He reached Suez on May 5, and on the way home resolved at last to knock off work and have a little time for reflection on the past and the future. India, he says, has been 'a sort of second University course' to him. 'There is hardly any subject on which it has not given me a whole crowd of new ideas, which I hope to put into shape,' and communicate to the world. On May 12 he reached Paris, where he met his wife; and on the 14th was again in England, rejoicing in a cordial reception from his family and his old friends. The same evening he sees his cousin Mrs. Russell Gurney and her husband; and his uncle and aunt, John and Emelia Venn. Froude met him next day in the pleasantest way, and Maine and he, as he reports, were 'like two schoolboys.' On the 15th he went to his chambers and called upon Greenwood at the 'Pall Mall Gazette' office. He had written an article on the way from Paris which duly appeared in next day's paper. Not long after his return he attended a dinner of his old Cambridge club, with Maine in the chair. In proposing Maine's health he suggested that the legislation passed in India during the rule of his friend and himself should henceforth be called the 'Acts of the Apostles.'
One of the greatest pleasures upon reaching home was to find that his mother showed less marks of increasing infirmity than he had expected from the accounts in letters. She was still in full possession of her intellectual powers, and though less able than of old to move about, was fully capable of appreciating the delight of welcoming back the son who had filled so much of her thoughts. I may here note that Fitzjames's happiness in reviving the old bonds of filial affection was before long to be clouded. His uncle, Henry Venn, died on January 13, 1873, and he writes on the 30th: 'somehow his life was so bold, so complete, and so successful, that I did not feel the least as if his death was a thing to be sad about,' sad as he confesses it to be in general to see the passing away of the older generation. 'My dear mother,' he adds, 'is getting visibly weaker, and it cannot now be a very long time before she goes too. It is a thought which makes me feel very sad at times, but no one ever had either a happier life or a more cheerful and gallant spirit. She does not care to have us to dinner now; but we all see her continually; I go perhaps every other day, and Mary nearly every day.'
His mother was to survive two years longer. Her strong constitution and the loving care of the daughter who lived with her supported her beyond the anticipation of her doctors. There are constant references to her state in my brother's letters. The old serenity remained unchanged to the last. She suffered no pain and was never made querulous by her infirmities. Slowly and gradually she seemed to pass into a world of dreams as the decay of her physical powers made the actual world more indistinct and shadowy. The only real subject for regret was the strain imposed upon the daughter who was tenderly nursing her, and doing what could be done to soothe her passage through the last troubles she was to suffer. It was as impossible to wish that things should be otherwise as not to feel the profound pathos of the gentle close to long years of a most gentle and beautiful life. Fitzjames felt what such a son should feel for such a mother. It would be idle to try to put into explicit words that under-current of melancholy and not the less elevating thought which saddened and softened the minds of all her children. Her children must be taken to include some who were children not by blood but by reverent affection. She died peacefully and painlessly on February 27, 1875. She was buried by the side of her husband and of two little grandchildren, Fitzjames's infant daughter and son, who had died before her.
I now turn to the work in which Fitzjames was absorbed almost immediately after his return to England. He had again to take up his profession. He was full of accumulated reflections made in India, which he had not been able to discharge through the accustomed channel of journalism during his tenure of office; and besides this he entertained hopes, rather than any confident belief, that he would be able to induce English statesmen to carry on in their own country the work of codification, upon which he had been so energetically labouring in India. Before his departure he had already been well known to many distinguished contemporaries. But he came home with a decidedly higher reputation. In the natural course of things, many of his contemporaries had advanced in their different careers, and were becoming arbiters and distributors of reputation. His Indian career had demonstrated his possession of remarkable energy, capable of being applied to higher functions than the composition of countless leading articles. He was henceforward one of the circle—not distinguished by any definite label but yet recognised among each other by a spontaneous freemasonry—which forms the higher intellectual stratum of London society; and is recruited from all who have made a mark in any department of serious work. He was well known, of course, to the leaders of the legal profession; and to many members of Government and to rising members of Parliament, where his old rival Sir W. Harcourt was now coming to the front. He knew the chief literary celebrities, and was especially intimate with Carlyle and Froude, whom he often joined in Sunday 'constitutionals.' His position was recognised by the pleasant compliment of an election to the 'Athenæum' 'under Rule II.,' which took place at the first election after his return (1873). He had just before (November 1872) been appointed counsel to the University of Cambridge. Before long he had resumed his place at the bar. His first appearance was at the Old Bailey in June 1872, where he 'prosecuted a couple of rogues for Government.' He had not been there since he had held his first brief at the same place eighteen years before, and spent his guinea upon the purchase of a wedding ring. He was amused to find himself after his dignified position in India regarded as a rather 'promising young man' who might in time be capable of managing an important case. The judge, he says, 'snubbed' him for some supposed irregularity in his examination of a witness, and did not betray the slightest consciousness that the offender had