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STEPHEN, SIR JAMES FITZJAMES, BART

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Originally appearing in Volume V25, Page 885 of the 1911 Encyclopedia Britannica.
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STEPHEN, See also:SIR See also:JAMES FITZJAMES, See also:BART . (1829—1894), See also:English lawyer, See also:judge and publicist, was See also:born in See also:London on the 3rd of See also:March 1829, the third See also:child and second son of Sir James Stephen (q.v.). Fitzjames Stephen was for three years (1842—1845) at See also:Eton, and for two years at See also:King's See also:College, London. In See also:October 1847 he entered at Trinity College, See also:Cambridge. Notwithstanding exceptional vigour in mind and See also:body, he did not attain any of the usual scholastic or athletic distinctions. The only studies then seriously prosecuted in the university course were See also:mathematics and See also:classics. Neither of these attracted him in their academical forms, nor did he care for competitive See also:sport. But his Cambridge See also:time was fruitful in other ways. He was already acquainted with Sir See also:Henry See also:Maine (q.v.), six years his See also:senior, and then newly appointed to the See also:chair of See also:civil See also:law. This acquaintance now ripened into a perfect friend-See also:ship, which ended only with Maine's See also:death in 1888. No two men's intellectual tempers ever presented a stronger contrast. As Stephen himself said, it took them a See also:long time to know when they really agreed.

Maine was subtle, See also:

swift and far-reaching; Stephen was massive, downright, indefatigable and sincere even to unnecessary frankness. Their qualities were an almost exact See also:complement of one another, but neither of them would take opinions on See also:trust, or acquiesce in See also:common-See also:place methods of avoiding difficulties; and it might have been said of either of them without exaggeration that, if all his technical and professional requirements could be taken away, a born See also:man of letters would be See also:left. By Maine's introduction, Stephen became a member of the Cambridge society known as the Apostles, in See also:form not very different from many other See also:essay See also:societies, in substance a body with an unformulated but most individual tradition of open-mindedness and See also:absolute mutual tolerance in all matters of See also:opinion. Perhaps the See also:golden See also:age of the society was a few years before Stephen's See also:election, but it still contained a remarkable See also:group of men who afterwards became eminent in such different ways as, for instance, James Clerk See also:Maxwell and Sir See also:William See also:Harcourt. Stephen formed friendships with some of its members, which were as permanent, though in few cases so little subject to See also:external interruption, as his intimacy with Maine. Probably the Apostles did much to correct the formalism inevitably incident to the evangelical traditions of the first Sir James Stephen's See also:household. After leaving Cambridge, Fitzjames Stephen, having practically to choose between the See also:Church and the See also:bar, decided for the bar. He was called in 1854, after the usual haphazard preparation which was then (and still practically is) considered in See also:England alone, and even in England for one See also:kind of learning alone, a sufficient introduction to the duties of a learned profession. His own estimate of his strictly professional success, written down in later years, was that in spite of such training as he could get, rather than because of it, he became a moderately successful See also:advocate and a rather distinguished judge. As to the former See also:branch of the statement, it is correct but ambiguous o those who do not know the facts. Stephen's See also:work was always distinguished in quality, though his amount of business was never See also:great in quantity. After his return from See also:India and before he became a judge he had what is called a See also:good practice, but still not a large one.

In his earlier years at the bar he was attracted by the stop-See also:

gap of journalism. It was no common journalism, however, that enlisted Stephen as a contributor to the Saturday See also:Review when it was founded in 1855. He was in See also:company with Maine, Sir William Harcourt, G. S. Venables (a writer of first-See also:rate quality who never set his name to any-thing), C. S. C. See also:Bowen, E.A. See also:Freeman, Goldwin See also:Smith and others whose names have since become well known. Strangely enough, the first and the last books published by Stephen were selections from his papers in the Saturday Review (Essays by a See also:Barrister, 1862, See also:anonymous; Horae sabbaticae, 1892). These volumes embodied the results of his studies among publicists and theologians, chiefly English, from the 17th See also:century onwards. They never professed to be more than the occasional products of an See also:amateur's leisure, but they were of greater value when they were first published than is easily recognized at this See also:day by a See also:generation See also:familiar with the resources of later See also:criticism.

For exactly three years (1858-1861) Stephen served as secretary to a royal See also:

commission on popular See also:education, which was more fortunate than most commissions in having prompt effect given to its conclusions. In 1859 he was appointed See also:recorder of See also:Newark. In 1863 he published his See also:General View of the Criminal Law of England (not altogether superseded by the second edition of 18go, which was practically a new See also:book). This was really the first See also:attempt that had been made since See also:Blackstone to explain the principles of English law and See also:justice in a See also:literary form, and it had a thoroughly deserved success. All this time Stephen kept up a great See also:deal of See also:miscellaneous See also:writing, and the See also:foundation of the See also:Pall Mall See also:Gazette in 1865 gave him a new opening. He was one of the See also:principal contributors for some years, and an occasional one till he became a judge. So far he was a literary lawyer, also possibly with chances (diminished by his vehement dislike for party politics) of See also:regular professional See also:advancement, possibly not See also:free from the temptation to turn wholly to literature. The decisive point of his career was in the summer of 1869, when he accepted the See also:post of legal member of See also:council in India. Fitzjames Stephen's friend Maine was his immediate predecessor in this See also:office. Guided by Maine's comprehensive See also:genius, the See also:government of India had entered' on a See also:period of systematic legislation which was to last about twenty years. The materials for considerable parts of this See also:plan had been left by Maine in a more or less forward See also:condition. Stephen had the task of working them into their definite shape and conducting the bills through the Legislative Council.

