James Fitzjames Stephen
Encyclopedia
Sir James Fitzjames Stephen, 1st Baronet (3 March 1829 - 11 March 1894) was an English
lawyer
, judge
and writer. He was created 1st Baronet Stephen by Queen Victoria
.
, London
, he was the son of James Stephen, the brother of author and critic Sir Leslie Stephen
, and the uncle of author Virginia Woolf
. He was educated at Eton College
, and for two years at King's College London
. In October 1847 he entered Trinity College, Cambridge
. Although an outstanding student he did not win any prizes, mainly because he was uninterested in mathematics or classics, which formed the basis of the course. He was already acquainted with Sir Henry Maine
, six years his senior, and then newly appointed to the Chair of civil law at Cambridge. Although their temperaments were very different, their acquaintance became a strong friendship, which ended only with Maine's death in 1888.
Stephen was introduced by Maine into the Cambridge society known as Cambridge Apostles
, forming friendships with some of its members. The society contained a remarkable group of men who afterwards became eminent in different ways: for example, developer of classical electromagnetic theory James Clerk Maxwell
and Liberal Party leader Sir William Harcourt
.
and a rather distinguished judge.
His legal career was a notable one: He was a member of the Viceregal Council and later Professor of Common Law at the Inns of Court
. He was largely occupied with official work on codification, the results of which were never used. He was, however, responsible for the Indian Evidence Act, 1872
. In 1879 he became a judge of the High Court.
In his earlier years at the bar he supplemented his income from a successful but modest practice with journalism. He contributed to the Saturday Review from the time it was founded in 1855. He was in company with Maine, Harcourt, G.S. Venables
, Charles Bowen, E.A. Freeman
, Goldwin Smith
and others. Both the first and the last books published by Stephen were selections from his papers in the Saturday Review (Essays by a Barrister, 1862, anonymous; Horae sabbaticae, 1892). These volumes embodied the results of his studies of publicists and theologians, chiefly English, from the 17th century onwards. He never professed his essays to be more than the occasional products of an amateur's leisure, but they were well received.
From 1858 to 1861, Stephen served as secretary to a Royal Commission
on popular education
, whose conclusions were promptly put into effect. In 1859 he was appointed Recorder of Newark
. In 1863 he published his General View of the Criminal Law of England, the first attempt made since William Blackstone
to explain the principles of English law
and justice in a literary form, and it enjoyed considerable success. The foundation of the Pall Mall Gazette
in 1865 gave Stephen a new literary avenue. He continued to contribute until he became a judge.
The decisive point of his career was in the summer of 1869, when he accepted the post of legal member of the Colonial Council in India. His friend Maine was his immediate predecessor: Guided by Maine's comprehensive talents, the government of India had entered a period of systematic legislation which was to last about twenty years. Stephen had the task of continuing this work by conducting the Bills through the Legislative Council. The Native Marriages Act
of 1872 was the result of deep consideration on both Maine's and Stephen's part. The Indian Contract Act
had been framed in England by a learned commission, and the draft was materially altered in Stephen's hands before, also in 1872, it became law.
of the same year, entirely Stephen's own work, made the rules of evidence uniform for all residents of India, regardless of caste, social position, or religion. Besides drafting legislation, at this time Stephen had to attend to the current administrative business of his department, and he took a full share in the general deliberations of the viceroy's council. His last official act in India was the publication of a minute on the administration of justice which pointed the way to reforms not yet fully realized, and is still a valuable tool for anyone wishing to understand the judicial system of British India.
Stephen, mainly for family reasons, came home in the spring of 1872. During the voyage he wrote a series of articles which resulted in his book Liberty, Equality, Fraternity (1873–1874)--a protest against John Stuart Mill
's neo-utilitarianism
. Most famously he attacked the thesis of J S Mill's essay "On Liberty
" and argued for legal compulsion, coercion and restraint in the interests of morality and religion. He stood in an 1873 by-election as a Liberal
for Dundee
, coming in last place.
's ideal of codification, he attempted to get the same principles put into practice in the United Kingdom. In spite of six years of effort on this task, Stephen was largely unsuccessful in making any reforms. Stephen also privately published digests in code form of the law of evidence and criminal law.
