I might say, if I wished to be paradoxical, that this doctrine seems strange precisely because it is so common. It is what most people who think at all believe, but what nobody likes to avow. We have become so accustomed to the assertion that it is a duty for the ignorant to hold with unequivocal faith doctrines which are notoriously the very centres of philosophical doubt, that it is hard to believe that a man can regard them as at once important and incapable of strict proof. Fitzjames naturally appears to the orthodox as an unbeliever, because he admits the doubt. He replies to one such charge that the 'broad general doctrines, which are the only consolation in death and the only solid sanction of morality, never have been, and, please God, never shall be, treated in these columns in any other spirit than that of profound reverence and faith.'[86] Yet he would not say, for he did not think, that those doctrines could be demonstrated. It was the odd thing about your brother, said his old friend T. C. Sandars to me, that he would bring one face to face with a hopeless antinomy, and instead of trying, like most of us, to patch it up somehow, would conclude, 'Now let us go to breakfast.' Some of us discover a supernatural authority in these cases; others think that the doubt which besets these doctrines results from a vain effort to transcend the conditions of our intelligence, and that we should give up the attempt to solve them. Most men to whom they occur resolve that if they cannot answer their doubts they can keep them out of sight, even of themselves. Fitzjames was peculiar in frankly admitting the desirability of knowledge, which he yet admitted, with equal frankness, to be unattainable. And, for various reasons, partly from natural pugnacity, he was more frequently engaged in exposing sham substitutes for logic than in expounding his own grounds for believing in the probability. His own view was given most strikingly in a little allegory which I shall slightly condense, and which will, I think, sufficiently explain his real position in these matters. It concludes a review of a pamphlet by William Thomson, then Archbishop of York, upon the 'Limits of Philosophical Enquiry.'[87]
I dreamt, he says, after Bunyan's fashion, that I was in the cabin of a ship, handsomely furnished and lighted. A number of people were expounding the objects of the voyage and the principles of navigation. They were contradicting each other eagerly, but each maintained that the success of the voyage depended absolutely upon the adoption of his own plan. The charts to which they appealed were in many places confused and contradictory. They said that they were proclaiming the best of news, but the substance of it was that when we reached port most of us would be thrown into a dungeon and put to death by lingering torments. Some, indeed, would receive different treatment; but they could not say why, though all agreed in extolling the wisdom and mercy of the Sovereign of the country. Saddened and confused I escaped to the deck, and found myself somehow enrolled in the crew. The prospect was unlike the accounts given in the cabin. There was no sun; we had but a faint starlight, and there were occasionally glimpses of land and of what might be lights on shore, which yet were pronounced by some of the crew to be mere illusions. They held that the best thing to be done was to let the ship drive as she would, without trying to keep her on what was understood to be her course. For 'the strangest thing on that strange ship was the fact that there was such a course.' Many theories were offered about this, none quite satisfactory; but it was understood that the ship was to be steered due north. The best and bravest and wisest of the crew would dare the most terrible dangers, even from their comrades, to keep her on her course. Putting these things together, and noting that the ship was obviously framed and equipped for the voyage, I could not help feeling that there was a port somewhere, though I doubted the wisdom of those who professed to know all about it. I resolved to do my duty, in the hope that it would turn out to have been my duty, and I then felt that there was something bracing in the mystery by which we were surrounded, and that, at all events, ignorance honestly admitted and courageously faced, and rough duty vigorously done, was far better than the sham knowledge and the bitter quarrels of the sickly cabin and glaring lamplight from which I had escaped.
I need add no exposition of a parable which gives his essential doctrine more forcibly than I could do it. I will only add that he remained upon good terms with Newman, who had, as he heard, spoken of his article as honest, plain-spoken, and fair to him. He hopes, as he says upon this, to see the old man and talk matters over with him—a phrase which probably anticipates the interview of which I have spoken. Newman afterwards (September 9, 1866) writes to him in a friendly way, and gives him a statement of certain points of Catholic moral theology. They seem to have met again, but without further argument.
Fitzjames wrote various articles in 'Fraser' attacking Manning, and criticising among other writings Mr. Lecky's 'Rationalism' (very favourably), and Professor Seeley's then anonymous 'Ecce Homo.' He thinks that the author is a 'sheep in wolf's clothing,' and that his views dissolve into mist when closely examined. I need not give any account of these articles, but I may notice a personal connection which was involved. At this time Mr. Froude was editor of 'Fraser,' a circumstance which doubtless recommended the organ. At what time he became acquainted with Fitzjames I am unable to say; but the acquaintanceship ripened into one of his closest friendships. They had certain intellectual sympathies; and it would be hard to say which of them had the most unequivocal hatred of popery. Here again, however, the friendship was compatible with, or stimulated by, great contrasts of temperament. No one could be blind to Froude's great personal charm whenever he chose to exert it; but many people had the feeling that it was not easy to be on such terms as to know the real man. There were certain outworks of reserve and shyness to be surmounted, and they indicated keen sensibilities which might be unintentionally shocked. But to such a character there is often a great charm in the plain, downright ways of a masculine friend, who speaks what he thinks without reserve and without any covert intention. Froude and Fitzjames, in any case, became warmly attached; Froude thoroughly appreciated Fitzjames's fine qualities, and Fitzjames could not but delight in Froude's cordial sympathy.[88] Fitzjames often stayed with him in later years, both in Ireland and Devonshire: he took a share in the fishing, shooting, and yachting in which Froude delighted; and if he could not rival his friend's skill as a sportsman admired it heartily, delighted in pouring out his thoughts about all matters, and, as Froude told me, recommended himself to such companions as gamekeepers and fishermen by his hearty and unaffected interest in their pursuits.
