Walker & Boutalls Ph. Sc.
From a Photograph by Bassano, 1886
London. Published by Smith Elder & Co 15. Waterloo Place.

The last phrase alludes to a conversation overheard at the assizes between two workmen. One of them described the judge, the late Lord Chief Justice Cockburn, as a 'cheery swine' who, as he affirmed, had gone to church and preached a sermon an hour and a half long. The sheriff, too, was there in a red coat, and had no doubt got his place by interest. 'Pomp and 'umbug I calls it, and we poor chaps pays for it all.' Fitzjames heartily enjoyed good vernacular embodiments of popular imagination. He admitted that he was not quite insensible to the pleasures of pomp and humbug as represented by javelin men and trumpeters. His work, as my quotation indicates, included some duties that were trivial and some that were repulsive. In spite of all, however, he thoroughly enjoyed his position. He felt that he was discharging an important function, and was conscious of discharging it efficiently. There are few greater pleasures, certainly few were greater to him, than the exercise of a craft which one has so mastered as to have lost all the embarrassment of a beginner. He felt that he was not only up to his duties but had superfluous energy to direct elsewhere. The pleasantest hours of the day were those before and after business hours, when he could devote himself to his literary plans.

In some of his letters to Lord Lytton about the time of his appointment, I find unusual confessions of weariness. He admits that there is a difference between forty and fifty; and thinks he has not quite the old elasticity. I believe, however, that this refers to the worry caused by his work on the Commission, and the daily wrangle over the precise wording of the code, while the judgeship was not yet a certainty. At any rate there is no more mention of such feelings after a time; and in the course of the summer he was once more taking up an important literary scheme which would have tasked the energies of the youngest and strongest. He seems to have contemplated for a time a series of books which should cover almost the whole field of English law and be a modern substitute for Blackstone. The only part of this actually executed—but that part was no trifle—was another book upon the English Criminal Law. It was, in truth, as he ventured to say, 'a remarkable achievement for a busy man to have written at spare moments.' We must, of course, take into account his long previous familiarity with the law. The germ of the book is to be found in the Essay of 1857; and in one way or other, as a writer, a barrister, a codifier, and a judge, he had ever since had the subject in his mind. It involved, however, along with much that was merely recapitulation of familiar topics, a great amount of laborious investigation of new materials. He mentions towards the end of the time that he has been working at it for eight hours a day during his holiday in Ireland. The whole was finished in the autumn of 1882, and it was published in the following spring.

Fitzjames explains in his preface how the book had come to be written. He had, as I have said, laid aside the new edition of the original 'View' in order to compile the 'Digest,' which he had felt to be its necessary complement. I may add that he also wrote with the help of his eldest son—now Sir Herbert Stephen—a 'Digest of the Law of Criminal Procedure,' which was published contemporaneously with the 'History.' The 'Digest' had led to the code and to the Commission. When the Commission was over, he returned to the proposed new edition of the 'View.' But Fitzjames seems to have had an odd incapacity for producing a new edition. We, who call ourselves authors by profession, are sometimes tempted, and we do not always resist the temptation, to describe a book as 'revised and corrected' when, in point of fact, we have added a note or two and struck out half a dozen obvious misprints. When Fitzjames said that his earlier treatise might be described as 'in some sense a first edition' of the later, he meant that he had written an entirely new book upon a different aspect of the old subject. The 'View' is in one volume of about 500 pages, nearly a third of which (153 pages) consists of reports of typical French and English trials. These are reprinted in the 'History.' Of the remainder, over 100 pages are devoted to the Law of Evidence, which is not discussed in the 'History.' Consequently the first 233 pages of the 'View' correspond to the whole of the three volumes of the 'History,' which, omitting the reported trials given in both books, contain 4,440 pages. That is, the book has swelled to six times the original size, and I do not think that a single sentence of the original remains. With what propriety this can be called a 'new edition' I will not try to decide.

