This brings out his divergence from Bentham, not in principle but in the application of his principles. One most characteristic part of the English system is the law of evidence, which afterwards occupied much of Fitzjames's thoughts. Upon the English system there are a great number of facts which, in a logical sense, have a bearing upon the case, but which are forbidden to be adduced in a trial. So, to make one obvious example, husbands and wives are not allowed to give evidence against each other. Why not? asks Bentham. Because, it is suggested, the evidence could not be impartial. That, he replies, is an excellent reason for not implicitly believing it; but it is no reason for not receiving it. The testimony, even if it be partial, or even if false, may yet be of the highest importance when duly sifted with a view to the discovery of the truth. Why should we neglect any source from which light may be obtained? Such arguments fill a large part of Bentham's elaborate treatise upon the 'Rationale of Evidence,' and support his denunciations of the 'artificial' system of English law. English lawyers, he held, thought only of 'fee-gathering'; and their technical methods virtually reduced a trial from an impartial process of discovering truth into a mere struggle between lawyers fighting under a set of technical and arbitrary rules. He observes, for example, that the 'natural' mode of deciding a case has been preserved in a few cases by necessity, and especially in the case of Courts-Martial.[92] Bentham was not a practical lawyer; and Fitzjames had on more than one occasion been impressed in precisely the opposite way by the same case.[93] He had pointed out that the want of attention to the rules of evidence betrayed courts-martial into all manner of irrelevant and vexatious questions, which protracted their proceedings beyond all tolerable limits. But, on a larger scale, the same point was illustrated by a comparison between French and English trials. To establish this, he gives careful accounts of four English and three French trials for murder. The general result is that, although some evidence was excluded in the English trials which might have been useful, the advantage was, on the whole, greatly on their side. The French lawyers were gradually drawn on into an enormous quantity of investigations having very little relation to the case, and finally producing a mass of complicated statements and counter-statements beyond the capacity of a jury to bring to a definite issue. The English trials, on the other hand, did, in fact, bring matters to a focus, and allowed all really relevant matters to be fairly laid before the court. A criminal trial has to be more or less of a rough and ready bit of practical business. The test by which it is decided is not anything which can be laid down on abstract logical principles, but reduces itself to the simple fact that you can get twelve men to express a conviction equal to that which would decide them in important business of their own. And thus, though the English law is unsystematic, ill-arranged, and superficially wanting in scientific accuracy, it does, in fact, represent a body of principles, worked out by the rough common sense of successive generations, and requires only to be tabulated and arranged to become a system of the highest excellence.
The greatest merit, perhaps, of the English system is the attitude naturally assumed by the judge. No one, says Fitzjames, 'can fail to be touched' when he sees an eminent lawyer 'bending the whole force of his mind to understand the confused, bewildered, wearisome, and half-articulate mixture of question and statement which some wretched clown pours out in the agony of his terror and confusion.' The latitude allowed in such cases is highly honourable. 'Hardly anything short of wilful misbehaviour, such as gross insults to the court or abuse of a witness, will draw upon (the prisoner) the mildest reproof.'[94] The tacit understanding by which the counsel for the Crown is forbidden to press his case unfairly is another proof of the excellence of our system, which contrasts favourably in this respect with the badgering and the prolonged moral torture to which a French prisoner is subject. Reforms, however, are needed which will not weaken these excellences. The absence of any plan for interrogating the prisoner avoids the abuses of the French system, but is often a cruel hardship upon the innocent. 'There is a scene,' he says, 'which most lawyers know by heart, but which I can never hear without pain.' It is the scene when the prisoner, confused by the unfamiliar surroundings, and by the legal rules which he does not understand, tries to question the adverse witness, and muddles up the examination with what ought to be his speech for the defence, and, not knowing how to examine, is at last reduced to utter perplexity, and thinks it respectful to be silent. He mentions a case by which he had been much impressed, in which certain men accused of poaching had failed, from want of education and familiarity with legal rules, to bring out their real defence. An unlucky man, for example, had asked questions about the colour of a dog, which seemed to have no bearing upon the case, but which, as it afterwards turned out, incidentally pointed to a fact which identified the really guilty parties. He thinks that the interrogation of the prisoner might be introduced under such restrictions as would prevent any unfair bullying, and yet tend both to help an innocent man and to put difficulties in the way of sham or false defences of the guilty. This question, I believe, is still unsettled. I will not dwell upon other suggestions. I will only observe that he is in favour of some codification of the criminal law; though he thinks that enough would be done by re-enacting, in a simpler and less technical form, the six 'Consolidation Acts' of 1861. He proposes, also, the formation of a Ministry of Justice which would in various ways direct the administration of the law, and