Along with this friendship I must mention the friendship with Carlyle. Carlyle had some intercourse with my father in the 'fifties.' My father, indeed, had thought it proper to explain, in a rather elaborate letter after an early conversation, that he did not sympathise with one of Carlyle's diatribes against the Church of England, though he had not liked to protest at the moment. Carlyle responded very courteously and asked for further meetings. His view of my father was coloured by some of his usual severity, but was not intentionally disparaging.
Fitzjames, on his first call, had been received by Mrs. Carlyle, who ordered him off the premises on suspicion of being an American celebrity hunter. He submitted so peacefully that she relented; called him back, and, discovering his name, apologised for her wrath. I cannot fix the dates, but during these years Fitzjames gradually came to be very intimate with her husband. Froude and he were often companions of the old gentleman on some of his walks, though Fitzjames's opportunities were limited by his many engagements. I may here say that it would, I think, be easy to exaggerate the effects of this influence. In later years Fitzjames, indeed, came to sympathise with many of Carlyle's denunciations of the British Constitution and Parliamentary Government. I think it probable that he was encouraged in this view by the fiery jeremiads of the older man. He felt that he had an eminent associate in condemning much that was a general object of admiration. But he had reached his own conclusions by an independent path. From Carlyle he was separated by his adherence to Mill's philosophical and ethical principles. He was never, in Carlyle's phrase, a 'mystic'; and his common sense and knowledge of practical affairs made many of Carlyle's doctrines appear fantastic and extravagant. The socialistic element of Carlyle's works, of which Mr. Ruskin has become the expositor, was altogether against his principles. In walking with Carlyle he said that it was desirable to steer the old gentleman in the direction of his amazingly graphic personal reminiscences instead of giving him texts for the political and moral diatribes which were apt to be reproductions of his books. In various early writings he expressed his dissent very decidedly along with a very cordial admiration both of the graphic vigour of Carlyle's writings and of some of his general views of life. In an article in 'Fraser' for December 1865, he prefaces a review of 'Frederick' by a long discussion of Carlyle's principles. He professes himself to be one of the humble 'pig-philosophers' so vigorously denounced by the prophet. Carlyle is described as a 'transcendentalist'—a kind of qualified equivalent to intuitionist. And while he admires the shrewdness, picturesqueness, and bracing morality of Carlyle's teaching, Fitzjames dissents from his philosophy. Nay, the 'pig-philosophers' are the really useful workers; they have achieved the main reforms of the century; even their favourite parliamentary methods and their democratic doctrines deserve more respect than Carlyle has shown them; and Carlyle, if well advised, would recognise the true meaning of some of the 'pig' doctrines to be in harmony with his own. Their laissez-faire theory, for example, is really a version of his own favourite tenet, 'if a man will not work, neither let him eat.' Although Fitzjames's views changed, he could never become a thorough Carlylean; and after undertaking to write about Carlyle in Mr. Morley's series he abandoned the attempt chiefly because, as he told me, he found that he should have to adopt too frequently the attitude of a hostile critic. Meanwhile Carlyle admired my brother's general force of character, and ultimately made him his executor, in order, as he put it, that there might be a 'great Molossian dog' to watch over his treasure.
VIII. VIEW OF THE CRIMINAL LAW
I come now to the third book of which I have spoken. This was the 'General View of the Criminal Law of England,' published in 1863. Fitzjames first begins to speak of his intention of writing this book in 1858. He then took it up in preference to the history of the English administrative system, recommended by his father. That book, indeed, would have required antiquarian researches for which he had neither time nor taste. He thought his beginning too long and too dull to be finished at present. He was anxious, moreover, at the time of the Education Commission to emphasise the fact that he had no thoughts of abandoning his profession. A law-book would answer this purpose; and the conclusion of the commission in 1861, and the contemporary breach with the 'Saturday Review,' gave him leisure enough to take up this task. The germ of the book was already contained in his article in the 'Cambridge Essays,' part of which he reproduces. He aspired to make a book which should be at once useful to lawyers and readable by every educated man. The 'View' itself has been in a later edition eclipsed by the later 'History of the English Criminal Law.' In point of style it is perhaps better than its successor, because more concentrated to a single focus. Although I do not profess to be a competent critic of the law, a few words will explain the sense in which I take it to be characteristic of himself.
