Fitzjames's powers were such as naturally gave him unsurpassed authority with juries in criminal cases. A distinguished advocate was about to defend a prisoner upon two similar counts before Fitzjames and another eminent judge. The man was really guilty: but, said the counsel, and his prediction was verified, I shall obtain a verdict of 'not guilty' before the other judge, but not before Stephen. In civil cases, I am told that an impartial estimate of his merits would require more qualification. The aversion to technicality and over-subtlety, to which I have so often referred, appears to have limited his powers. He did not enjoy for its own sake the process of finding a clue through a labyrinth of refined distinctions, and would have preferred a short cut to what seemed to him the substantial merits of the case. He might, for example, regard with some impatience the necessity of interpreting the precise meaning of some clause in a legal document which had been signed by the parties concerned as a matter of routine, without their attention being drawn to the ambiguities latent in their agreement. His experience had not made him familiar with the details of commercial business, and he had to acquire the necessary information rather against the grain. To be a really great lawyer in the more technical sense, a man must, I take it, have a mind full of such knowledge, and feel pleasure in exercising the dialectical faculty by which it is applied to new cases. In that direction Fitzjames was probably surpassed by some of his brethren; and he contributed nothing of importance to the elaboration of the more technical parts of the law. I find, however, that his critics are agreed in ascribing to him with remarkable unanimity the virtue of 'open-mindedness.' His trenchant way of laying down his conclusions might give the impression that they corresponded to rooted prejudices. Such prejudices might of course intrude themselves unconsciously into his mind, as they intrude into the minds of most of us. But no one could be more anxious for fair play in argument as in conduct. He would give up a view shown to be erroneous with a readiness which often seemed surprising in so sturdy a combatant. He spared no pains in acquiring whatever was relevant to a case; whether knowledge of unfamiliar facts or of legal niceties and previous judicial decisions. Though his mind was not stored with great masses of cases, he never grudged the labour of a long investigation. He aimed at seeing the case as a whole; and bringing out distinctly the vital issues and their relation to broad principles. He used to put the issues before the jury as distinctly as possible, and was then indifferent to their decision. In a criminal case he would have been inexpressibly shocked by a wrongful conviction, and would have felt that he had failed in his duty if a conviction had not taken place when the evidence was sufficient. In a civil case, he felt that he had done his work when he had secured fair play by a proper presentation of the question to the jury. His mastery of the laws of evidence would give weight to his opinion upon facts; though how far he might be open to the charge of cutting too summarily knots which might have been untied by more dexterity and a loving handling of legal niceties, is a question upon which I cannot venture to speak positively.
I will only venture to refer to two judgments, which may be read with interest even by the unprofessional, as vigorous pieces of argument and lucid summaries of fact. One is the case (1880) of the 'Attorney-General v. the Edison Telephone Company,'[191] in which the question arose whether a telephonic message was a telegram. If so, the Company were infringing the act which gave to the Post Office the monopoly of transmitting telegrams. It was argued that the telephone transmitted the voice itself, not a mere signal. Fitzjames pointed out that it might be possible to hear both the voice transmitted through the air and the sound produced by the vibrations of the wire. Could the two sounds, separated by an interval, be one sound? The legal point becomes almost metaphysical. On this and other grounds Fitzjames decided that a telephone was a kind of telegraph, and the decision has not been disturbed. The other case was that of the Queen v. Price,[192] tried at Cardiff in 1883. William Price, who called himself a Druid, was an old gentleman of singularly picturesque appearance who had burnt the body of his child in conformity, I presume, with what he took to be the rites of the Druids. He was charged with misdemeanour. Fitzjames gave a careful summary of the law relating to burials which includes some curious history. He concluded that there was no positive law against burning bodies, unless the mode of burning produced a nuisance. The general principle, therefore, applied that nothing should be a crime which was not distinctly forbidden by law. The prisoner was acquitted, and the decision has sanctioned the present practice of cremation. Fitzjames, as I gather from letters, was much interested in the quaint old Druid, and was gratified by his escape from the law.
