Fitzjames not long afterwards expressed his own judgment of the society of which he had become a member. The English bar, he says,[63] 'is exactly like a great public school, the boys of which have grown older and have exchanged boyish for manly objects. There is just the same rough familiarity, the same general ardour of character, the same kind of unwritten code of morals and manners, the same kind of public opinion expressed in exactly the same blunt, unmistakable manner.' It would astonish outsiders if they could hear the remarks sometimes addressed by the British barrister to his learned brother—especially on circuit. The bar, he concludes, 'are a robust, hard-headed, and rather hard-handed set of men, with an imperious, audacious, combative turn of mind,' sometimes, though rarely, capable of becoming eloquent. Their learning is 'multifarious, ill-digested and ill-arranged, but collected with wonderful patience and labour, with a close exactness and severity of logic, unequalled anywhere else, and with a most sagacious adaptation to the practical business of life.'
Fitzjames's position in this bigger public school had at any rate one advantage over his old Etonian days. There was no general prejudice against him to be encountered; and in the intellectual 'rough and tumble' which replaced the old school contests his force of mind was respected by everyone and very warmly appreciated by a chosen few. Among his closest intimates were Mr. Lushington and his old schoolfellow Mr. Arthur Coleridge, who became Clerk of Assize upon the circuit. At starting he had also the society of his friend Grant Duff. They walked together in the summer of 1855, and visited the Trappist Monastery in Charnwood Forest. There they talked to a shaven monk in his 'dreary white flannel dress,' bound with a black strap. They moralised as they returned, and Fitzjames thought on the whole that his own life was wholesomer than the monastic. He hopes, however, that the monk and his companions may 'come right,' as 'no doubt they will if they are honest and true.' 'I suppose one may say that God is in convents and churches as well as in law courts or chambers—though not to my eyes so palpably.'
Sir M. Grant Duff left the circuit after a year or two; but Fitzjames found a few other congenial companions with whom he could occasionally walk and often argue to his heart's content. Among his best friends was Kenneth Macaulay, who became a leader on the circuit, and who did his best to introduce Fitzjames to practice. Mr. Arthur Coleridge, too, was able to suggest to the judges that Fitzjames should be appointed to defend prisoners not provided with counsel. This led by degrees to his becoming well known in the Crown Court, although civil business was slow in presenting itself. Several of the judges took early notice of him. In 1856 he has some intercourse with Lord Campbell, then Chief Justice, and with Chief Baron Pollock, both of them friends of his father. He was 'overpowered with admiration' at Campbell's appearance. Campbell was 'thickset as a navvy, as hard as nails,' still full of vigour at the age of seventy-six, about the best judge on the bench now, and looking fit for ten or twelve years' more of work.[64] Pollock was a fine lively old man, thin as a threadpaper, straight as a ramrod, and full of indomitable vivacity. The judges, however, who formed the highest opinion of him and gave him the most encouragement were Lord Bramwell and Willes.
In 1856 he observes that he was about to take a walk with Alfred Wills of the 'High Alps.' This was the present Mr. Justice Wills; who has also been kind enough to give me some recollections which are to the purpose in this place. Wills was called to the bar in 1851 and joined the Midland Circuit, but attended a different set of quarter sessions. He saw a good deal of Fitzjames, however, at the assizes; and though not especially intimate, they always maintained very friendly relations. The impression made upon Wills in these early years was that Fitzjames was a solitary and rather unsocial person. He was divided from his fellows, as he had been divided from his companions at school and college, by his absorption in the speculations which interested him so profoundly. 'He was much more learned, much better read, and had a much more massive mind than most of us, and our ways and talks must have seemed petty and trivial to him.' Though there were 'some well-read men and good scholars among us, even they had little taste for the ponderous reading in which Fitzjames delighted.' Wills remembers his bringing Hobbes' 'Leviathan' with him, and recreating himself with studying it after his day's work. To such studies I shall have to refer presently, and I will only say, parenthetically, that if Mr. Justice Wills would read Hobbes, he would find, though he tells me that he dislikes metaphysics, that the old philosopher is not half so repulsive as he looks. Still, a constant absorption in these solid works no doubt gave to his associates the impression that Fitzjames lived in a different world from theirs. He generally took his walks by himself, Coleridge being the most frequent interrupter of his solitude. He would be met pounding along steadily, carrying, often twirling, a 'very big stick,' which now and then came down with a blow—upon the knuckles, I take it, of some imaginary blockhead on the other side—muttering to himself, 'immersed in thought and with a fierce expression of concentrated study.' He did not often come to mess, and when he did found some things of which he did not approve. Barristers, it appears, are still capable of indulging in such tastes as were once gratified by the game of 'High Jinks,' celebrated in 'Guy Mannering.' The Circuit Court was the scene of a good deal of buffoonery. It was customary to appoint a 'crier'; and Fitzjames, 'to his infinite disgust, was elected on account of his powerful voice. He stood it once or twice, but at last broke out in a real fury, and declared he would never come to the Circuit Court again, calling it by very strong names. If he had been a less powerful man I am sure that there would have been a fight; but no one cared to tackle that stalwart frame, and I am not sure that the assailant would have come out of the fray alive if he had.' The crisis of this warfare appears to have happened in 1864, when Yorkshire was added to the Midland Circuit, and an infusion of barristers from the Northern Circuit consequently took place. It seems that the manners and customs of the northerners were decidedly less civilised than those of their brethren. A hard fight had to be fought