by Simon Heffer
However, in time Stephen came to feel Mill’s logic was unequal to some of the realities of life to which Stephen wished to apply it, not least because another of Mill’s works – On Liberty – seemed to contradict it. These contradictions made Stephen take Mill on, after years of reverence and admiration: he had reviewed On Liberty in 1859 and expressed agreement with it. Stephen would, in the 1870s, seek to apply logic to jurisprudence, in a lengthy but futile attempt to codify the criminal law of England: he became one of the most significant and influential thinkers on the common law of the nineteenth century. His relationship with logic is more revealing, however, when applied to his social and political thought, since it exposes tensions between intellectuals about the perfectibility of the human condition and of society. However, as he would later write: ‘Mill seems to me to be one of those people whose logical and thinking power is quite out of all proportion to his seeing power. For the purpose of arranging his thoughts and putting them all in proper relation to each other, he is incomparable and unapproachable, but the quality of the thought itself seems to me to be exceedingly poor and thin. His whole concept of human nature appears to me to be a sort of unattractive romance, yet it is the romance of a man who, in some aspects, is very good.’22
Once his work as a man of letters had progressed, Stephen had turned to Mill as a mentor. He wrote to Mill in April 1864 to say that ‘I have long entertained a sort of notion of writing a book on the fundamental problems of religion and morals. I had the opportunity, though I have no settled scheme as to the form into which I should work it.’ He wished to write a book of ‘high importance and of permanent value’ and asked for ‘your candid opinion if whether from what you know of my writing you think it probable that I could produce such a book?’23 He volunteered to go to Blackheath to discuss ideas with the sage. Mill regarded this as a question ‘which it is very difficult, or rather impossible, to answer satisfactorily. There is no-one living of whom I would venture to affirm beforehand that he might be expected to work such a treatise on the fundamental problems of religion and morals that it would be good for him to give up a profession he likes and change his plans of life rather than not write it.’24 He thought ‘it could at the least contain a great deal that is valuable. But it deserves consideration whether even the best book that could be written in our day, on morals and religion generally, would do more good than may be done by the continual illustration and discussion of the leading points of these subjects, in connection with particular speculative or practical questions.’ Stephen was set back by this answer; he replied to Mill that ‘I think it probable that I shall decide to let matters take their course’.25
However, he and Mill continued to have cordial relations: he reviewed Mill’s writings favourably, and even asked him to return the compliment in May 1865 by writing him a testimonial for a vacancy for a readership in constitutional law and legal history under the Committee for Legal Education.26 As late as 1869 Stephen received with delight from his friend a new edition of works by Mill’s father, and in the same year urged Mill on in an argument with W. E. H. Lecky, the historian, about utilitarianism.27 He even wrote to Mill from India in 1871, to discuss points of interest in the codification of the laws of evidence in that country.28 On the same trip he was dissecting On Liberty as a preliminary for writing Liberty, Equality, Fraternity. Another incident had coloured Stephen’s feelings towards Mill, when the philosopher asked the lawyer for a legal opinion on the case of Governor Edward Eyre. Eyre had put down a rebellion in Jamaica with severity, imposing martial law and ordering 300 executions and many hundreds of floggings. There was outrage among liberals, led by Mill, when word of this reached London in late 1865. The opinion Mill and his fellow members of the Jamaica Committee sought was whether Eyre and General Nelson, the commander of the local garrison, might be tried for murder. Stephen felt they might, arguing that Eyre had behaved in a way that was ‘violent, tyrannical and imprudent to a degree which I had hardly imagined possible.’29
Stephen succeeded in having Nelson tried for murder, but a jury threw the case out. He failed to persuade a bench of magistrates that Eyre should be tried. Mill, however, refused to take no for an answer, which Stephen found wilful, obstinate and narrow-minded. Stephen started to see that Eyre, however excessive his actions had been, had been under severe pressure in managing a collapse of law and order; a collapse of the sort England might have come close to in the reform disturbances had the mob not been appeased. It vexed Stephen that Mill could not see the other side to the story, and exposed a limitation in his hero.