The book, in the first place, is not, like most law-books, intended for purely practical purposes. It attempts to give an account of the 'general scope, tendency, and design of an important part of our institutions of which surely none can have a greater moral significance, or be more closely connected with broad principles of morality and politics, than those by which men rightfully, deliberately, and in cold blood, kill, enslave, or otherwise torment their fellow-creatures.'[89] The phrase explains the deep moral interest belonging in his mind to a branch of legal practice which for sufficiently obvious reasons is generally regarded as not deserving the attention of the higher class of barristers. Fitzjames was always attracted by the dramatic interest of important criminal cases, and by the close connection in various ways between criminal law and morality. He had now gained sufficient experience to speak with some authority upon a topic which was to occupy him for many years. In his first principles he was an unhesitating disciple of Bentham[90] and Austin. Bentham had given the first great impulse to the reforms in the English Criminal Law, which began about 1827; and Austin had put Bentham's general doctrine into a rigid form which to Fitzjames appeared perfectly satisfactory. Austin's authority has declined as the historical method has developed; Fitzjames gives his impression of their true relations in an article on 'Jurisprudence' in the 'Edinburgh Review' of October 1861. He there reviews the posthumously published lectures of Austin, along with Maine's great book upon 'Ancient Law,' which in England heralded the new methods of thought. His position is characteristic. He speaks enthusiastically of Austin's services in accurately defining the primary conceptions with which jurisprudence is conversant. The effect is, he says, nothing less than this; that jurisprudence has become capable of truly scientific treatment. He confirms his case by the parallel of the Political Economy founded by Adam Smith and made scientific by Ricardo. I do not think that Fitzjames was ever much interested in economical writings; and here he is taking for granted the claims which were generally admitted under the philosophical dynasty of J. S. Mill. Political Economy was supposed to be a definitely constituted science; and the theory of jurisprudence, which sprang from the same school and was indeed its other main achievement, was entitled to the same rank. Fitzjames argues, or rather takes for granted, that the claims of the economists to be strictly scientific are not invalidated by the failure of their assumptions to correspond exactly to concrete facts; and makes the same claim on behalf of Austin. His view of Maine's work is determined by this. He of course cordially admires his friend; but protests against the assumption by which Maine is infected, that a history of the succession of opinions can be equivalent to an examination of their value. Maine shows, for example, how the theory of the 'rights of man' first came up in the world; but does not thereby either prove or disprove it. It may have been a fallacy suggested by accident or a truth first discovered in a particular case. Maine, therefore, and the historical school generally require some basis for their inquiries, and that basis is supplied by the teaching of Bentham and Austin. I will only observe in connection with this that Fitzjames is tempted by his love of such inquiries to devote a rather excessive space in his law-book to inquiries about the logical grounds of conviction which have the disadvantage of not being strictly relevant, and the further disadvantage, I think, of following J. S. Mill in some of the more questionable parts of his logic.
The writings of Bentham consisted largely in denunciations of the various failings of the English law; and here Fitzjames takes a different position. One main point of the book was the working out of a comparison already made in the 'Cambridge Essays' between the English and the French systems. This is summed up in the statement that the English accepts the 'litigious' and the French the 'inquisitorial' system. In other words, the theory of French law is that the whole process of detecting crime is part of the functions of government. In France there is a hierarchy of officials who, upon hearing of a crime, investigate the circumstances in every possible way, and examine everyone who is able, or supposed to be able, to throw any light upon it. The trial is merely the final stage of the investigation, at which the various authorities bring out the final result of all their previous proceedings. The theory of English law, on the contrary, is 'litigious': the trial is a proceeding in which the prosecutor endeavours to prove that the prisoner has rendered himself liable to a certain punishment; and does so by producing evidence before a judge, who is taken to be, and actually is, an impartial umpire. He has no previous knowledge of the fact; he has had nothing to do with any investigations, and his whole duty is to see that the game is played fairly between the ligitants according to certain established rules. Neither system, indeed, carries out the theory exclusively. 'An English criminal trial is a public inquiry, having for its object the discover of truth, but thrown for the purposes of obtaining that end into the form of a litigation between the prosecutor and the prisoner.'[91] On the other hand, in the French system, the jury is really an 'excrescence' introduced by an afterthought. Now, says Fitzjames, the 'inquisitorial theory' is 'beyond all question the true one.' A trial ought obviously to be a public inquiry into a matter of public interest. He holds, however, that the introduction of the continental machinery for the detection of crime is altogether out of the question. It practically regards the liberty and comfort of any number of innocent persons as unimportant in comparison with the detection of a crime; and involves an amount of interference and prying into all manner of collateral questions which would be altogether unendurable in England. He is therefore content to point out some of the disadvantages which result from our want of system, and to suggest remedies which do not involve any radical change of principle.