, and in 1878 the Digest of Criminal Law became a Ministerial Bill. This was referred to a judicial commission, which included Stephen. The revised Bill was introduced in 1879 and 1880. It dealt with procedure as well as substantive law, and provided for a court of criminal appeal (though after several years of judicial experience Stephen changed his mind as to the wisdom of this). However, no substantial progress was made during that session of Parliament. In 1883 the part relating to procedure was brought in separately, and went to the grand committee on law, who found there was not time to deal with it satisfactorily in the course of the session. Criminal appeal has since (1907) been dealt with; otherwise nothing has been done with either part of the draft code since. The historical materials which Stephen had long been collecting took permanent shape the same year (1883) as the History of the Criminal Law of England. A projected Digest of the Law of Contract (which would have been much fuller than the Indian Code) fell through for want of time. Thus none of Stephen's own plans of English codification took effect. The Parliament of Canada
used Stephen's principles to codify its criminal law in 1892 as the Criminal Code of Canada
.
in 1887 and Florence Maybrick
in 1889, Stephen continued performing his judicial duties. However, by early 1891 his declining capacity to exercise judicial functions had become a matter of public discussion and press comment, and following medical advice Stephen resigned in April of that year. Even during his final days on the bench, Stephen is reported to have been 'brief, terse and to the point, and as lucid as in the old days'. Having lost his intellectual power, however, 'as the hours wore on his voice dropped almost to a whisper'
Stephen died of chronic renal failure on 11 March 1894 at Red House Park, a nursing home near Ipswich
, and was buried at Kensal Green Cemetery
. His wife survived him.
He is the subject of the book James Fitzjames Stephen: Portrait of a Victorian Rationalist by Keith John Michael Smith.
An eleven-volume set of his collected writings is currently being prepared for Oxford University Press
by the Editorial Institute
at Boston University
.
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
, judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
and writer. He was created 1st Baronet Stephen by Queen Victoria
Victoria of the United Kingdom
Victoria was the monarch of the United Kingdom of Great Britain and Ireland from 20 June 1837 until her death. From 1 May 1876, she used the additional title of Empress of India....
.
Early life
Born in KensingtonKensington
Kensington is a district of west and central London, England within the Royal Borough of Kensington and Chelsea. An affluent and densely-populated area, its commercial heart is Kensington High Street, and it contains the well-known museum district of South Kensington.To the north, Kensington is...
, London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
, he was the son of James Stephen, the brother of author and critic Sir Leslie Stephen
Leslie Stephen
Sir Leslie Stephen, KCB was an English author, critic and mountaineer, and the father of Virginia Woolf and Vanessa Bell.-Life:...
, and the uncle of author Virginia Woolf
Virginia Woolf
Adeline Virginia Woolf was an English author, essayist, publisher, and writer of short stories, regarded as one of the foremost modernist literary figures of the twentieth century....
. He was educated at Eton College
Eton College
Eton College, often referred to simply as Eton, is a British independent school for boys aged 13 to 18. It was founded in 1440 by King Henry VI as "The King's College of Our Lady of Eton besides Wyndsor"....
, and for two years at King's College London
King's College London
King's College London is a public research university located in London, United Kingdom and a constituent college of the federal University of London. King's has a claim to being the third oldest university in England, having been founded by King George IV and the Duke of Wellington in 1829, and...
. In October 1847 he entered Trinity College, Cambridge
Trinity College, Cambridge
Trinity College is a constituent college of the University of Cambridge. Trinity has more members than any other college in Cambridge or Oxford, with around 700 undergraduates, 430 graduates, and over 170 Fellows...
. Although an outstanding student he did not win any prizes, mainly because he was uninterested in mathematics or classics, which formed the basis of the course. He was already acquainted with Sir Henry Maine
Henry James Sumner Maine
Sir Henry James Sumner Maine, KCSI , was an English comparative jurist and historian. He is famous for the thesis outlined in Ancient Law that law and society developed "from status to contract." According to the thesis, in the ancient world individuals were tightly bound by status to traditional...
, six years his senior, and then newly appointed to the Chair of civil law at Cambridge. Although their temperaments were very different, their acquaintance became a strong friendship, which ended only with Maine's death in 1888.
Stephen was introduced by Maine into the Cambridge society known as Cambridge Apostles
Cambridge Apostles
The Cambridge Apostles, also known as the Cambridge Conversazione Society, is an intellectual secret society at the University of Cambridge founded in 1820 by George Tomlinson, a Cambridge student who went on to become the first Bishop of Gibraltar....