India changed many of his views. In May 1872 he told his sister-in-law Lady Egerton:
I returned to my Mill today, and fired more shots into him. It is curious that after being, so to speak, a devoted disciple and partisan of his, up to a certain point, I should have found it at last impossible to go on with him; but his politics and his morals are not mine at all, though I believe in and admire his logic, and his general notion of philosophy. I recollect about three or four years ago, I had a battle royal on these points with my brother Leslie, and we at last came to the conclusion that the real difference between us was that he thought better of mankind than I do. It is a long story, to show how this difference colours not only one’s politics, but one’s morals, and one’s religion too – but it does, and I am rather taken by the idea of making Mill’s later works the peg on which to hang the statement of a variety of doctrines on this subject, which I have been forming for many years. He has certainly given me a good broad mark to fire at.30
Writing to her from Cowes on 12 September 1872 he announced that ‘the most exclusive bit of journalism I have done is a set of articles which have not yet been, but which soon will be published about Liberty, Equality and Fraternity, falling foul to the best of my ability of John Mill – in his modern and most humane mood – or rather, I should say, in his sentimental mood, which always makes me feel that he is a sort of denier of the proper principles of rigidity and forcity in which he was brought up.’31 In his correspondence with his sister-in-law he made it clear he would not equivocate: ‘the morality of persecution depended on the truth of the doctrines’, for example.32
You ask, who is to determine what is true? I answer, everyone must determine for himself – and the result will be war and strife, which ought to be modified in its earnestness by the recollections of our fallibility. I do not believe in the possibility of devising a scheme whereby all human affairs can always be conducted harmoniously and well, though the people who conduct them are ignorant, weak and often wicked. You must choose between the evils of conflict and the evils of acquiescence in a bad state of things, and I think that of the two, the first is the smaller evil, if brave, honest and forbearing. Complete tolerance means perfect indifference, complete harmony is probably unattainable even by individuals, though a considerate approach may at times be made to it. All human life lies between the two, and may tend towards either. I had rather try after harmony by agreement as to what is true, than after indifference.
He was sensitive about an apparent remark of Emily Egerton’s about his treatment of Pilate, saying that that passage ‘was to show how Pilate must have looked upon Christ, not to show how I looked upon him. It is Mill’s great illustration of his doctrine about toleration.’ He admitted he had enjoyed writing the articles: ‘they are a very comprehensive declaration of opinion on many matters, and they have been a good deal noticed in England by various people.’ In February 1873 he affirmed to her that the articles ‘express, only in an understated form, the strongest convictions I have; convictions not the less strong because they are very vague, and consciously so. The older I grow, the more I realise the extent of our ignorance, the more valuable does the amount of light, if it can be called so, which remains to us, appear to me.’33 It was quickly decided to republish the articles as a book, and Lady Egerton read the proofs for him. He claimed that where they differed it was ‘rather a difference of colour than of substance. I t
hink I am quite as humane and public-spirited as my neighbours.’34
The book was not just the product of a close, critical and cynical rereading of On Liberty. It was also the result of several years’ brooding by Stephen on Britain after the Reform Act: on what the changes had meant not merely for the general public, but for those whom they elected, and therefore for the future direction of the country. His early adult life had been spent in a period of political uncertainty, from 1852 until the events of 1867, with the failed attempts at reform making the unfranchised more militant and aggressive. To a man as wedded to the idea of order as Stephen, this had been disturbing, and had put him, as a Liberal, firmly in the Adullamite camp. As he considered the reform question the contradictions of Mill’s position came home to him more and more acutely. This was a man who, as a Benthamite like himself, thought majority rule must be good because it meant the wishes of the greatest number were being executed: but Mill had also described the working classes as ‘habitual liars’ and in his Political Economy had observed: ‘As soon as any idea of equality enters the mind of an uneducated English working man, his head is turned by it. When he ceases to be servile he becomes insolent.’35
Stephen could understand this. In twenty years defending and prosecuting criminals, and latterly as a judge (he had sat as a recorder since 1868, and would in 1881 be advanced to the High Court Bench) he had seen human nature at its worst, and considered himself, with much justification, a connoisseur of that section of society in a way Mill could not pretend to be. (Once, however, on the Bench at Liverpool, he brought about astonishment when asking what the Grand National was.) He was not a forgiving man, and believed society drew insufficient distinction between right and wrong, not so much in its support of the former as in its lack of condemnation of the latter. That is why Stephen, in eventually joining the Bench, found his true vocation.
