Few leading articles, I take it, have been written under such conditions or in such a spirit. The reader must have felt himself face to face with a real man, profoundly moved by genuine thoughts and troubled as only the most able and honest men are troubled, by the contrast between our accustomed commonplaces and our real beliefs. Most of his articles are written in a strain of solid and generally calm common sense; and some, no doubt, must have been of the kind compared by his father to singing without inflated lungs—mere pieces of routine taskwork. Yet, as I have already shown, by his allegory of the ship, there was always a strong vein of intense feeling upon certain subjects, restrained as a rule by his dislike to unveiling his heart too freely and yet making itself perceptible in some forcible phrase and in the general temper of mind implied. The great mass of such work is necessarily of ephemeral interest; and it is painful to turn over the old pages and observe what a mould of antiquity seems to have spread over controversies so exciting only thirty years ago. We have gone far in the interval; though it is well to remember that we too shall soon be out of date, and our most modern doctrines lose the bloom of novelty. There are, however, certain lights in which even the most venerable discussions preserve all their freshness. Without attempting any minute details, I will endeavour to indicate the points characteristic of my brother's development.
There was one doctrine which he expounds in many connections, and which had a very deep root in his character. It appears, for example, in his choice of a profession; decided mainly by the comparison between the secular and the spiritual man. The problem suggested to him by Lord Palmerston shows another application of the same mode of thought. What is the true relation between the Church and the world; or between the monastic and ascetic view of life represented by Newman and the view of the lawyer or man of business? To him, as I have said, God seemed to be more palpably present in a court of justice than in a monastery; and this was not a mere epigram expressive of a transitory mood. Various occurrences of the day led him to apply his views to questions connected with the Established Church. After the 'Essays and Reviews' had ceased to be exciting there were some eager discussions about Colenso, and his relations as Bishop of Natal to the Bishop of Capetown. Controversies between liberal Catholics and Ultramontanes raised the same question under different aspects, and Fitzjames frequently finds texts upon which to preach his favourite sermon. It may be said, I think, that there are three main lines of opinion. In the first place, there was the view of the liberationists and their like. The ideal is a free Church in a free State. Each has its own sphere, and, as Macaulay puts it in his famous essay upon Mr. Gladstone's early book, the State has no more to do with the religious opinions of its subjects than the North-Western Railway with the religious opinions of its shareholders. This, represented a view to which Fitzjames felt the strongest antipathy. It assumed, he thought, a radically false notion, the possibility of dividing human life into two parts, religious and secular; whereas in point of fact the State is as closely interested as the Church in the morality of its members, and therefore in the religion which determines the morality. The State can only keep apart permanently from religious questions by resigning all share in the most profoundly important and interesting problems of life. To accept this principle would therefore be to degrade the State to a mere commercial concern, and it was just for that reason that its acceptance was natural to the ordinary radical who reflected the prejudices of the petty trader. A State which deserves the name has to adopt morality of one kind or another, in its criminal legislation, in its whole national policy, in its relation to education, and more or less in every great department of life. In his view, therefore, the ordinary cry for disestablishment was not the recognition of a tenable and consistent principle, but an attempt to arrange a temporary compromise which could only work under special conditions, and must break up whenever men's minds were really stirred. However reluctant they may be, they will have to answer the question, Is this religion true or not? and to regulate their affairs accordingly. He often expresses a conviction that we are all in fact on the eve of such a controversy, which must stir the whole of society to its base.
