another equally intimate friendship of the same date was with Henry John Stephen Smith.[61] Smith was a godson of my uncle, Henry John Stephen. He and his sister had been from very early years on terms of especial intimacy with our cousins the Diceys. Where and when his friendship with my brother began I do not precisely know, but it was already very close. As in some later cases, of which I shall have to speak, the friendship seemed to indicate that Fitzjames was attracted by complementary rather than similar qualities in the men to whom he was most attached. No two men of ability could be much less like each other. Smith's talents were apparently equally adapted for fine classical scholarship and for the most abstract mathematical investigations. If it was not exactly by the toss of a shilling it was by an almost fortuitous combination of circumstances that he was decided to take to mathematics, and in that field won a European reputation. He soared, however, so far beyond ordinary ken that even Europe must be taken to mean a small set of competent judges who might almost be reckoned upon one's fingers. But devoted as he was to these abstruse studies, Smith might also be regarded as a typical example of the finest qualities of Oxford society. His mathematical powers were recognised by his election to the Savilian professorship in 1860, and the recognition of his other abilities was sufficiently shown by the attempt to elect him member for the University in 1878. He would indeed have been elected had the choice been confined to the residents at Oxford. Smith could discourse upon nothing without showing his powers, and he would have been a singular instance in the House of Commons of a man respected at once for scholarship and for profound scientific knowledge, and yet a chosen mouthpiece of the political sentiments of the most cultivated constituency in the country. The recognition of his genius was no doubt due in great part to the singular urbanity which made him the pride and delight of all Oxford common rooms. With the gentlest of manners and a refined and delicate sense of humour, he had powers of launching epigrams the subtle flavour of which necessarily disappears when detached from their context. But it was his peculiar charm that he never used his powers to inflict pain. His hearers felt that he could have pierced the thickest hide or laid bare the ignorance of the most pretentious learning. But they could not regret a self-restraint which so evidently proceeded from abounding kindness of heart. Smith's good nature led him to lend too easy an ear to applications for the employment of his abilities upon tasks to which his inferiors would have been competent. I do not know whether it was to diffidence and reserve or to the gentleness which shrinks from dispelling illusions that another peculiarity is to be attributed. On religious matters, says his biographer, he was 'absolutely reticent'; he would discuss such topics indeed, but without ever mentioning his own faith.

I mention this because it is relevant to his relations with my brother. Fitzjames was always in the habit of expressing his own convictions in the most downright and uncompromising fashion. He loved nothing better than an argument upon first principles. His intimacy with Smith was confirmed by many long rambles together; and for many years he made a practice of spending a night at Smith's house at Oxford on his way to and from the Midland Circuit. There, as he says, 'we used to sit up talking ethics and religion till 2 or 3 a.m.' I could not however, if I wished, throw any light upon Smith's views; Smith, he says in 1862, is a most delightful companion when he has got over his 'reserve'; and a year later he says that Smith is 'nearly the only man who cordially and fully sympathises with my pet views.' What were the pet views is more than I can precisely say. I infer, however, from a phrase or two that Smith's conversation was probably sceptical in the proper sense; that is, that he discussed first principles as open questions, and suggested logical puzzles. But my brother also admits that he never came to know what was Smith's personal position. He always talked 'in the abstract' or 'in the historical vein,' and 'seemed to have fewer personal plans, wishes and objects of any kind than almost any man I have ever known.'

These talks at any rate, with distinguished Oxford men, must have helped to widen my brother's intellectual horizon. They had looked at the problems of the day from a point of view to which the apostles seem to have been comparatively blind. Another influence had a more obvious result. Fitzjames had to read Stephen's commentaries and Bentham[62] for the London scholarship. Bentham now ceased to be an object of holy horror. My brother, in fact, became before long what he always remained, a thorough Benthamite with certain modifications. It was less a case of influence, however, than of 'elective affinity' of intellect. The account of Fitzjames's experience at Cambridge recalls memories of the earlier group who discussed utilitarianism under the leadership of Charles Austin and looked up to James Mill as their leader. The hatred for 'sentimentalism' and 'vague generalities' and the indifference to mere poetical and literary interests were common to both. The strong points of Benthamism may, I think, be summed up in two words. It meant reverence for facts. Knowledge was to be sought not by logical jugglery but by scrupulous observation and systematic appeals to experience. Whether in grasping at solid elements of knowledge Benthamists let drop elements of equal value, though of less easy apprehension, is not to my purpose. But to a man whose predominant faculty was strong common sense, who was absolutely resolved that whatever paths he took should lead to realities, and traverse solid ground instead of following some will-o'-the-wisp through metaphysical quagmires amidst the delusive mists of a lawless imagination, there was an obvious fascination in the Bentham mode of thought. It must be added, too, that at this time J. S. Mill, the inheritor of Bentham's influences, was at the height of his great reputation. The young men who graduated in 1850 and the following ten years found their philosophical teaching in Mill's 'Logic,' and only a few daring heretics were beginning to pick holes in his system. Fitzjames certainly became a disciple and before long an advocate of these principles. I find one or two other indications of disturbing studies. He says in a letter that Greg's 'Creed of Christendom' (published in 1851) was the first book of the kind which he read without the sense that he was trespassing on forbidden ground. He told me that he had once studied Lardner's famous 'Credibility of the Gospel History,' to which Greg may not improbably have sent him. The impression made upon him was (though the phrase was used long afterwards) that Lardner's case 'had not a leg to stand upon.' From the Benthamite point of view, the argument for Christianity must be simply the historical evidence. Paley, for whom Fitzjames had always a great respect, put the argument most skilfully in this shape. But if the facts are insufficient to a lawyer's eye, what is to happen? For reasons which will partly appear, Fitzjames did not at present draw the conclusions which to many seem obvious. It took him, in fact, years to develope distinctly new conclusions. But from this time his philosophical position was substantially that of Bentham, Mill, and the empiricists, while the superstructure of belief was a modified evangelicism.

My father's liberality of sentiment and the sceptical tendencies which lay, in spite of himself, in his intellectual tendencies, had indeed removed a good deal of the true evangelical dogmatism. Fitzjames for a time, as I have intimated, seems to have sought for a guide in Maurice. He had been attracted when at King's College by Maurice's personal qualities, and when, in 1853, Maurice had to leave King's College on account of his views about eternal punishment, Fitzjames took a leading part in getting up a testimonial from the old pupils of his teacher. When he became a law student he naturally frequented Maurice's sermons at Lincoln's Inn. Nothing could be more impressive than the manner of the preacher. His voice often trembled with emotion, and he spoke as one who had a solemn message of vast importance to mankind. But what was the message which could reach a hard-headed young 'lawyer by nature' with a turn for Benthamism? Fitzjames gives a kind of general form of Maurice's sermons. First would come an account of some dogma as understood by the vulgar. Tom Paine could not put it more pithily or expressively. Then his hearers were invited to look at the plain words of Scripture. Do they not mean this or that, he would ask, which is quite different to what they had been made to mean? My answer would have been, says Fitzjames, that his questions were 'mere confused hints,' which required all kinds of answers, but mostly the answer 'No, not at all.' Then, however, came Maurice's own answers to them. About this time his hearer used to become drowsy, with 'an indistinct consciousness of a pathetic quavering set of entreaties to believe what, when it was intelligible, was quite unsatisfactory.' Long afterwards he says somewhere that it was 'like watching the struggles of a drowning creed.' Fitzjames, however, fancied for a time that he was more or less of a Mauricean.