IV. MISCELLANEOUS OCCUPATIONS
I have now described the most important labours which Fitzjames undertook after his appointment to a judgeship. Every minute of the first six years (1879-85) might seem to have been provided with ample occupation. Even during this period, however, he made time for a few short excursions into other matters, and though after 1885 he undertook no heavy task, he was often planning the execution of the old projects, and now and then uttering his opinions through the accustomed channels. He was also carrying on a correspondence, some of which has been kindly shown to me. The correspondence with Lord Lytton continued, though it naturally slackened during Lytton's stay in England, from 1880 to 1887. It revived, though not so full and elaborate as of old, when, in 1887, Lytton became ambassador at Paris. Fitzjames's old friend, Grant Duff, was Governor of Madras from 1881 to 1886, and during that period especially, Fitzjames wrote very fully to Lady Grant Duff, who was also a correspondent both before and afterwards. If I had thought it desirable to publish any number of these or the earlier letters, I might have easily swelled this book to twice or three times its size. That is one good reason for abstaining. Other reasons are suggested by the nature of the letters themselves. They are written with the utmost frankness, generally poured out at full speed in intervals of business or some spare moments of his so-called vacation. They made no pretensions to literary form, and approach much more to discursive conversations than to anything that suggests deliberate composition. Much of them, of course, is concerned with private matters which it would be improper to publish. A large part, again, discusses in an unguarded fashion the same questions of which he had spoken more deliberately in his books. There is no difference in the substance, and I have thought it only fair to him to take his own published version of his opinions, using his letters here and there where they incidentally make his views clearer or qualify sharp phrases used in controversy. I have, however, derived certain impressions from the letters of this period and from the miscellaneous articles of the same time; which I shall endeavour to describe before saying what remains to be said of his own personal history.
One general remark is suggested by a perusal of the letters. Fitzjames says frequently and emphatically that he had had one of the happiest of lives. In the last letter of his which I have seen, written, indeed, when writing had become difficult for him, he says that he is 'as happy as any man can be,' and had nothing to complain of—except, indeed, his illegible handwriting. This is only a repetition of previous statements at every period of his life. When he speaks of the twenty-five years of long struggle, which had enabled him to rise from the bar to the bench, he adds that they were most happy years, and that he only wishes that they could come over again. It is difficult, of course, to compare our lot with that of our neighbours. We can imagine ourselves surrounded by their circumstances, but we cannot so easily adopt their feelings. Fitzjames very possibly made an erroneous estimate of the pains and pleasures which require sensibilities unlike his own; and conversely it must be remembered that he took delight in what would to many men be a weariness of the flesh. The obviously sincere belief, however, in his own happiness proves at least one thing. He was thoroughly contented with his own position. He was never brooding over vexations, or dreaming of what might have been. Could he have been asked by Providence at any time, Where shall I place you? his answer would almost always have been, Here. He gives, indeed, admirable reasons for being satisfied. He had superabundant health and strength, he scarcely knew what it was to be tired, though he seemed always to be courting fatigue, or, if tired, he was only tired enough to enjoy the speedy reaction. His affections had a strength fully proportioned to his vigour of mind and body; his domestic happiness was perfect; and he had a small circle of friends both appreciative and most warmly appreciated. Finally, if the outside world was far from being all that he could wish, it was at least superabundantly full of interest. Though indifferent to many matters which occupy men of different temperament, he had quite enough not only to keep his mind actively engaged, but to suggest indefinite horizons of future inquiry of intense interest. He was in no danger of being bored or suffering from a famine of work. Under such conditions, he could not help being happy.
Yet Fitzjames's most decided convictions would have suited a thorough-going pessimist. Neither Swift nor Carlyle could have gone much beyond him in condemning the actual state of the political or religious condition of the world. Things, on the whole, were in many directions going from bad to worse. The optimist is apt to regard these views as wicked, and I do not know whether it will be considered as an aggravation or an extenuation of his offence that, holding such opinions, Fitzjames could be steadily cheerful. I simply state the fact. His freedom from the constitutional infirmities which embittered both the great men I have mentioned, and his incomparably happier domestic circumstances, partly account for the difference. But, moreover, it was an essential part of his character to despise all whining. There was no variety of person with whom he had less sympathy than the pessimist whose lamentations suggest a disordered liver. He would have fully accepted the doctrine upon which Mr. Herbert Spencer has insisted, that it is a duty to be happy. Moreover, the way to be happy was to work. Work, I might almost say, was his religion. 'Be strong and of a good courage' was the ultimate moral which he drew from doubts and difficulties. Everything round you may be in a hideous mess and jumble. That cannot be helped: take hold of your tools manfully; set to work upon the job that lies next to your hand, and so long as you are working well and vigorously, you will not be troubled with the vapours. Be content with being yourself, and leave the results to fate. Sometimes with his odd facility for turning outwards the ugliest side of his opinions, he would call this selfishness. It is a kind of selfishness which, if everyone practised it, would not be such a bad thing.