before they could be raised to the desired level. In 1867 I find that Fitzjames proposed the abolition of the Circuit Court. He was defeated by twenty votes to fifteen; and marvels at the queer bit of conservatism cropping up in an unexpected place. In spite of these encounters, Fitzjames not only formed some very warm friendships on circuit, but enjoyed many of the social meetings, and often recurred to them in later years. He only despised tomfoolery more emphatically than his neighbours. Nobody, indeed, could be a more inconvenient presence where breaches of decency or good manners were to be apprehended. I vividly remember an occasion upon which he was one of a little party of young men on a walking tour. A letter read out by one of them had the phrase, 'What a pity about Mrs. A.!' Someone suggested a conjectural explanation not favourable to Mrs. A.'s character. He immediately came in for a stern denunciation from Fitzjames which reduced us all to awestruck silence, and, I hope, gave the speaker an unforgetable lesson as to the duty of not speaking lightly in matters affecting female reputation. He collapsed; and I do not recollect that he ventured any comment upon a letter of the next morning which proved his conjecture to be correct. The principle was the same.
These characteristics, as I gather both from Mr. Justice Wills and from Mr. Lushington, caused Fitzjames to be the object rather of respect than of general popularity. His friends could not fail to recognise the depth of his real kindness of heart. Mr. Justice Wills refers to one little incident of which my brother often spoke. Fitzjames visited him at the 'Eagle's Nest,' in 1862, and there found him engaged in nursing Auguste Balmat, the famous guide, who was dying of typhoid fever. The natives were alarmed, and the whole labour of nursing fell upon Mr. and Mrs. Wills. Fitzjames, on his arrival, relieved them so far as he could, and enabled them to get some nights' sleep. I remember his description of himself, sitting up by the dying man, with a volume of 'Pickwick' and a vessel of holy water, and primed with some pious sentences to be repeated if the last agony should come on. It was a piece of grim tragedy with a touch of the grotesque which impressed him greatly. 'I never knew anyone,' says Mr. Justice Wills, 'to whom I should have gone, if I wanted help, with more certainty of getting it.' When Fitzjames was on the bench, he adds, and he had been himself disappointed of reaching the same position under annoying circumstances, he had to appear in a patent case before his friend. Fitzjames came down to look at a model, and Wills said, 'Your Lordship will see,' &c. 'He got hold of the hand next his own, gave me a squeeze which I did not forget in a hurry, and whispered, "If you ever call me 'my lordship' again, I shall say something!"' That hand-grip, indeed, as Wills remarks, was eminently characteristic. It was like the squeeze of a vice, and often conveyed the intimation of a feeling which shrank from verbal expression.
It is plain enough that a man of such character would not find some difficulties smoothed for him. He could not easily learn the lesson of 'suffering fools gladly.' He formed pretty strong views about a man and could express them frankly. The kind of person whom Carlyle called a windbag, and to whom he applied equally vigorous epithets, was especially obnoxious to him, however dexterous might be such a man's manipulation of difficult arguments. His talent, too, scarcely lent itself to the art of indirect intimations of his opinions. He remarks himself, in one of his letters, that he is about as clever at giving hints as the elder Osborne in 'Vanity Fair'; of whom Thackeray says that he would give what he called a 'hint' to a footman to leave his service by kicking the man downstairs. And, therefore, I suspect that when Fitzjames considered someone—even a possible client—to be a fool or a humbug, his views might be less concealed than prudence would have dictated. 'When once he had an opportunity of showing his capacities,' says Mr. Lushington, 'the most critical solicitor could not fail to be satisfied of his vigour and perseverance; his quick comprehension of, and his close attention to detail; and his gift in speaking of clear common-sense and forcible expression, free from wearisome redundancy or the suggestion of an irony that might strike above the heads of the jury. He gained the confidence of clients of all sorts—some of curious, impulsive, and not over-strict character, who might, perhaps, have landed a weaker or less rigidly high-principled advocate in serious blunders; and I do not think that he ever lost a client whom he had once gained.' But the first step was not easy. His solitary ways, his indifference to the lighter pursuits of his companions, and his frequent absorption in other studies, made him slow to form connections and prevented him from acquiring early, if he ever fully acquired, the practical instinct which qualifies a man for the ordinary walk of law courts. When, says Mr. Justice Wills, 'he got you by yourself in a corner—with no opportunity of dancing round him—in a single combat of stroke for stroke, real business, conditions defined and mastered, he was a most formidable antagonist, mercilessly logical, severely powerful, with the hand of a giant.' But he was, says the same critic, rather too logical for the common tricks of the trade, which are learnt by a long and persistent handling of ordinary business. He did not understand what would 'go down,' and what was of 'such a character that people would drive a coach and six through precedents and everything else in order to get rid of it.' He was irritated by an appeal to practical consequences from what he considered to be established principles. Then, too, his massive intellect made him wanting in pliability. 'He could not change front in presence of the enemy'; and rather despised the adaptations by which clever lawyers succeed in introducing new law under a pretence of applying old precedents. As I have already said, he was disgusted with the mere technicalities of the law, and the conversion of what ought to be a logical apparatus for the discovery of truth into an artificial system of elaborate and superfluous formalities. His great ambition was (in his favourite expression) to 'boil down' the law into a few broad common-sense principles. He was, therefore, not well qualified for some branches of legal practice, and inclined to regard skill of the technical kind with suspicion, if not with actual dislike. Upon this, however, I shall have to dwell hereafter.