We have, then, to choose between two other views. The doctrine of sovereignty expounded by Austin, and derived from his favourite philosopher Hobbes, enabled him to put the point in his own dialect. The difference between Church and State, he said, is not a difference of spheres, but a difference of sanctions. Their commands have the same subject matter: but the priest says, 'Do this or be damned'; the lawyer, 'Do this or be hanged.' Hence the complete separation is a mere dream. Since both bodies deal with the same facts, there must be an ultimate authority. The only question is which? Will you obey the Pope or the Emperor, the power which claims the keys of another life or the power which wields the sword in this. So far he agrees with the Ultramontanes as against the liberal Catholics. But, though the Ultramontanes put the issue rightly, his answer is diametrically opposite. He follows Hobbes and is a thorough-going Erastian. He sympathised to some degree with the doctrine of Coleridge and Dr. Arnold. They regarded the Church and the State as in a sense identical; as the same body viewed under different aspects. Fitzjames held also that State and Church should be identical; but rather in the form that State and Church were to be one and that one the State. For this there were two good reasons. In the first place, the claims of the Church to supernatural authority were altogether baseless. To bow to those claims was to become slaves of priests and to accept superstitions. And, in the next place, this is no mere accident. The division between the priest and layman corresponds to his division between his 'sentimentalist' and his 'stern, cold man of common sense.' Now the priest may very well supply the enthusiasm, but the task of legislation is one which demands the cool, solid judgment of the layman. He insists upon this, for example, in noticing Professor Seeley's description of the 'Enthusiasm of Humanity' in 'Ecce Homo.' Such a spirit, he urges, may supply the motive power, but the essence of the legislative power is to restrict and constrain, and that is the work not of the enthusiast, but of the man of business. During this period he seems to have had some hopes that his principles might be applied. The lawyers had prevented the clergy from expelling each section of the Church in turn: and the decision in the 'Essays and Reviews' cases had settled that free-thinking should have its representatives among ecclesiastical authorities. At one period he even suggests that, if an article or two were added to the thirty-nine, some change made in the ordination service, and a relaxation granted in the terms of subscription, the Church might be protected from sacerdotalism; and, though some of the clergy might secede to Rome, the Church of England might be preserved as virtually the religious department of the State. He soon saw that any realisation of such views was hopeless. He writes from India in 1870 to a friend, whom he had advised upon a prosecution for heresy, saying that he saw clearly that we were drifting towards voluntaryism. Any other solution was for the present out of the question; although he continued to regard this as a makeshift compound, and never ceased to object to disestablishment.
Fitzjames's political views show the same tendencies. He had not hitherto taken any active interest in politics, taken in the narrower sense. Our friend Henry Fawcett, with whom he had many talks on his Christmas visits to Trinity Hall, was rather scandalised by my brother's attitude of detachment in regard to the party questions of the day. Fitzjames stood for Harwich in the Liberal interest at the general election of 1865; but much more because he thought that a seat in Parliament would be useful in his profession than from any keen interest in politics. The Harwich electors in those days did not, I think, take much interest themselves in political principles. Both they and he, however, seemed dimly to perceive that he was rather out of his element, and the whole affair, which ended in failure, was of the comic order. His indifference and want of familiarity with the small talk of politics probably diminished the effect of his articles in so far as it implied a tendency to fall back upon principles too general for the average reader. But there was no want of decided convictions. The death of Palmerston marked the end of the old era, and was soon succeeded by the discussions over parliamentary reform which led to Disraeli's measure of 1867. Fitzjames considered himself to be a Liberal, but the Liberals of those days were divided into various sections, not fully conscious of the differences which divided them. In one of his 'Cornhill' articles[98] Fitzjames had attempted to define what he meant by liberalism. It meant, he said, hostility to antiquated and narrow-minded institutions. It ought also to mean 'generous and high-minded sentiments upon political subjects guided by a highly instructed, large-minded and impartial intellect, briefly the opposite of sordidness, vulgarity, and bigotry.' The party technically called Liberal were about to admit a larger popular element to a share of political power. The result would be good or bad as the new rulers acted or did not act in the spirit properly called Liberal. Unluckily the flattery of the working-man has come into fashion; we ignore his necessary limitations, and we deify the 'casual opinions and ineffectual public sentiments' of the half-educated. 'The great characteristic danger of our days is the growth of a quiet, ignoble littleness of character and spirit.' We should aim, therefore, at impressing our new masters 'with a lofty notion not merely of the splendour of the history of their country, but of the part which it has to play in the world, and of the spirit in which it should be played.' He gives as an example a topic to which he constantly turns. The 'whole fabric' of the Indian Empire, he says, is a monument of energy, 'skill and courage, and, on the whole, of justice and energy, such as the world never saw before.' How are we to deal with that great inheritance bequeathed to us by the courage of heroes and the wisdom of statesmen? India is but one instance. There is hardly an institution in the country which may not be renewed if we catch the spirit which presided over its formation. Liberals have now to be authors instead of critics, and their solution of such problems will decide whether their success is to be a curse or a blessing.