I must mention, though briefly, certain writings which represent his views upon religious matters: I have sufficiently indicated his position, which was never materially changed. His thoughts ran in the old grooves, though perhaps with a rather clearer perception of their direction. In June 1884 he published an article upon the 'Unknown and the Unknowable' in the 'Nineteenth Century,' declaring that Mr. Herbert Spencer's 'Unknowable' and Mr. Harrison's 'Humanity' were mere shadowy figments. 'Religion,' he maintains, will not survive theology. To this, however, he adds, with rather surprising calmness, that morality will survive religion. If the Agnostics and Positivists triumph, it will be transformed, not abolished. The Christian admiration for self-sacrifice, indeed, and the Christian mysticism will disappear, and it will turn out that the respectable man of the world and the lukewarm believer were after all in the right. Considering his own dislike to the mystic and the priestly view of things, this might almost seem to imply a reconciliation with the sceptics. He observes, indeed, in a letter that there is really little difference between himself and Mr. Harrison, except in Mr. Harrison's more enthusiastic view of human nature. But he confesses also that the article has given pleasure to his enemies and pain to his friends. Though his opinions, in short, are sceptical, the consequences seem to him so disagreeable that he has no desire to insist upon them. In fact, he wrote little more upon these topics. He was, indeed, afterwards roused to utterance by an ingenious attempt of Mr. Mivart to show a coincidence between full submission to the authority of the Catholic Church and an equal acceptance of the authority of reason. In a couple of articles in the 'Nineteenth Century' (October 1887 and January 1888), he argued with his old vigour that Mr. Mivart was in fact proposing to put a match in a powder barrel and expect half to explode and the other half to remain unaffected. This was his last encounter upon the old question of authority. In the same year (April and May 1888) he wrote two articles upon a book by which he was singularly interested, Professor Max Müller's 'Science of Thought'; he expounds Professor Max Müller's philology in the tone of an ardent disciple, but makes his own application to philosophy. I do not suppose that the teacher would accept all the deductions of his follower. Fitzjames, in fact, found in the 'Science of Thought' a scientific exposition of the nominalism which he had more or less consciously accepted from Hobbes or Horne Tooke. Max Müller, he says, in a letter, has been knocking out the bottom of all speculative theology and philosophy. Thought and language, as he understands his teacher to maintain, are identical. Now language is made up of about 120 roots combined in various ways. The words supposed to express more abstract conceptions, some of them highly important in theology, are mere metaphors founded upon previous metaphors, twisted and changed in meaning from century to century. Nothing remains but an almost absolute scepticism, for on such terms no certainty can be obtained. In a letter he states that the only problems which we can really solve are those of space and number; that even astronomy involves assumptions to which there are 'unanswerable objections'; that what is loosely called science, Darwinism, for example, is 'dubious in the extreme'; that theology and politics are so conjectural as to be practically worthless; and judicial and historical evidence little more than a makeshift. In short, his doctrine is 'scepticism directed more particularly against modern science and philosophy.' I do not take these hasty utterances as expressing a settled state of opinion. I only quote them as vehement expressions of an instinctive tendency. His strong conviction of the fallacies and immoralities of the old theological dogmatism was combined with an equally strong conviction of the necessity of some embodiment of the religious instincts and of the impotence of the scientific dogmatism to supply it. He therefore was led to a peculiar version of the not uncommon device of meeting the sceptic by a more thorough-going scepticism. It is peculiar because he scorned to take the further step of accepting a dogmatic belief on sceptical grounds; but it certainly left him in a position of which silence was, if I may say so, the only obvious expression of his feeling.
One curious illustration of his feelings is given by an utterance at the beginning of this period. Nobody had less tendency to indulge in versification. When a man has anything to say, he observes to Lord Lytton on one occasion, as an excuse for not criticising his friend adequately, 'I am always tempted to ask why he cannot say it in plain prose.' I find now that he once wrote some lines on circuit, putting a judgment into rhyme, and that they were read with applause at a dinner before the judges. They have disappeared; but I can quote part of his only other attempt at poetry. Tennyson's poem called 'Despair' had just appeared in the 'Nineteenth Century' for November 1881. The hero, it will be remembered, maddened by sermons about hell and by 'know-nothing' literature, throws himself into the sea with his wife and is saved by his preacher. The rescuer only receives curses instead of thanks. Fitzjames supplies the preacher's retort.[193] I give a part; omitting a few lines which, I think, verged too much on the personal:—
So you're minded to curse me, are you, for not having let you be,
And for taking the trouble to pull you out when your wife was drowned in the sea?
I'm inclined to think you are right—there was not much sense in it;
But there was no time to think—the thing was done in a minute.
You had not gone very far in; you had fainted where you were found,
You're the sort of fellow that likes to drown with his toe on the ground.
However, you turn upon me and my creed with all sorts of abuse,
As if any preaching of mine could possibly be of use
To a man who refused to see what sort of a world he had got
To live in and make the best of, whether he liked it or not.
I am not sure what you mean; you seem to mean to say
That believing in hell you were happy, but that one unfortunate day
You found out you knew nothing about it, whereby the troubles of life
Became at once too heavy to bear for yourself and your wife.
That sounds silly; so, perhaps, you may mean that all is wrong all round,
My creed and the know-nothing books, and that truth is not to be found—
That's sillier still: for, if so, the know-nothing books are right,
And you're a mere spiritless cur who can neither run nor fight,
Too great a coward to live and too great a coward to die,
Fit for nothing at all but just to sit down and cry.
. . . . . . . . .