The cause of this complete transformation of the book is significant. Fitzjames, in his preface, observes that much has been said of the 'historical method' of late years. It has, he agrees, 'thrown great light upon the laws and institutions of remote antiquity.' Less, however, has been done for modern times; although what is called 'constitutional history' has been 'investigated with admirable skill and profound learning.' As I have noticed, his original adherence to the theories of Bentham and Austin had tended to make him comparatively indifferent to the principles accepted and illustrated by the writings of Maine. He had looked at first with some doubts upon those performances and the brilliant generalisations of 'Ancient Law' and its successors. He quotes somewhere a phrase of his friend Bowen, who had said that he read Maine's works with the profoundest admiration for the genius of the author, but with just a faint suspicion somewhere in the background of his mind that the results might turn out to be all nonsense. Fitzjames had at any rate no prepossessions in favour of the method, and may be said to have been recruited, almost in spite of himself, by the historical school. But it was impossible for anyone to discuss the peculiarities of English Criminal Law without also being plunged into historical investigations. At every point the system is determined by the circumstances of its growth; and you can no more account for its oddities or its merits without considering its history than you can explain the structure of a bat or a seal without going back to previous forms of life. The growth of the criminal law, as Fitzjames remarks, is closely connected with the development of the moral sentiments of the community: with all the great political and social revolutions and with the changes of the ecclesiastical constitution and the religious beliefs of the nation. He was accordingly drawn into writing a history which may be regarded as complementary to the great constitutional histories of Hallam and Dr. Stubbs. He takes for granted many of their results, and frankly acknowledges all his obligations. But he had also to go through many investigations of his own special topics, and produced a history which, if I am not mistaken, is of the highest interest as bringing out certain correlative processes in the legal development of our institutions, which constitutional historians naturally left in the background.

His early work upon the similar book suggested by his father had made him more or less familiar with some of the original sources. He now had to plunge into various legal antiquities, and to study, for example, the six folio volumes called Rotuli Parliamentorum; to delve in year-books and old reports and the crabbed treatises of ancient lawyers, and to consider the precise meaning and effect of perplexed and obsolete statutes. He was not an antiquary by nature, for an antiquary, I take it, is one who loves antiquity for its own sake, and enjoys a minute inquiry almost in proportion to its minuteness. Fitzjames's instinct, on the contrary, was to care for things old or new only so far as they had some distinct bearing upon living problems of importance. I could not venture to pronounce upon the value of his researches; but I am happily able to give the opinion of Professor Maitland, who can speak as one having authority. 'About the excellence of your brother's History of English Criminal Law,' he writes to me, 'there can, I suppose, be but one opinion among those who are competent to speak of such a matter. But I think that he is scarcely likely to get all the credit that is due to him for certain parts of the work which are especially interesting to me, and which I have often read—I mean those parts which deal with the middle ages. They seem to me full of work which is both good and new. I take it that he had no great love for the middle ages, and wrote the chapters of which I am speaking as a disagreeable task. I do not think that he had from nature any great power of transferring himself or his readers into a remote age, or of thinking the thoughts of a time very different from that in which he lived: and yet I am struck every time I take up the book with the thoroughness of his work, and the soundness of his judgments. I would not say the same of some of his predecessors, great lawyers though they were, for in dealing with mediæval affairs they showed a wonderful credulity. To me it seems that he has often gone right when they went wrong, and that his estimate of historical evidence was very much sounder than theirs. The amount of uncongenial, if not repulsive labour that he must have performed when he was studying the old law-books is marvellous. He read many things that had not been used, at all events in an intelligent way, for a very long time past; and—so I think, but it is impertinent in me to say it—he almost always got hold of the true story.'

To write three thick volumes involving such inquiries within three years and a half; and to do the work so well as to deserve this praise from an accomplished legal antiquary, was by itself an achievement which would have contented the ambition of an average author. But when it is remembered that the time devoted to it filled only the interstices of an occupation which satisfies most appetites for work, and in which he laboured with conscientious industry, I think that the performance may deserve Professor Maitland's epithet, 'marvellous.' He was greatly interested in the success of the book, though his experience had not led him to anticipate wide popularity. It was well received by competent judges, but a book upon such a topic, even though not strictly a 'law-book,' can hardly be successful in the circulating-library sense of the word. Fitzjames, indeed, had done his best to make his work intelligible to the educated outsider. He avoided as much as possible all the technicalities which make the ordinary law-book a hopeless bewilderment to the lay reader, and which he regarded on all grounds with natural antipathy. The book can be read, as one outsider at least can testify, with strong and continuous interest; though undoubtedly the reader must be prepared to endure a little strain upon his attention.