This gives the keynote of his writings in the 'Pall Mall Gazette.' He frankly recognises the necessity, and therefore does not discuss the advisability, of a large extension of the franchise. He protests only against the view, which he attributes to Bright, that the new voters are to enter as victors storming the fortress of old oppressors, holding that they should be rather cordially invited to take their place in a stately mansion upheld for eight centuries by their ancestors. When people are once admitted, however, the pretext for admission is of little importance. Fitzjames gradually comes to have his doubts. There is, he says, a liberalism of the intellect and a liberalism of sentiment. The intellectual liberal is called a 'cold-hearted doctrinaire' because he asks only whether a theory be true or false; and because he wishes for statesmanlike reforms of the Church, the educational system, and the law, even though the ten-pound householder may be indifferent to them. But the sentimental liberal thought only of such measures as would come home to the ten-pound householder; and apparently this kind of liberal was getting the best of it. The various party manœuvres which culminated in the Reform Bill begin to excite his contempt. He is vexed by the many weaknesses of party government. The war of 1866 suggests reflections upon the military weakness of England, and upon the inability of our statesmen to attend to any object which has no effect upon votes. The behaviour of the Conservative Government in the case of the Hyde Park riots of the same year excites his hearty contempt. He is in favour of the disestablishment of the Irish Church, and lays down substantially the principles embodied in Mr. Gladstone's measure. But he sympathises more and more with Carlyle's view of our blessed constitution. We have the weakest and least permanent government that ever ruled a great empire, and it seems to be totally incapable of ever undertaking any of the great measures which require foresight and statesmanship. He compares in this connection the construction of legal codes in India with our inability to make use of a great legal reformer, such as Lord Westbury, when we happen to get him. Sentiments of this kind seem to grow upon him, although they are not expressed with bitterness or many personal applications. It is enough to say that his antipathy to sentimentalism, and to the want of high patriotic spirit in the Manchester school of politics, blends with a rather contemptuous attitude towards the parliamentary system. It reveals itself to him, now that he is forced to become a critic, as a petty game of wire-pulling and of pandering to shallow popular prejudices of which he is beginning to grow impatient.
I may finish the account of his literary activity at this time by saying that he was still contributing occasional articles to 'Fraser' and to the 'Saturday Review.' The 'Saturday Review' articles were part of a scheme which he took up about 1864. It occurred to him that he would be employing himself more profitably by writing a series of articles upon old authors than by continuing to review the literature of the day. He might thus put together a kind of general course of literature. He wrote accordingly a series of articles which involved a great amount of reading as he went through the works of some voluminous authors. They were published as 'Horæ Sabbaticæ' in 1892, in three volumes, without any serious revision. It is unnecessary to dwell upon them at any length. It would be unfair to treat them as literary criticism, for which he cared as little as it deserves. He was very fond, indeed, of Sainte-Beuve, but almost as much for the information as for the criticism contained in the 'Causeries.' He had always a fancy for such books as Gibbon's great work which give a wide panoramic view of history, and defended his taste on principle. These articles deal with some historical books which interested him, but are chiefly concerned with French and English writers from Hooker to Paley and from Pascal to De Maistre, who dealt with his favourite philosophical problems. Their peculiarity is that the writer has read his authors pretty much as if he were reading an argument in a contemporary magazine. He gives his view of the intrinsic merits of the logic with little allowance for the historical position of the author. He has not made any study of the general history of philosophy, and has not troubled himself to compare his impressions with those of other critics. The consequence is that there are some very palpable misconceptions and failure to appreciate the true relation to contemporary literature of the books criticised. I can only say, therefore, that they will be interesting to readers who like to see the impression made upon a masculine though not specially prepared mind by the perusal of certain famous books, and who relish an independent verdict expressed in downright terms without care for the conventional opinion of professional critics.
