CHAPTER III

THE BAR AND JOURNALISM

I. INTRODUCTORY

I have traced at some length the early development of my brother's mind and character. Henceforward I shall have to describe rather the manifestation than the modification of his qualities. He had reached full maturity, although he had still much to learn in the art of turning his abilities to account. His 'indolence' and 'self-indulgence,' if they had ever existed, had disappeared completely and for ever. His life henceforward was of the most strenuous. He had become a strong man—strong with that peculiar combination of mental and moral force which reveals itself in masculine common sense. His friends not unfrequently compared him to Dr. Johnson, and, much as the two men differed in some ways, there was a real ground for the comparison. Fitzjames might be called pre-eminently a 'moralist,' in the old-fashioned sense in which that term is applied to Johnson. He was profoundly interested, that is, in the great problems of life and conduct. His views were, in this sense at least, original—that they were the fruit of his own experience, and of independent reflection. Most of us are so much the product of our surroundings that we accept without a question the ordinary formulæ which we yet hold so lightly that the principles which nominally govern serve only to excuse our spontaneous instincts. The stronger nature comes into collision with the world, disputes even the most current commonplaces, and so becomes conscious of its own idiosyncrasies, and accepts only what is actually forced upon it by stress of facts and hard logic. The process gives to the doctrines which, with others, represent nothing but phrases, something of the freshness and vividness of personal discoveries. Probably ninety-nine men in a hundred assume without conscious inconsistency the validity both of the moral code propounded in the Sermon on the Mount, and of the code which regulates the actual struggle for life. They profess to be at once gentlemen and Christians, and when the two codes come into conflict, take the one which happens to sanction their wishes. They do not even observe that there is any conflict. Fitzjames could not take things so lightly. Even in his infancy he had argued the first principles of ethics, and worked out his conclusions by conflicts with schoolboy bullies. It is intelligible, therefore, that, as Mr. Davies reports, the Sermon on the Mount should be his great difficulty in accepting Christianity. Its spirit might be, in a sense, beautiful; but it would not fit the facts of life. So, he observes, in his autobiographical fragment, that one of his difficulties was his want of sympathy for the kind of personal enthusiasm with which his father would speak of Jesus Christ. He tried hard to cultivate the same feelings, but could not do so with perfect sincerity.

A man with such distinct and vivid convictions in the place of mere conventional formulæ was naturally minded to utter them. He was constantly provoked by the popular acceptance of what appeared to him shallow and insincere theories, and desired to expose the prevailing errors. But the 'little preacher' of three years old had discovered at one and twenty that the pulpit of the ordinary kind was not congenial to him. His force of mind did not facilitate a quick and instinctive appreciation of other people's sentiments. When he came into contact with a man whose impressions of the world were opposed to his own, he was inclined to abandon even the attempt to account for the phenomenon. A man incapable of seeing things in the proper light was hardly worth considering at all. Fitzjames was therefore not sympathetic in the sense of having an imagination ready to place him at other men's point of view. In another sense his sympathies were exceedingly powerful. No man had stronger or more lasting affections. Once attached to a man, he believed in him with extraordinary tenacity and would defend him uncompromisingly through thick and thin. If, like Johnson, he was a little too contemptuous of the sufferings of the over-sensitive, and put them down to mere affectation or feeblemindedness, he could sympathise most strongly with any of the serious sorrows and anxieties of those whom he loved, and was easily roused to stern indignation where he saw sorrow caused by injustice. I shall mention here one instance, to which, for obvious reasons, I can only refer obscurely; though it occupied him at intervals during many years. Shortly after being called to the bar he had agreed to take the place of a friend as trustee for a lady, to whom he was then personally unknown. A year or two later he discovered that she and her husband were the objects of a strange persecution from a man in a respectable position who conceived himself to have a certain hold over them. Fitzjames's first action was to write a letter to the persecutor expressing in the most forcible English the opinion that the gentleman's proper position was not among the respectable but at one of her Majesty's penal settlements. His opinion was carefully justified by a legal statement of the facts upon which it rested, and the effect was like the discharge of the broadside of an old ship of the line upon a hostile frigate. The persecutor was silenced at once and for life. Fitzjames, meanwhile, found that the money affairs of the pair whose champion he had become were deeply embarrassed. He took measures, which were ultimately successful, for extricating them from their difficulties; and until the lady's death, which took place only a year or two before his own, was her unwearied counsellor and protector in many subsequent difficulties. Though I can give no details, I may add that he was repaid by the warm gratitude of the persons concerned, and certainly never grudged the thought and labour which he had bestowed upon the case.