just composed a code of evidence for an empire. He went on circuit in July, and at Warwick found himself in his old lodgings, writing with his old pen, holding almost the same brief as he had held three years before, before the same judge, listening to the same church bells, and taking the walk to Kenilworth Castle which he had taken with Grant Duff in 1854. Although the circuit appears to have been unproductive, business looked 'pretty smiling in various directions.' John Duke Coleridge, afterwards Lord Chief Justice, was at this time Attorney-General. Fitzjames differed from him both in opinions and temperament, and could not refrain from an occasional smile at the trick of rather ostentatious self-depreciation which Coleridge seemed to have inherited from his great-uncle. There was, however, a really friendly feeling between them both now and afterwards; and Coleridge was at this time very serviceable. He is 'behaving like a good fellow,' reports Fitzjames July 5, and is 'sending Government briefs which pay very well.' By the end of the year Fitzjames reports 'a very fair sprinkling of good business.' All his old clients have come back, and some new ones have presented themselves. There were even before this time some rumours of a possible elevation to the bench; but apparently without much solid foundation. Meanwhile, he was also looking forward to employment in the direction of codification. He had offered, when leaving India, to draw another codifying bill (upon 'Torts') for his successor Hobhouse. This apparently came to nothing; but there were chances at home. 'I have considerable hopes,' he says (June 19, 1872), 'of getting set to work again after the manner of Simla or Calcutta.' There is work enough to be done in England to last for many lives; and the Government may perhaps take his advice as to the proper mode of putting it in hand. He was soon actually at work upon two bills, which gave him both labour and worry before he had done with them. One of these was a bill upon homicide, which he undertook in combination with Russell Gurney, then recorder of London. The desirability of such a bill had been suggested to Gurney by John Bright, in consequence of a recent commission upon Capital Punishment. Gurney began to prepare the work, but was glad to accept the help of Fitzjames, whose labours had made him so familiar with the subject. Substantially he had to adapt part of the Penal Code, which he must have known by heart, and he finished the work rapidly. He sent a copy of the bill to Henry Cunningham on August 15, 1872, when it had already been introduced into Parliament by R. Gurney and read a first time. He sees, however, no chance of getting it seriously discussed for the present. One reason is suggested in the same letter. England is a 'centre of indifference' between the two poles, India and the United States. At each pole you get a system vigorously administered and carried to logical results. 'In the centre you get the queerest conceivable hubblebubble, half energy and half impotence, and all scepticism in a great variety of forms.' The homicide bill was delayed by Russell Gurney's departure for America on an important mission in the following winter, but was not yet dead. One absurd little anecdote in regard to it belongs to this time. Fitzjames had gone to stay with Froude in a remote corner of Wales; and wishing to refer to the draft, telegraphed to the Recorder of London: 'Send Homicide Bill.' The official to whom this message had to be sent at some distance from the house declined to receive it. If not a coarse practical joke, he thought it was a request to forward into that peaceful region a wretch whose nickname was too clearly significant of his bloodthirsty propensities.
Fitzjames mentions in the same letter to Cunningham that he has just finished the 'introduction' to his Indian Evidence Act. This subject brought him further occupation. He had more or less succeeded in making a convert of Coleridge. 'If this business with Coleridge turns out right,' he says (October 2), 'I shall have come home in the very nick of time, for there is obviously going to be a chance in the way of codification which there has not been these forty years, and which may never occur again.' Had he remained in India, he might have found the new viceroy less favourable to his schemes than Lord Mayo had been, and would have at any rate missed the chance of impressing the English Government at the right time. On November 29 he writes again to Cunningham, and expresses his disgust at English methods of dealing with legislation. He admits that 'too much association with old Carlyle, with whom I walk most Sundays,' may have made him 'increasingly gloomy.' But 'everything is so loose, so jarring, there is such an utter want of organisation and government in everything, that I feel sure we shall have a great smash some day.' A distinguished official has told him—and he fully believes it—that the Admiralty and the War Office would break down under a week's hard pressure. He observes in one article of the time that his father had made the same prophecy before 1847. He often quotes his father for the saying, 'I am a ministerialist.' Men in office generally try to do their best, whatever their party. But men in opposition aim chiefly at thwarting all action, good or bad, and a parliamentary system gives the advantage to obstruction. Part of his vexation, he admits, is due to his disgust at the treatment of the codification question. Coleridge, it appears, had proposed to him 'months ago' that he should be employed in preparing an Evidence Bill. Difficulties had arisen with Lowe, the Chancellor of the Exchequer, as to the proper fee. Fitzjames was only anxious now to get the thing definitively settled on any terms and put down in black and white. The Government might go out at any moment, and without some agreement he would be left in the lurch. It was 'excessively mortifying, ... and showed what a ramshackle concern our whole system' was. Definite instructions, however, to prepare the bill were soon afterwards given. On December 20 he writes that the English Evidence Bill is getting on famously. He hopes to have it all ready before Parliament meets, and it may probably be read a second time, though hardly passed this year. It was in fact finished, as one of his letters shows, by February 7, 1873.