His thoughts naturally turned a good deal to various projects connected with his writing. In July 1867 he writes that he has resolved to concentrate himself chiefly upon the 'Pall Mall Gazette' for the present. He is, however, to complete some schemes already begun. The 'Fraser' articles upon religious topics will make one book; then there are the 'Horæ Sabbaticæ' articles, of which he has already written fifty-eight, and which will be finished in about twenty more. But, besides this, he has five law-books in his mind, including a rewriting of the book on criminal law and a completion of the old book upon the administrative history. Others are to deal with martial law, insanity, and the relations of England to India and the colonies. Beyond these he looks at an 'awful distance' upon a great book upon law and morals. He is beginning to doubt whether literature would not be more congenial than law, if he could obtain some kind of permanent independent position. Law, no doubt, has given him a good training, but the pettiness of most of the business can hardly be exaggerated; and he hardly feels inclined to make it the great aim of his life. He had, however, risen to a distinctly higher position on his circuit; and just at this time he was engaged in one of the cases which, as usual, brought more in the way of glory than of gain.
X. GOVERNOR EYRE
The troubles in Jamaica had taken place in October 1865. The severity of the repressive measures excited indignation in England; and discussions arose conducted with a bitterness not often paralleled. The Gordon case was the chief topic of controversy. Governor Eyre had arrested Gordon, whom he considered to be the mainspring of the insurrection, and sent him to the district in which martial law had been proclaimed. There he was tried by a court-martial ordered by General Nelson, and speedily hanged. The controversy which followed is a curious illustration of the modes of reasoning of philosophers and statesmen. Nobody could deny the general proposition that the authorities are bound to take energetic measures to prevent the horrors of a servile insurrection. Nor could anyone deny that they are equally bound to avoid the needless severities which the fear of such horrors is likely to produce. Which principle should apply was a question of fact; but in practice the facts were taken for granted. One party assumed unanimously that Governor Eyre had been doing no more than his duty; and the other, with equal confidence, assumed that he was guilty of extreme severity. A commission, consisting of Sir Henry Storks, Mr. Russell Gurney, and Mr. Maule, the recorder of Leeds, was sent out at the end of 1865 to inquire into the facts. Meanwhile the Jamaica Committee was formed, of which J. S. Mill was chairman, with Mr. P. A. Taylor, the Radical leader, as vice-chairman.[99] The committee (in January 1866) took the opinions of Fitzjames and Mr. Edward James as to the proper mode of invoking the law. Fitzjames drew the opinion, which was signed by Mr. James and himself.[100] After the report of the Commission (April 1866), which showed that excesses had been committed, the committee acted upon this opinion.
From Fitzjames's letters written at the time, I find that his study of the papers published by the Commission convinced him that Governor Eyre had gone beyond the proper limits in his behaviour towards Gordon. The governor, he thought, had been guilty of an 'outrageous stretch of power,' and had hanged Gordon, not because it was necessary to keep the peace, but because it seemed to be expedient on general political grounds. This was what the law called murder, whatever the propriety of the name. Fitzjames made an application in January 1867 before Sir Thomas Henry, the magistrate at Bow Street, to commit for trial the officers responsible for the court-martial proceedings (General Nelson and Lieutenant Brand) on the charge of murder. In March he appeared before the justices at Market Drayton, in Shropshire, to make a similar application in the case of Governor Eyre. He was opposed by Mr. (the late Lord) Hannen at Bow Street, and by Mr. Giffard (now Lord Halsbury) at Market Drayton. The country magistrates dismissed the case at once; but Sir Thomas Henry committed Nelson and Brand for trial. Mr. Lushington tells me that Sir Thomas Henry often spoke to him with great admiration of Fitzjames's powerful argument on the occasion. On April 10, [1867], the trial of Nelson and Brand came on at the Old Bailey, when Chief Justice Cockburn delivered an elaborate charge, taking substantially the view of the law already expounded by Fitzjames. The grand jury, however, threw out the bill.