There are, indeed, certain drawbacks. In spite of the abundant proofs of industry and knowledge, there are indications that a little more literary polish might have been advantageous. Some of the materials are so crabbed that hardly any skill could have divested them of their natural stiffness. As Professor Maitland's remarks indicate, Fitzjames did not love the old period for its own sake. He liked, as I have noticed, general histories, such as Gibbon's, which give a bird's-eye view of long periods and, in a sense, codify a great mass of knowledge. But he had not the imaginative power of reconstructing ancient states of society with all their picturesque incidents which was first exemplified by Scott. He was always interested in books that reveal human nature, and says in the 'History,' for example, that some of the State Trials are to him 'much more impressive than poetry or fiction.'[176] But the incidents do not present themselves to him, as they did to Scott or to Macaulay, as a series of vivid pictures with all their material surroundings. He shrank, more advisedly, perhaps, from another tendency which has given popularity to a different school. Though he gradually became an admirer of Maine's generalisations, founded upon cautious inquiries and recommended by extraordinary literary skill, his own intellectual aptitudes did not prompt him to become a rival. Briefly, his attitude of mind was in the strictest sense judicial. He asks always for distinct proofs and definite issues. He applies his canons of evidence to every statement that comes up, and, after examining it as carefully as he can, pronounces his conclusions, unequivocally but cautiously. He will not be tempted to a single step beyond the solid ground of verifiable fact. This undoubtedly gives confidence to the tolerably patient reader, who learns to respect the sobriety and impartiality of his guide. But it also fails to convince the hasty reader that he has seen the event precisely as it happened, or that he is in possession of a philosophical key to open all historical problems. I do not wish for a moment to underrate the value of work which has different qualities; but I do think that Fitzjames's merits as a solid inquirer may be overlooked by readers who judge a writer by the brilliance of his pictures and the neatness of his theories.

The book covers a very large field. A brief indication of its general plan will show how many topics are more or less treated. He begins with a short account of the Roman Criminal Law; and then of English law before the Conquest. He next takes up the history of all the criminal courts, including the criminal jurisdiction of the extraordinary courts, such as Parliament and the Privy Council. This is followed by a history of the procedure adopted in the courts, tracing especially the development of trial by jury. The second volume opens a discussion of certain principles applicable to crime in general, such as the theory of responsibility. Next follows a history of the law relating to crime in general. He then takes up the history of the principal classes of crime, considering in separate chapters offences against the state, treason, sedition, and seditious libels; offences against religion, offences against the person (this opens the third volume), especially homicide; offences against property, such as theft and forgery; offences relating to trade and labour and 'miscellaneous offences.' This finishes the history of the law in England, but he adds an account of the extension of the English criminal law to India; and this naturally leads to an exposition of his views upon codification. The exposition is mainly a reproduction of the report of the Commission of 1878-9, which was chiefly his own composition. Finally, the old reports of trials, with a few alterations, are appended by way of pointing the contrast between the English and the French methods, upon which he has already introduced some observations.

Mr. Justice Stephen's book, said Sir F. Pollock in a review of the day, is 'the most extensive and arduous' undertaken by any English lawyer since the days of Blackstone. So large a framework necessarily includes many subjects interesting not only to the lawyer but to the antiquary, the historian, and the moralist; and one effect of bringing them together under a new point of view is to show how different branches of inquiry reciprocally illustrate each other. The historian of the previous generation was content to denounce Scroggs and Jeffreys, or to lament the frequency of capital offences in the eighteenth century, and his moral, especially if he was a Whig, was our superiority to our great-grandfathers. There was plenty of room for virtuous indignation. But less attention was generally paid to the really interesting problems, how our ancestors came to adopt and to be content with these institutions; what precisely the institutions were, and how they were connected with other parts of the social framework. When an advance is made towards the solution of such problems, and when we see how closely they connect themselves with other problems, social, ecclesiastical, and industrial, as well as political, we are making also a step towards an intelligent appreciation of the real meaning of history. It is more than a collection of anecdotes, or even, as Carlyle put it, than the essence of a multitude of biographies; it becomes a study of the growth of an organic structure; and although Fitzjames was reluctant, even to excess, to put forward any claim to be a philosophical historian, a phrase too often applied to a dealer in 'vague generalities,' I think that such work as his was of great service in providing the data for the truly philosophical historian who is always just on the eve of appearing.