In August 1859 Fitzjames was made recorder of Newark. The place, which he held till he went to India in 1869, was worth only 40l. a year; but was, as he said, a 'feather in his cap,' and a proof of his having gained a certain footing upon his circuit. It gave him his first experience as a judge, and I may mention a little incident of one of his earliest appearances in that character. He had to sentence a criminal to penal servitude, when the man's wife began to scream; he was touched by her grief, and left a small sum with the mayor to be given to her without mention of his name. The place was, it seems, practically the gift of the Duke of Newcastle; and Bethell, then Attorney-General, wrote to him in favour of Fitzjames's appointment. I am not aware how Bethell came to have any knowledge of him; but Fitzjames had formed a very high opinion of the great lawyer's merits. He showed it when Bethell, then Lord Westbury, was accused of misconduct as Lord Chancellor. He thought that the accusations, if not entirely unfounded, were grossly exaggerated for party purposes. He could not persuade the 'Pall Mall Gazette,' for which he was then writing, to take this view; but upon Westbury's resignation he obtained the insertion of a very cordial eulogy upon the ex-chancellor's merits as a law reformer.
The appointment to the recordership was one of the last pieces of intelligence to give pleasure to my father. Fitzjames had seen much of him during the last year. He had spent some weeks with him at Dorking in the summer of 1858, and had taken a little expedition with him in the spring of 1859. My father injured himself by a walk on his seventieth birthday (January 3, 1859), and his health afterwards showed symptoms of decline. In the autumn he was advised to go to Homburg; and thence, on August 30, he wrote his last letter, criticising a draft of a report which Fitzjames was preparing for the Education Commission, and suggesting a few sentences which would, he thinks, give greater clearness and emphasis to the main points. Immediately afterwards serious symptoms appeared, due, I believe, to the old break-down of 1847. My father was anxious to return, and started homewards with my mother and sister, who had accompanied him. They got as far as Coblenz, where they were joined by Fitzjames, who had set out upon hearing the news. He was just in time to see his father alive. Sir James Stephen died September 14, 1859, an hour or two after his son's arrival. He was buried at Kensal Green, where his tombstone bears the inscription: 'Be strong and of a good courage; be not afraid, neither be thou dismayed: for the Lord thy God is with thee whithersoever thou goest.' The words (from Joshua i. 9) were chosen because a friend remembered the emphasis with which my father had once dwelt upon them at his family prayers. With the opening words of the same passage my brother concluded the book which expressed his strongest convictions,[75] and summed up his practical doctrine of life. What he felt at the time may be inferred from a striking essay upon the 'Wealth of Nature,' which he contributed to the 'Saturday Review' of September 24, 1859.[76] It may be considered as a sermon upon the text of Gray's reflections in the 'Elegy' upon the 'hearts once pregnant with celestial fire' which lie forgotten in the country churchyard. What a vast work has been done by the unknown! what must have been the aggregate ability of those who, in less than thirty generations, have changed the England of King Alfred into the England of Queen Victoria! and yet how few are remembered! How many actions even, which would be gladly remembered, are constantly forgotten? 'The Indian Empire,' he says characteristically, 'is the most marvellous proof of this that the world can supply. A man died not long ago who, at twenty-five years of age, with no previous training, was set to govern a kingdom with absolute power, and who did govern it so wisely and firmly that he literally changed a wilderness into a fruitful land. Probably no one who reads these lines will guess to whom they allude.' I can, however, say that they allude to James Grant Duff (1789-1858), author of the 'History of the Mahrattas,' and father of his friend Sir Mountstuart. Fitzjames had visited the father in Scotland, and greatly admired him. His early career as resident of Sattara sufficiently corresponds to this statement. It is well, as Fitzjames maintained, that things should be as they are. Fame generally injures a man's simplicity; and this 'great reserve fund of ability' acts beneficially upon society at large, and upon the few conspicuous men who are conscious of their debt to their unknown colleagues. It would be a misfortune, therefore, if society affected to class people according to their merits; for, as it is, no one need be ashamed of an obscurity which proves nothing against him. We have the satisfaction of perceiving everywhere traces of skill and power, proving irrefragably that there are among us men 'who ennoble nearly every walk of life, and would have ennobled any.' A similar tone appears in the short life of his father, written in the following year. True success in life, he says, is not measured by general reputation. Sir James Stephen's family will be satisfied by establishing the fact that he did his duty. It was an instance of 'prosperity' that his obscurity 'protected him, and will no doubt effectually protect his memory against unjust censure and ignorant praise.'