superintend criminal legislation. Briefly, however, I am content to say that, while he starts from Bentham, and admits Bentham's fundamental principles, he has become convinced by experience that Bentham's onslaught upon 'judge-made law,' and legal fictions, and the 'fee-gathering' system, was in great part due to misunderstanding. The law requires to be systematised and made clear rather than to be substantially altered. It is, on the whole, a 'generous, humane, and high-minded system, eminently favourable to individuals, and free from the taint of that fierce cowardice which demands that, for the protection of society, somebody shall be punished when a crime has been committed.' Though English lawyers are too apt to set off 'an unreasonable hardship against an unreasonable indulgence,' 'to trump one quibble by another, and to suppose that they cannot be wrong in practice because they are ostentatiously indifferent to theory,' the temper of the law is, in the main, 'noble and generous.' 'No spectacle,' he says, 'can be better fitted to satisfy the bulk of the population, to teach them to regard the Government as their friend, and to read them lessons of truth, gentleness, moderation, and respect for the rights of others, especially for the rights of the weak and the wicked, than the manner in which criminal justice is generally administered in this country.'[95]
The book produced many of those compliments to which he was becoming accustomed, with a rather rueful sense of their small value. He could, he says, set up a shop with the stock he had received, though, in common honesty, he would have to warn his customers of the small practical value of his goods. Two years hence, he thinks that a report of his being a legal author of some reputation may have reached an attorney. Among the warmest admirers was Willes, who called the 'View' a 'grand book,' kept it by him on the bench, and laid down the law out of it. Willes remarks in a murder case at the same time
(March 1865) that the prisoner has been defended 'with a force and ability which, if anything could console one for having to take part in such a case, would do so.' 'It is a great consolation to me,' remarks Fitzjames. The local newspaper observes on the same occasion that Fitzjames's speech for the prisoner kept his audience listening 'in rapt attention' to one of the ablest addresses ever delivered under such circumstances. In the beginning of 1865 he 'obtained the consent' of his old tutor Field, now leader on the circuit, to his giving up attendance at sessions except upon special retainers. Altogether he is feeling more independent and competent for his professional duties.
IX. THE 'PALL MALL GAZETTE'
At this time, however, he joined in another undertaking which for the following five years occupied much of his thoughts. It involved labours so regular and absorbing, that they would have been impossible had his professional employments been equal to his wishes. Towards the end of 1864 he informs Mr. Smith that he cannot continue to be a regular contributor to the 'Cornhill Magazine.' He observes, however, that if Mr. Smith carries out certain plans then in contemplation, he will be happy to take the opportunity of writing upon matters of a more serious kind. The reference is to the 'Pall Mall Gazette,' of which the first number appeared on February 7, 1865, upon the opening day of the parliamentary session. The 'Pall Mall Gazette' very soon took a place among daily papers similar to that which had been occupied by the 'Saturday Review' in the weekly press. Many able writers were attached, and especially the great 'Jacob Omnium' (Matthew James Higgins), who had a superlative turn for 'occasional notes,' and 'W. R. G.' (William Rathbone Greg), who was fond of arguing points from a rather paradoxical point of view. 'I like refuting W. R. G.,' says Fitzjames, though the 'refutations' were on both sides courteous and even friendly.[96] Mr. Frederic Harrison was another antagonist, who always fought in a chivalrous spirit, and on one occasion a controversy between them upon the theory of strikes actually ends by a mutual acceptance of each other's conclusions. A sharp encounter with 'Historicus' of the 'Times' shows that old Cambridge encounters had not produced agreement. Fitzjames was one of the writers to whom Mr. Smith applied at an early stage of the preparatory arrangements. Fitzjames's previous experience of Mr. Smith's qualities as a publisher made him a very willing recruit, and he did his best to enlist others in the same service. He began to write in the second number of the paper, and before very long he took the lion's share of the leading articles. The amount of work, indeed, which he turned out in this capacity, simultaneously with professional work and with some other literary occupations, was so great that these years must, I take it, have been the most laborious in a life of unflagging labour. I give below an account of the number of articles contributed, which will tell the story more forcibly than any general statement. A word or two of explanation will be enough.[97] The 'Pall Mall' of those days consisted of a leading article (rarely of two) often running to a much greater length than is now common; of 'occasional notes,' which were then a comparative novelty; of reviews, and of a few miscellaneous articles. The leading article was a rather more important part of the paper, or at least took up a larger proportion of space than it does at the present day. Making allowance for Sundays, it will be seen that in 1868 Fitzjames wrote two-thirds of the leaders, nearly half the leaders in 1867, and not much less than half in the three other years (1865, 1866, and 1869). The editor was Mr. F. Greenwood, who has kindly given me some of his recollections of the time. That Mr. Greenwood esteemed his contributor as a writer is sufficiently obvious from the simple statement of figures: and I may add that they soon formed a very warm friendship which was never interrupted in later years.