, forming friendships with some of its members. The society contained a remarkable group of men who afterwards became eminent in different ways: for example, developer of classical electromagnetic theory James Clerk Maxwell
James Clerk Maxwell
James Clerk Maxwell of Glenlair was a Scottish physicist and mathematician. His most prominent achievement was formulating classical electromagnetic theory. This united all previously unrelated observations, experiments and equations of electricity, magnetism and optics into a consistent theory...
and Liberal Party leader Sir William Harcourt
William Vernon Harcourt (politician)
Sir William George Granville Venables Vernon Harcourt was a British lawyer, journalist and Liberal statesman. He served as Member of Parliament for various constituencies and held the offices of Home Secretary and Chancellor of the Exchequer under William Ewart Gladstone before becoming Leader of...
.
Law career
After leaving Cambridge, Fitzjames Stephen decided to go into law. He was called to the bar in 1854. His own estimation of his professional success—written in later years—was that in spite of such training rather than because of it, he became a moderately successful advocateAdvocate
An advocate is a term for a professional lawyer used in several different legal systems. These include Scotland, South Africa, India, Scandinavian jurisdictions, Israel, and the British Crown dependencies of Jersey, Guernsey and the Isle of Man...
and a rather distinguished judge.
His legal career was a notable one: He was a member of the Viceregal Council and later Professor of Common Law at the Inns of Court
Inns of Court
The Inns of Court in London are the professional associations for barristers in England and Wales. All such barristers must belong to one such association. They have supervisory and disciplinary functions over their members. The Inns also provide libraries, dining facilities and professional...
. He was largely occupied with official work on codification, the results of which were never used. He was, however, responsible for the Indian Evidence Act, 1872
Indian Evidence Act
The Indian Evidence Act, originally passed by the British parliament in 1872, contains a set of rules and allied issues governing admissibility of any evidence in the Indian courts of law. Before Indian Evidence Act,India was subjected to Personal Laws as correctly may be said that of Muslims and...
. In 1879 he became a judge of the High Court.
In his earlier years at the bar he supplemented his income from a successful but modest practice with journalism. He contributed to the Saturday Review from the time it was founded in 1855. He was in company with Maine, Harcourt, G.S. Venables
George Stovin Venables
George Stovin Venables , born in Wales, was a journalist and a barrister at the English bar.His father was Richard Venables, vicar of Nantmel and then archdeacon of Carmarthen. He was educated at Eton College, Charterhouse School, and Jesus College, Cambridge...
, Charles Bowen, E.A. Freeman
Edward Augustus Freeman
Edward Augustus Freeman was an English historian. His reputation as a historian rests largely on his History of the Norman Conquest , his longest completed book...
, Goldwin Smith
Goldwin Smith
Goldwin Smith was a British-Canadian historian and journalist.- Early years :He was born at Reading, Berkshire. He was educated at Eton College and Magdalen College, Oxford, and after a brilliant undergraduate career he was elected to a fellowship at University College, Oxford...
and others. Both the first and the last books published by Stephen were selections from his papers in the Saturday Review (Essays by a Barrister, 1862, anonymous; Horae sabbaticae, 1892). These volumes embodied the results of his studies of publicists and theologians, chiefly English, from the 17th century onwards. He never professed his essays to be more than the occasional products of an amateur's leisure, but they were well received.
From 1858 to 1861, Stephen served as secretary to a Royal Commission
Royal Commission
In Commonwealth realms and other monarchies a Royal Commission is a major ad-hoc formal public inquiry into a defined issue. They have been held in various countries such as the United Kingdom, Australia, Canada, New Zealand, and Saudi Arabia...
on popular education
Education
Education in its broadest, general sense is the means through which the aims and habits of a group of people lives on from one generation to the next. Generally, it occurs through any experience that has a formative effect on the way one thinks, feels, or acts...
, whose conclusions were promptly put into effect. In 1859 he was appointed Recorder of Newark
Newark-on-Trent
Newark-on-Trent is a market town in Nottinghamshire in the East Midlands region of England. It stands on the River Trent, the A1 , and the East Coast Main Line railway. The origins of the town are possibly Roman as it lies on an important Roman road, the Fosse Way...
. In 1863 he published his General View of the Criminal Law of England, the first attempt made since William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
to explain the principles of English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
and justice in a literary form, and it enjoyed considerable success. The foundation of the Pall Mall Gazette
Pall Mall Gazette
The Pall Mall Gazette was an evening newspaper founded in London on 7 February 1865 by George Murray Smith; its first editor was Frederick Greenwood...
in 1865 gave Stephen a new literary avenue. He continued to contribute until he became a judge.