The deaths of two old friends of his father's and his own marked the end of the year. On December 20, 1859, he hears of the death of John Austin, and proposes to attend the funeral, 'as there were few men for whom I had more respect or who deserved it more.' His admiration for Austin was at this time at its warmest.[77] Macaulay died on December 28, 1859; and on January 5, 1860, Fitzjames writes from Derby, where he has been all night composing a 'laudation' of the historian for the 'Saturday Review.'[78] It is 7.45 a.m., and he has just washed and dressed, as it is too late to go to bed before court. 'Tom Macaulay,' as has been seen, had been a model held up to him from infancy, and to the last retained a strong hold upon his affectionate remembrance.
Fitzjames was now completing his thirty-first year, and was emerging into a more independent position. He was in the full flow of energetic and various work, which was to continue with hardly an intermission until strength began to fail. At this period he was employed in the Education Commission, which for some time was meeting every day; he was writing for the 'Saturday Review' and elsewhere; he was also beginning to write an independent book; and he was attending his circuit and sessions regularly and gradually improving his position.[79] The story thus becomes rather complicated. I will first say a little of his professional work during the next few years, and I will then mention three books, which appeared from 1861 to 1863, and were his first independent publications; they will suggest what has to be said of his main lines of thought and work.
V. PROGRESS AT THE BAR
His practice at the bar was improving, though not very steadily or rapidly. 'Those cases, like Snow's or Bacon's,' he observes (Dec. 17, 1859), 'do me hardly any good.... I am making a reputation which would be very useful for an older man who already had business, but is to me glory, not gain. I am like a man who has good expectations and little or no income.' Still his position is better: he has made 100l. this year against 50l. the year before; he is beginning to 'take root,' especially at sessions; and he 'thoroughly delights in his profession.' In March 1860 he reports some high compliments from Mr. Justice Willes in consequence of a good speech; and has had inquiries made about him by attornies. But the attornies, he thinks, will have forgotten him before next circuit. There never was a longer hill than that which barristers have to climb; but 'it is neither a steep nor an unpleasant hill.' In July 1861 he was appointed to a revising barristership in North Derbyshire by Chief Baron Pollock, and was presented with a red bag by his friend Kenneth Macaulay, now leader of the circuit. He makes 100l. on circuit, and remarks that this is considered to mark a kind of turning-point. In 1862 things improve again. In July he is employed in three cases of which two were 'glorious triumphs,' and the third, the 'Great Grimsby riot,' which is 'at present a desperate battle,' is the biggest case he has yet had on circuit. The circuit turns out to be his most profitable, so far. On October 20 he reports that he has got pretty well 'to the top of the little hill' of sessions, and is beginning, though cautiously, to think of giving them up and to look forward to a silk gown. In 1863 he has 'a wonderful circuit' (March 20) above 200l., owing partly, it would seem, to Macaulay's absence, and too good to be repeated. In the summer, however, he has the first circuit in which there has been no improvement. On October 25 he is for once out of spirits. He has had 'miserable luck,' though he thinks in his conscience that it has been due not to his own fault, but to the 'stupidity of juries.' 'There is only one thing,' he says, 'which supports me in this, the belief that God orders all things, and that therefore we can be content and ought to take events as they come, be they small or great. Whenever I turn my thoughts that way it certainly does not seem to me very important whether in this little bit of a life I can accomplish all that I wish—so long as I try to do my best. I have often thought that perhaps one's life may be but a sort of school, in which one learns lessons for a better and larger world, and if so, I can quite understand that the best boys do not get the highest prizes, and that no boy, good or bad, ought to be unhappy about his prizes. There are things I long to do; books I