On 8 August 1868 he wrote to his wife that ‘I sat yesterday as “My Lord” for the first time in my life, and judged the people for five or six hours. It appears to me the very easiest work I ever did. It just takes all one’s attention, and saves one all the trouble of thinking, while one is at it, and it is rather interesting. I had a rare set of scoundrels before me, and had to give some heavy sentences. One old fellow (who had thrown vitriol into a man’s face, on account of a quarrel) made such a howling appeal for mercy in such a way that the jury, to my great disgust, let him off altogether, which shows what idiotic things juries will do at times.’36 He would describe a High Court judge as ‘the organ of the moral indignation of mankind’, and maintained some men were simply evil and had to be treated as such.37 His own views on religion were unconventional, but he saw the use of religion as a weapon of social control – though one progressively less effective as secularism took hold. In the absence of theological restraint, he believed a deal had to be made clear to the potential criminal: ‘Let him at least be plainly told what are the acts that will stamp him with infamy, hold him up to public execration, and bring him to the gallows, the gaol or the lash.’38
In his laudatory review of On Liberty Stephen had raised a caveat about Mill’s belief in the decay of individualism and the commensurate attraction of collectivism. This had, over the following thirteen or fourteen years, grown greatly in his mind, and formed one of the great themes of Liberty, Equality, Fraternity. So too did Stephen’s belief in legitimate authority as a bulwark against anarchy, which had seemed imminent at the time of the Hyde Park riots. This owed more to Thomas Hobbes, of whom Stephen was a profound admirer, than to anything in Mill’s intellectual compass. A man who revered Hobbes could not revere Mill. As John Morley later wrote, the book was ‘the first effective attack on Mill’s pontifical authority’.39 Stephen had a wit and bluntness in deploying it that minced his opponents: such as when he ruminated, in response to Mill’s saying that he would rather go to hell than worship a God who punished people by sending them there, on what Mill would say after being there for half an hour.
The book is not merely a shooting-down of Mill. It is an exploration of the three concepts in its title, and of the idea, predominant among liberals, that the perfectibility of the human condition was in sight. It repudiates the pursuit of perfection. In this, too, the former disciple of Mill acknowledges the force of the arguments of Hobbes: his main issue with Mill is that he could ever have harboured such optimistic notions as expressed in On Liberty about perfectibility. Ever the rationalist, Stephen saw the concept of authority in a State as based upon where the means to use force lay; a view informed by his belief that a substantial proportion of the population, crude and uneducated, would be compelled to understand the use of force against them as they would be compelled to understand little else.