Meanwhile, he was deeply interested in the criminal cases, which were constantly presenting ethical problems, and affording strange glimpses into the dark side of human nature. Such crimes showed the crude, brutal passions, which lie beneath the decent surface of modern society, and are fascinating to the student of human nature. He often speaks of the strangely romantic interest of the incidents brought to light in the 'State Trials'; and in these early days he studied some of the famous cases, such as those of Palmer and Dove, with a professional as well as a literary interest. In later life he avoided such stories; but at this period he occasionally made a text of them for newspaper articles, and was, perhaps, tempted to adopt theories of the case too rapidly. This was thought to be the case in regard to one Bacon, who was tried in Lincoln in the summer of 1857. The case was one to which Fitzjames certainly attached great importance, and I will briefly mention it before passing to his literary career.
Bacon and his wife were tried at London in the spring of 1857 for the murder of their two young children. It was sufficiently proved upon that occasion that Mrs. Bacon (who had already been in a madhouse) committed the crime in a fit of insanity. Bacon, however, had endeavoured to manufacture some evidence in order to give countenance to a theory that the murder had been committed by housebreakers during his absence. He thus incurred suspicion, and was placed upon trial with his wife. It also came out that he had been tried (and acquitted) a year before for setting fire to his own house, and reasons appeared for suspecting him of an attempt to poison his mother at Stamford three years previously. Upon these facts Fitzjames wrote an article in the 'Saturday Review.'[65] He declared that the crime was as interesting, except for the want of dignity of the actors, as the events which gave the plot of some of the tragedies of Æschylus. It reminded him, too, of the terrible story of 'Jane Eyre.' For we had to suppose either that Bacon suffered by his marriage to a mad woman who had poisoned his mother, burnt his house, and cut his children's throats; or else that the wife's last outbreak had been the incidental cause of the discovery of his own previous crimes. In the last case we had an instance of that 'retributive vengeance' which, though it cannot be 'reduced to a very logical form, speaks in tones of thunder to the imaginations of mankind.'
The case came, as it happened, to the Midland Circuit. Bacon was tried in Lincoln on July 25 for poisoning his mother. Fitzjames writes from the court, where he is waiting in the hope that he may be asked by the judge to defend the prisoner. While he writes, the request comes accordingly, and he feels that if he is successful he may make the first step to fortune. He was never cooler or calmer, he says, in his life, and has always, 'in a way of his own,' 'truly and earnestly trusted in God to help him in all the affairs of life.' He made his speech, and suggested the theory already noticed, that the poisoning might have been the act of the mad wife. The judge paid him a high compliment, but summed up for a conviction, which accordingly followed. Fitzjames himself thought, though he was not 'quite sure,' that the man was guilty. He commented upon the case in another article in the 'Saturday Review,' not, of course, to dispute the verdict, but to draw a characteristic inference. Is it not, he asks, very hard upon a poor prisoner that he should have no better means of obtaining counsel than the request of the judge at the last moment to some junior barrister? They manage these things, he thinks, better in France; though 'we have no reason to speak with disrespect of the gentleman who conducted the case.'
Whatever may have been thought of Fitzjames's judgment in this case, he gradually, as I have said, came to be regularly employed upon similar occasions. By slow degrees, too, more profitable briefs came to him; but he was in the trying position of appearing on a good many occasions which excited much interest, while more regular work still declined to present itself in corresponding proportions. Now and then a puff of wind filled his sails for the moment, but wearying calms followed, and the steady gale which propels to fortune and to the highest professional advancement would not set in with the desired regularity.