long to write; thoughts and schemes that float before me, looking so near and clear, and yet being, as I feel, so indistinct or distant that I shall never make anything of them. Small ties and little rushings of the mind, briefs and magazine articles, and their like, will clog my wheels day after day and year after year. Yet I cannot altogether blame myself. Looking back on my life, I cannot seriously regret any of the principal steps I have taken in it. Still I do feel more or less disquieted or perturbed—I cannot help it.' Some uncomfortable thoughts could hardly fail to intrude at times when the compliments which he received from the highest authorities failed to be backed by a corresponding recognition from attornies; and at times, I suspect, his spirits were depressed by over-work, of which he was slow to acknowledge the possibility. To work, indeed, he turned for one chief consolation. He refers incidentally to various significant performances. 'Last night,' he writes from Derby, April 10, 1862, 'I finished a middle at two; and to-day I finished "Superstition"' (an article in the 'Cornhill') 'in a six hours' sitting, during which I had written thirty-two MS. pages straight off. I don't feel at all the worse for it.' On Nov. 14 following he observes that he is 'in first-rate health.' He wrote all night from six till three, got up at 7.30, and walked thirty-one miles; after which he felt 'perfectly fresh and well.' On Jan. 13, 1863, he has a long drive in steady rain, sits up 'laughing and talking' till one; writes a review till 4.45, and next day writes another article in court. On July 17, 1864, he finishes an article upon Newman at 3 a.m., having written as much as would fill sixteen pages of the 'Edinburgh Review'—the longest day's work he had ever done, and feels perfectly well. On March 13, 1865, he gets up at six, writes an article before breakfast, is in court all day, and has a consultation at nine. Early rising was, I think, his commonest plan for encountering a pressure of work; but he had an extraordinary facility for setting to work at a moment's notice. He had a power of eating and sleeping at any time, which he found, as he says, highly convenient. He was equally ready to write before breakfast, or while other people were talking and speechifying all round him in court, or when sitting up all night. And, like a strong man, he rejoiced in his strength, perhaps a little too unreservedly. If he now and then confesses to weariness, it never seemed to be more than a temporary feeling.
Of the cases in which he was engaged at this period I need only mention two—the case of Dr. Rowland Williams, of which I shall speak directly in connection with his published 'defence'; and the case of a man who was convicted of murder at Warwick in December 1863. The fellow had cut the throat of a girl who had jilted him. The facts were indisputable, and the only possible defence was insanity. Kenneth Macaulay and Fitzjames were counsel for the defence, but failed, and, as Fitzjames thought, rightly failed, to make good their case. He was, however, deeply moved by the whole affair—the most dramatic, he says, in which he had been engaged. The convict's family were respectable people, and behaved admirably. 'The poor mother sat by me in court and said, "I feel as if I could cling to anyone who could help him," and she put her hand on my arm and held it so that I could feel every beat of her pulse. Her fingers clutched me every time her heart beat. The daughters, too, were dreadfully moved, but behaved with the greatest natural dignity and calmness.' After the conviction Fitzjames felt that the man deserved to be hanged; but felt also bound to help the father in his attempts to get the sentence commuted. He could not himself petition, but he did his best to advise the unfortunate parents. He used to relate that the murderer had written an account of the crime, which it was proposed to produce as a proof of insanity. To Fitzjames it seemed to be a proof only of cold-blooded malignity which would insure the execution of the sentence. He was tormented by the conflict between his compassion and his sense of justice. Ultimately the murderer was reprieved on the ground that he had gone mad after the sentence. Fitzjames had then, he says, an uncomfortable feeling as if he were partly responsible for the blood of the murdered girl. The criminal soon afterwards committed suicide, and so finished the affair.