In the opening paragraphs of Liberty, Equality, Fraternity Stephen depicts Mill as of the English school of Comte, and therefore the local spokesman of the creed of positivism. Thus the reader is warned that the optimistic take on human nature is specious, and the pursuit of perfection is a delusion. Stephen identified the cult of ‘Liberty, Equality, Fraternity’ as a religion, and stated plainly: ‘I do not believe it.’40 He said he was no adherent, either, of ‘Slavery, Caste or Hatred’; but felt that those who subscribed to the cult exaggerated its benefits and glossed over its failings. He also doubted whether a society that fully embraced the cult would be one ‘which a reasonable man ought to regard with enthusiasm’. Mill had created a philosophy that was ‘unsound’. And, although Stephen said he was proud – up to a point – to describe himself as one of Mill’s disciples, ‘there is a side of his teaching which is as repugnant as the rest of it is attractive to me, and this side has of late years become by far the most prominent.’ Mill had promulgated a ‘religious dogma’ of liberty, and his writings on the subjection of women and utilitarianism had exemplified what Stephen found objectionable about equality and fraternity too.41
Stephen considered himself a Liberal in politics, but his view of the human condition is suffused by a deep pessimism about his fellow man typical of the most profound Tory. ‘I cannot but think that many persons must share the feeling of disgust with which I for one have often read and listened to expressions of general philanthropy,’ he writes.42 ‘I know hardly anything in literature so nauseous as Rousseau’s expressions of love for mankind when read in the light of his confessions. “Keep your love to yourself, and do not daub me or mine with it,” is the criticism which his books always suggest to me.’ Frederic Harrison, the positivist who wrote a savage, and uncomprehending, review of Liberty, Equality, Fraternity, felt this confirmed Stephen as ‘an egotist and a misanthrope’.43
All Stephen saw, however, was the cant of calling the rest of the human race his brothers and sisters, since he was perfectly indifferent to the vast majority and found many others specifically objectionable. Mill’s rose-tinted vision of his fellow man granted him potential for improvement, provided he was given sufficient love and liberty – in Stephen’s analysis. He could not credit this as having any relationship to reality. ‘I further believe that between all classes of men there are and always will be real occasions of enmity and strife, and that even good men may be and often are compelled to treat each other as enemies either by the existence of conflicting interests which bring them into collision, or by their different ways of conceiving goodness.’44 As he put it elsewhere ‘the great defect of Mr Mill’s later writings seems to me to be that he had formed too favourable an estimate of human nature.’45 Some coercion was beneficial to the human spirit: learning to contend with it bred character and resourcefulness.
Stephen’s relationship with religion was complicated and almost grudging; but of one thing he was certain. The possibility of eternal damnation exercised some sort of constraint upon those in the lower orders who, faced with constant temptation, chose to resist it. ‘Though Christianity expresses the tender and charitable sentiments with passionate ardour, it also has a terrible side. Christian love is only for a time and on condition. It stops short at the gate
s of hell, and hell is an essential part of the whole Christian scheme.’46 In this sense the much-vaunted religion relied just as much on coercion to achieve its ends as any authoritarian, temporal, government. He ridiculed Mill for taking the other view: ‘A God who punished anyone at all, except for the purpose of protecting others, would, upon his principles, be a tyrant trampling on liberty.’47 He saw Mill’s doctrine as immoral, contending that he thought it would be good on the Day of Judgement to say that ‘I pleased myself and hurt nobody else’.
Stephen’s view of society is, for all his criticisms of Carlyle, deeply Carlylean. Good is only achieved by coercion, not by laissez-faire. He cites numerous historical precedents for this view, back to the English civil wars and the Reformation. He argues Britain only had something resembling a cohesive society because people had been coerced into it, and had come to accept the value of institutions established by coercion. This left him at odds with a society shaped by the consequences of the 1867 Reform Act; but in which it amused him to find coercion being carried on, as he saw it, by other means.
‘Parliamentary government’, he wrote, surveying the status quo post, ‘is simply a mild and disguised form of compulsion. We agree to try strength by counting heads instead of breaking heads, but the principle is exactly the same.’48 Echoing Carlyle, consciously or unconsciously, he added that on any question it is not the wisest side that wins, but the one that has shown superior strength by drumming up the most support. ‘The minority gives way not because it is convinced that it is wrong, but because it is convinced that it is a minority.’ In the past, great men had emerged as leaders because they had the strategic sense to suppress anarchy and unite a polity. He cites Charlemagne as an example but also teases his critics by citing Abraham Lincoln, already a liberal demigod, as another. ‘President Lincoln attained his objects by the use of a degree of force which would have crushed Charlemagne and his paladins and peers like so many eggshells.’49 A civilised society could still use force, but had to be more careful than a rough one in how it did so.