The decisive point of his career was in the summer of 1869, when he accepted the post of legal member of the Colonial Council in India. His friend Maine was his immediate predecessor: Guided by Maine's comprehensive talents, the government of India had entered a period of systematic legislation which was to last about twenty years. Stephen had the task of continuing this work by conducting the Bills through the Legislative Council. The Native Marriages Act
Christian Law of Marriage in India
The Christian Law of Marriage in India is governed by the Indian Christian Marriage Act of 1872.Marriage, as is seen in Christian tradition, is not merely a civil contract nor is it purely a religious contract. It is seen as a contract according to the law of nature, antecedent to civil...
of 1872 was the result of deep consideration on both Maine's and Stephen's part. The Indian Contract Act
Indian Contract Act 1872
Indian Contract Act 1872 is the main source of law regulating contracts in Indian law, as subsequently amended.It determines the circumstances in which promise made by the parties to a contract shall be legally binding on them. All of us enter into a number of contracts everyday knowingly or...
had been framed in England by a learned commission, and the draft was materially altered in Stephen's hands before, also in 1872, it became law.
Indian Evidence Act
The Indian Evidence ActIndian Evidence Act
The Indian Evidence Act, originally passed by the British parliament in 1872, contains a set of rules and allied issues governing admissibility of any evidence in the Indian courts of law. Before Indian Evidence Act,India was subjected to Personal Laws as correctly may be said that of Muslims and...
of the same year, entirely Stephen's own work, made the rules of evidence uniform for all residents of India, regardless of caste, social position, or religion. Besides drafting legislation, at this time Stephen had to attend to the current administrative business of his department, and he took a full share in the general deliberations of the viceroy's council. His last official act in India was the publication of a minute on the administration of justice which pointed the way to reforms not yet fully realized, and is still a valuable tool for anyone wishing to understand the judicial system of British India.
Stephen, mainly for family reasons, came home in the spring of 1872. During the voyage he wrote a series of articles which resulted in his book Liberty, Equality, Fraternity (1873–1874)--a protest against John Stuart Mill
John Stuart Mill
John Stuart Mill was a British philosopher, economist and civil servant. An influential contributor to social theory, political theory, and political economy, his conception of liberty justified the freedom of the individual in opposition to unlimited state control. He was a proponent of...
's neo-utilitarianism
Utilitarianism
Utilitarianism is an ethical theory holding that the proper course of action is the one that maximizes the overall "happiness", by whatever means necessary. It is thus a form of consequentialism, meaning that the moral worth of an action is determined only by its resulting outcome, and that one can...
. Most famously he attacked the thesis of J S Mill's essay "On Liberty
On Liberty
On Liberty is a philosophical work by British philosopher John Stuart Mill. It was a radical work to the Victorian readers of the time because it supported individuals' moral and economic freedom from the state....
" and argued for legal compulsion, coercion and restraint in the interests of morality and religion. He stood in an 1873 by-election as a Liberal
Liberal Party (UK)
The Liberal Party was one of the two major political parties of the United Kingdom during the 19th and early 20th centuries. It was a third party of negligible importance throughout the latter half of the 20th Century, before merging with the Social Democratic Party in 1988 to form the present day...
for Dundee
Dundee (UK Parliament constituency)
Dundee was a constituency of the House of Commons of the Parliament of the United Kingdom from 1832 to 1950, when it was split into Dundee East and Dundee West....
, coming in last place.
Application of Indian laws in the United Kingdom
Experience in India gave Stephen opportunity for his next activity. The government of India had been driven by the conditions of the Indian judicial system to recast a considerable part of the English law which had been informally imported. Criminal law procedure, and a good deal of commercial law, had been or were being put into easily understood language, intelligible to civilian magistrates. The rational substance of the law was preserved, while disorder and excessive technicalities were removed. Using Jeremy BenthamJeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...
's ideal of codification, he attempted to get the same principles put into practice in the United Kingdom. In spite of six years of effort on this task, Stephen was largely unsuccessful in making any reforms. Stephen also privately published digests in code form of the law of evidence and criminal law.