II. 'LIBERTY, EQUALITY, FRATERNITY'
Meanwhile, however, he had been putting much energy into another task. He had for some time delivered his tale of articles to the 'Pall Mall Gazette' as of old. He was soon to become tired of anonymous journalism; but he now produced a kind of general declaration of principles which, though the authorship was no secret and was soon openly acknowledged, appeared in the old form, and, as it turned out, was his last work of importance in that department. It was in some ways the most characteristic of all his writings. He put together and passed through the 'Pall Mall Gazette' during the last months of 1872 and January 1873 the series of articles already begun during his voyage. They were collected and published with his name in the following spring as 'Liberty, Equality, Fraternity.' I confess that I wondered a little at the time that the editor of a newspaper should be willing to fill his columns with so elaborate a discourse upon first principles; and I imagine that editors of the present day would be still more determined to think twice before they allowed such latitude even to the most favoured contributor. I do not doubt, however, that Mr. Greenwood judged rightly. The letters were written with as much force and spirit as anything that Fitzjames ever produced. I cannot say how they affected the paper, but the blows told as such things tell. They roused the anger of some, the sympathy of others, and the admiration of all who liked to see hard hitting on any side of a great question. The letters formed a kind of 'Apologia' or a manifesto—the expression, as he frequently said, of his very deepest convictions. I shall therefore dwell upon them at some length, because he had never again the opportunity of stating his doctrines so completely. Those doctrines are far from popular, nor do I personally agree with them. They are, however, characteristic not merely of Fitzjames himself, but of some of the contemporary phases of opinion. I shall therefore say something of their relation to other speculations; although for my purpose the primary interest is the implied autobiography.
The book was perhaps a little injured by the conditions under which it was published. A series of letters in a newspaper, even though, as in this case, thought out some time beforehand, does not lend itself easily to the development of a systematic piece of reasoning. The writer is tempted to emphasise unduly the parts of his argument which are congenial to the journalistic mode of treatment. It is hard to break up an argument into fragments, intended for separate appearance, without somewhat dislocating the general logical framework. The difficulty was increased by the form of the argument. In controverting another man's book, you have to follow the order of his ideas instead of that in which your own are most easily expounded. Fitzjames, indeed, gives a reason for this course. He accepts Mill's 'Liberty' as the best exposition of the popular view. Acknowledging his great indebtedness to Mill, he observes that it is necessary to take some definite statement for a starting point; and that it is 'natural to take the ablest, the most reasonable, and the clearest.' Mill, too, he says, is the only living author with whom he 'agrees sufficiently to argue with him profitably.' He holds that the doctrines of Mill's later books were really inconsistent with the doctrines of the 'Logic' and 'Political Economy.' He is therefore virtually appealing from the new Utilitarians to the old. 'I am falling foul,' he says in a letter, 'of John Mill in his modern and more humane mood—or, rather, I should say, in his sentimental mood—which always makes me feel that he is a deserter from the proper principles of rigidity and ferocity in which he was brought up.' Fitzjames was thus writing as an orthodox adherent of the earlier school. He had sat at the feet of Bentham and Austin, and had found the most congenial philosophy in Hobbes. And yet his utilitarianism was mingled with another strain; and one difficulty for his readers is precisely that his attack seems to combine two lines of argument not obviously harmonious. Still, I think that his main position is abundantly clear.
Fitzjames—as all that I have written may go to prove—was at once a Puritan and a Utilitarian. His strongest sympathies and antipathies were those which had grown up in the atmosphere of the old evangelical circle. On this side, too, he had many sympathies with the teaching of Carlyle, himself a spiritual descendant of the old Covenanters. But his intellect, as I have also remarked, unlike Carlyle's, was of the thoroughly utilitarian type. Respect for hard fact, contempt for the mystical and the dreamy; resolute defiance of the à priori school who propose to override experience by calling their prejudices intuitions, were the qualities of mind which led him to sympathise so unreservedly with Bentham's legislative theories and with Mill's 'Logic.' Let us, before all things, be sure that our feet are planted on the solid earth and our reason guided by verifiable experience. All his studies, his legal speculations, and his application of them to practice, had strengthened and confirmed these tendencies. How were they to be combined with his earlier prepossessions?
The alliance of Puritan with utilitarian is not in itself strange or unusual. Dissenters and freethinkers have found themselves side by side in many struggles. They were allied in the attack upon slavery, in the advocacy of educational reforms, and in many philanthropic movements of the early part of this century. James Mill and Francis Place, for example, were regarded as atheists, and were yet adopted as close philanthropic allies by Zachary Macaulay and by the quaker William Allen. A common antipathy to sacerdotalism brought the two parties together in some directions, and the Protestant theory of the right of private judgment was in substance a narrower version of the rationalist demand for freedom of thought. Protestantism in one aspect is simply rationalism still running about with the shell on its head. This gives no doubt one secret of the decay of the evangelical party. The Protestant demand for a rational basis of faith widened among men of any intellectual force into an inquiry about the authority of the Bible or of Christianity. Fitzjames had moved, reluctantly and almost in spite of himself, very far from the creed of his fathers. He could not take things for granted or suppress doubts by ingenious subterfuges. And yet, he was so thoroughly imbued with the old spirit that he could not go over completely to its antagonists. To destroy the old faith was still for him to destroy the great impulse to a noble life. He held in some shape to the value of his creed, even though he felt logically bound to introduce a 'perhaps.'