Fitzjames having made up his mind that he was a 'lawyer by nature,' had become a lawyer by profession. Yet the circumstances of his career, as well as his own disposition, prevented him from being absorbed in professional duties. For the fifteen years which succeeded his call to the bar he was in fact following two professions; he was at once a barrister and a very active journalist. This causes some difficulty to his biographer. My account of his literary career will have to occupy the foreground, partly because the literary story bears most directly and clearly the impress of his character, and partly because, as will be seen, it was more continuous. I must, however, warn my readers against a possible illusion of perspective. To Fitzjames himself the legal career always represented the substantive, and the literary career the adjective. Circumstances made journalism highly convenient, but his literary ambition was always to be auxiliary to his legal ambition. It would, of course, have been injurious to his prospects at the bar had it been supposed that the case was inverted; and as a matter of fact his eyes were always turned to the summit of that long hill of difficulty which has to be painfully climbed by every barrister not helped by special interest or good fortune. This much must be clearly understood, but I must also notice two qualifications. In the first place, though he became a journalist for convenience, he was in some sense too a journalist by nature. He found, that is, in the press a channel for a great many of the reflections which were constantly filling his mind and demanding some outlet. He wrote for money, and without the least affectation of indifference to money; but the occupation enabled him also to gratify a spontaneous and powerful impulse. And, in the next place, professional success at the bar was in his mind always itself connected with certain literary projects. Almost from the first he was revolving schemes for a great book, or rather for a variety of books. The precise scheme changed from time to time; but the subject of these books is always to be somewhere in the province which is more or less common to law and ethics. Sometimes he is inclined to the more purely technical side, but always with some reference to the moral basis of law; and sometimes he leans more to philosophical and theological problems, but always with some reference to his professional experience and to legal applications. So, for example, he expresses a desire (in a letter written, alas! after the power of executing such schemes had disappeared) to write upon the theory of evidence; but he points out that the same principles which underlie the English laws of evidence are also applicable to innumerable questions belonging to religious, philosophical, and scientific inquiries. Now the position of a judge or an eminent lawyer appeared to him from the first to be desirable for other reasons indeed, but also for the reason that it would enable him to gain experience and to speak with authority. At moments he had thoughts of abandoning law for literature; although the thoughts disappeared as soon as his professional prospects became brighter. His ideal was always such a position as would enable him to make an impression upon the opinions of his countrymen in that region where legal and ethical speculation are both at home.

II. FIRST YEARS AT THE BAR

I will begin by some general remarks upon his legal career, which will thus be understood as underlying his literary career. Fitzjames was called to the bar of the Inner Temple on January 26, 1854. He had his first brief soon afterwards at the Central Criminal Court, where twenty-five years later he also made his first appearance as a judge. In the same year he joined the Midland Circuit. He had no legal connections upon that or any other circuit. His choice was determined by the advice of Kenneth Macaulay, then leader of the Midland Circuit. He afterwards referred to this as one of the few cases in which good advice had really been of some use. In a letter written in July 1855 he observes that the Midland is the nearest approach to the old circuits as they were before the days of railways. It was so far from London that the barristers had to go their rounds regularly between the different towns instead of coming down for the day. He describes the party who were thus brought together twice a year, gossiping and arguing all day, with plenty of squabbling and of 'rough joking and noisy high spirits' among the idler, that is, much the larger part. He admits that the routine is rather wearisome: the same judgments and speeches seem to repeat themselves 'like dreams in a fever,' and 'droves of wretched over-driven heavy people come up from the prison into a kind of churchwardens' pew,' when the same story is repeated over and over again. And yet he is profoundly interested. Matters turn up which 'seem to me infinitely more interesting than the most interesting play or novel,' and you get strange glimpses of the ways of thinking and living among classes otherwise unknown to you. These criminal courts, he says in another letter, are a 'never-ending source of interest and picturesqueness for me. The little kind of meat-safe door through which the prisoners are called up, and the attendant demon of a gaoler who summons them up from the vasty deep and sends them back again to the vasty deep for terms of from one week to six years, have a sort of mysterious attraction.'

Mr. Franklin Lushington, who was my brother's contemporary on the circuit and ever afterwards an intimate friend, has kindly given me his impressions of this period. It would have been difficult, he says, to find a circuit 'on which the first steps of the path that opens on general eminence in the profession were slower to climb than on the Midland.' It was a small circuit, 'attended by some seventy or eighty barristers and divided into two or three independent and incompatible sets of Quarter Sessions, among which after a year or so of tentative experience it was necessary to choose one set and stand by it. Fitzjames and I both chose the round of the Lincolnshire, Nottinghamshire, and Derbyshire sessions; which involved a good deal of travelling and knocking about in some out-of-the-way country districts, where the sessions bar is necessarily thrown into circumstances of great intimacy. Even when a sessions or assize reputation was gained, it was and remained intensely local. The intricate points relative to settlements and poor-law administration, which had provided numerous appeals to the higher courts in a previous generation, had dwindled gradually to nothing. Even the most remarkable success, slowly and painfully won in one county, might easily fail to produce an effect in the next, or to give any occasion for passing through the thickset hedge which parts provincial from metropolitan notoriety. The most popular and admired advocate in the Lincolnshire courts for many years was our dear friend F. Flowers, afterwards a police magistrate, one of the wittiest, most ingenious, and most eloquent of the bar. Though year after year he held every Lincolnshire jury in the hollow of his hand, and frequently rose to a strain of powerful and passionate oratory which carried away himself and his hearers—not Lincolnshire folk only—in irresistible sympathy with his cause, Flowers remained to his last day on circuit utterly unknown and untried in the adjacent shires of Derby and Nottingham.'

A circuit bar, adds Mr. Lushington, 'may be roughly divided into three classes: those who are determined to make themselves heard; those who wish to be heard if God calls; and those who without objecting to be heard wish to have their pastime whether they are heard or not. Fitzjames was in the first category, and from the first did his utmost to succeed, always in the most legitimate way.' No attorney, looking at the rows of wigs in the back benches, could fail to recognise in him a man who would give his whole mind to the task before him. 'It was natural to him to look the industrious apprentice that he really was; always craving for work of all kinds and ready at a moment's notice to turn from one task to another. I used to notice him at one moment busy writing an article in complete abstraction and at the next devouring at full speed the contents of a brief just put into his hand, and ready directly to argue the case as if it had been in his hand all day.'