Judicial career
There were transient hopes of an Evidence Act being brought before ParliamentParliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
, and in 1878 the Digest of Criminal Law became a Ministerial Bill. This was referred to a judicial commission, which included Stephen. The revised Bill was introduced in 1879 and 1880. It dealt with procedure as well as substantive law, and provided for a court of criminal appeal (though after several years of judicial experience Stephen changed his mind as to the wisdom of this). However, no substantial progress was made during that session of Parliament. In 1883 the part relating to procedure was brought in separately, and went to the grand committee on law, who found there was not time to deal with it satisfactorily in the course of the session. Criminal appeal has since (1907) been dealt with; otherwise nothing has been done with either part of the draft code since. The historical materials which Stephen had long been collecting took permanent shape the same year (1883) as the History of the Criminal Law of England. A projected Digest of the Law of Contract (which would have been much fuller than the Indian Code) fell through for want of time. Thus none of Stephen's own plans of English codification took effect. The Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
used Stephen's principles to codify its criminal law in 1892 as the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
.
Personal life
He married Mary Richenda Cunningham on September 19, 1855. Their children included:- Katharine Stephen (1856–1924), Principal of Newnham College, Cambridge
- Herbert Stephen (1857–1932), who succeeded him in the baronetcy
- James Kenneth StephenJames Kenneth StephenJames Kenneth Stephen was an English poet, and tutor to Prince Albert Victor, eldest son of Albert Edward, Prince of Wales.-Early life:...
(1859-1892), a promising poet who died within his father's lifetime - Harry Lushington Stephen (1860–1945), appointed to the High Court of Calcutta in 1901, and became the 3rd baronet on the death of his eldest brother
Death and legacy
Stephen's final years were undermined first by physical and then steady mental decline. Despite largely unfounded accusations of unfairness and bias regarding the murder trials of Israel LipskiIsrael Lipski
Israel Lipski born Israel Lobulsk, was a convicted murderer of Polish-Jewish descent living in the East End of London. Lipski worked as an umbrella stick salesman, employing Harry Schmuss and Henry Rosenbloom...
in 1887 and Florence Maybrick
Florence Maybrick
Florence Elizabeth Maybrick was an American woman convicted in Great Britain of murdering her considerably older husband, James Maybrick.-Early life:...
in 1889, Stephen continued performing his judicial duties. However, by early 1891 his declining capacity to exercise judicial functions had become a matter of public discussion and press comment, and following medical advice Stephen resigned in April of that year. Even during his final days on the bench, Stephen is reported to have been 'brief, terse and to the point, and as lucid as in the old days'. Having lost his intellectual power, however, 'as the hours wore on his voice dropped almost to a whisper'
Stephen died of chronic renal failure on 11 March 1894 at Red House Park, a nursing home near Ipswich
Ipswich
Ipswich is a large town and a non-metropolitan district. It is the county town of Suffolk, England. Ipswich is located on the estuary of the River Orwell...
, and was buried at Kensal Green Cemetery
Kensal Green Cemetery
Kensal Green Cemetery is a cemetery in Kensal Green, in the west of London, England. It was immortalised in the lines of G. K. Chesterton's poem The Rolling English Road from his book The Flying Inn: "For there is good news yet to hear and fine things to be seen; Before we go to Paradise by way of...
. His wife survived him.
He is the subject of the book James Fitzjames Stephen: Portrait of a Victorian Rationalist by Keith John Michael Smith.
An eleven-volume set of his collected writings is currently being prepared for Oxford University Press
Oxford University Press
Oxford University Press is the largest university press in the world. It is a department of the University of Oxford and is governed by a group of 15 academics appointed by the Vice-Chancellor known as the Delegates of the Press. They are headed by the Secretary to the Delegates, who serves as...
by the Editorial Institute
Editorial Institute
The Editorial Institute at Boston University was founded in 2000 by Christopher Ricks and Geoffrey Hill with "the conviction that the textually sound, contextually annotated edition is central to the intellectual life of many disciplines." The primary aims of the Institute are to promote critical...
at Boston University
Boston University
Boston University is a private research university located in Boston, Massachusetts. With more than 4,000 faculty members and more than 31,000 students, Boston University is one of the largest private universities in the United States and one of Boston's largest employers...
.
Works
- General View of the Criminal Law of England (1863)
- Liberty, Equality, Fraternity (1873–1874)
- History of the Criminal Law of England (1883)
- The story of Nuncomar and the impeachment of Sir Elijah Impey Cornell University Library Historical Monographs Collection. {Reprinted by} Cornell University Library Digital Collections