I have said that Fitzjames valued his connection with the paper because it enabled him to speak his mind upon many important subjects which had hitherto been forbidden to him. In the 'Saturday Review' he had been confined to the 'middles' and the reviews of books. He never touched political questions; and such utterances as occurred upon ecclesiastical matters were limited by the high church propensities of the proprietor. In the 'Cornhill' he had been bound to keep within the limits prescribed by the tastes of average readers of light literature. In the 'Pall Mall Gazette' he was able to speak out with perfect freedom upon all the graver topics of the day. His general plan, when in town, was to write before breakfast, and then to look in at the office of the 'Pall Mall Gazette,' Northumberland Street, Strand, in the course of his walk to his chambers. There he talked matters over with Mr. Greenwood, and occasionally wrote an article on the spot. When on circuit he still found time to write, and kept up a steady supply of matter. I find him remarking, on one occasion, that he had written five or six leaders in the 'Pall Mall Gazette' for the week, besides two 'Saturday Review' articles. Everyone who has had experience of journalism knows that the time spent in actual writing is a very inadequate measure of the mental wear and tear due to production. An article may be turned out in an hour or two; but the work takes off the cream of the day, and involves much incidental thought and worry. Fitzjames seemed perfectly insensible to the labour; articles came from him as easily as ordinary talk; the fountain seemed to be always full, and had only to be turned on to the desired end. The chief fault which I should be disposed to find with these articles is doubtless a consequence of this fluency. He has not taken time to make them short. They often resemble the summing-up of a judge, who goes through the evidence on both sides in the order in which it has been presented to him, and then states the 'observations which arise' and the 'general result' (to use his favourite phrases). A more effective mode of presenting the case might be reached by at once giving the vital point and arranging the facts in a new order of subordination.
The articles, however, had another merit which I take to be exceedingly rare. I have often wondered over the problem, What constitutes the identity of a newspaper? I do not mean to ask, though it might be asked, In what sense is the 'Pall Mall Gazette' of to-day the same newspaper as the 'Pall Mall Gazette' of 1865? but What is meant by the editorial 'We'? The inexperienced person is inclined to explain it as a mere grammatical phrase which covers in turn a whole series of contributors. But any writer in a paper, however free a course may be conceded to him, finds as a fact that the 'we' means something very real and potent. As soon as he puts on the mantle, he finds that an indefinable change has come over his whole method of thinking and expressing himself. He is no longer an individual but the mouthpiece of an oracle. He catches some infection of style, and feels that although he may believe what he says, it is not the independent outcome of his own private idiosyncrasy. Now Fitzjames's articles are specially remarkable for their immunity from this characteristic. When I read them at the time, and I have had the same experience in looking over them again, I recognised his words just as plainly as if I had heard his voice. A signature would to me and to all in the secret have been a superfluity. And, although the general public had not the same means of knowledge, it was equally able to perceive that a large part of the 'Pall Mall Gazette' represented the individual convictions of a definite human being, who had, moreover, very strong convictions, and who wrote with the single aim of expressing them as clearly and vigorously as he could. Fitzjames, as I have shown sufficiently, was not of the malleable variety; he did not fit easily into moulds provided by others; but now that his masterful intellect had full play and was allowed to pour out his genuine thought, it gave the impress of individual character to the paper in a degree altogether unusual.
I have one anecdote from Mr. Greenwood which will sufficiently illustrate this statement. Lord Palmerston died on October 18, 1865. On October 27 he was buried in Westminster Abbey. Fitzjames came to the 'Pall Mall Gazette' office and proposed to write an article upon the occasion. He went for the purpose into a room divided by a thin partition from that in which Mr. Greenwood sat. Mr. Greenwood unintentionally became aware, in consequence, that the article was composed literally with prayer and with tears. No one who turns to it will be surprised at the statement. He begins by saying that we are paying honour to a man for a patriotic high spirit which enabled him to take a conspicuous part in building up the great fabric of the British Empire. But he was also—as all who were taking part in the ceremony believed in their hearts—a 'man of the world' and 'a man of pleasure.' Do we, then, disbelieve in our own creed, or are we engaged in a solemn mockery? Palmerston had not obeyed the conditions under which alone, as every preacher will tell us, heaven can be hoped for. Patriotism, good nature, and so forth are, as we are told, mere 'filthy rags' of no avail in the sight of heaven. If this belief be genuine, the service must be a mockery. But he fully believes that it is not genuine. The preachers are inconsistent, but it is an honourable inconsistency. If good and evil be not empty labels of insincere flattery, it is 'right, meet, and our bounden duty' to do what is being done even now—to kneel beside the 'great, good, and simple man whom we all deplore,' and to thank God that it has pleased Him to remove our brother 'out of the miseries of this sinful world.'
'Our miserable technical rules reach but a little way into the mystery' which 'dimly foreshadows that whatever we with our small capacities have been able to love and honour, God, who is infinitely wiser, juster, and more powerful, will love and honour too, and that whatever we have been compelled to blame, God, who is too pure to endure unrighteousness, will deal with, not revengefully or capriciously, but justly and with a righteous purpose. Whatever else we believe, it is the cardinal doctrine of all belief worth having that the Judge of all the earth will do right; that His justice is confined to no rules; that His mercy is over all the earth; and that revenge, caprice, and cruelty can have no place in His punishments.'