This he did with wonderful See also:

energy, with efficiency and workmanship adequate to the purpose, if sometimes rough according to English notions, and so as to leave his own individual See also:mark in many places. The Native Marriages See also:Act of 1872 was the result of deep See also:consideration on both Maine's and Stephen's See also:part. The See also:Contract Act had been framed in England by a learned commission (apparently not having much See also:special See also:Indian See also:information, or not much regarding that which it had), and the draft was materially altered in Stephen's hands before, also in 1872, it became law. The See also:Evidence Act of the same See also:year was entirely Stephen's own. It not only consolidated the rules of judicial See also:proof, but endeavoured to connect them by legislative authority with a logical theory of See also:probability set forth in the act itself. This part of the act has been criticized both as to the principle (which, indeed, seems open to much doubt) and as to the success of the draftsman in applying it. At any rate it is characteristic of Stephen's anxiety never to shirk a difficulty. To some extentthe Contract Act may be charged with similar over-ambition; but its more See also:practical defects are evidently due to the See also:acceptance by the See also:original framers of unsatisfactory statements which, coming to India with a show of authority, naturally escaped See also:minute criticism amid the varied business of the legislative See also:department. If the success of the later Anglo-Indian Codes has not been quite so See also:complete as that of the Penal See also:Code, they have, on the whole, done excellent service, and they are at least as good as any See also:European codification See also:prior to the very See also:recent achievements of scientific lawyers in See also:Italy and See also:Germany. Besides the special work of legislation, Stephen had to attend to the current administrative business of his department, often heavy enough to occupy the whole of an See also:ordinary able man's See also:attention, and he took his full See also:share in the general deliberations of the See also:viceroy's council. His last See also:official act was the publication of a minute on the See also:administration of justice which pointed the way to reforms not yet fully realized, and is still most valuable for every one who wishes to understand the judicial See also:system of See also:British India. Stephen, mainly for See also:family reasons, came See also:home in the See also:spring of 1872.

During the voyage he made a pastime of meditating and writing a See also:

series of articles which took the form of his book entitled See also:Liberty, Equality, Fraternity (1873-1874)—a protest against J. S. See also:Mill's neoutilitarianism which was really in the nature of an See also:appeal from the new to the old utilitarians, if any such were left, or perhaps rather to See also:Hobbes. It was, however, too individual to be systematic, and made no serious attempt at reconstruction. Indian experience had supplied Stephen with the See also:motive for his next See also:line of activity, which future historians of the common law may well regard as his most eminent See also:title to remembrance. 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 See also:procedure, and a good deal of commercial law, had been or were being put in a shape intelligible to civilian magistrates, and fairly within the comprehension of any intelligent man who would give a moderate amount of pains to mastering the See also:text of the new codes. The rational substance of the law had been preserved, while the disorder and the excessive technicalities were removed. Why should not the same procedure be as practicable and profitable in England? It was See also:Bentham's ideal of codification, to be put in practice with the knowledge of actual business and legal habits, and the lack of which had made Bentham's plans unworkable. For the next See also:half-dozen years Fitzjames Stephen was an ardent missionary in this cause. The See also:mission failed for the time as to the specific under-takings in which Stephen made his experiments, but it had a large indirect success which has not yet been adequately recognized.

Stephen published, by way of private exposition, digests in code form of the law of evidence and the criminal law. There were transient hopes of an evidence act being brought before See also:

parliament, and in 1878 the See also:digest of criminal law became a ministerial See also:bill. This was referred to a very strong judicial commission; with the addition of Stephen himself: the revised bill was introduced in 1879 and r880. It dealt with procedure as well as substantive law, and provided for a See also:court of criminal appeal (after several years of judicial experience Stephen changed his mind as to the See also:wisdom of this). However, no substantial progress was made. In 1883 the part See also:relating to procedure was brought in separately, and went to the See also:grand See also: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 See also:historical materials which Stephen had long been See also:collecting took permanent shape the same year (1883) in the See also:History of the Criminal Law of England, which, though not free from inequalities and traces of. haste, must long remain the See also:standard work on the subject. A projected digest of the law of contract (which would have been much See also:fuller than the Indian Code) See also:fell through for want of time. Thus, none of Stephen's own plans of English codification took effect. Nevertheless they See also:bore See also:fruit indirectly. Younger men dealt with other chapters of the law in the systematic form of the Anglo-Indian codes; and a digest of the law of partner-ship by Sir See also:Frederick See also:Pollock, and one of the law of negotiable See also:instruments by Sir M.

D. See also:

Chalmers, who some time afterwards filled the post of legal member of council in India, became the foundation of the Bills of See also:Exchange Act of 1882 and the Partner-ship Act of 1890. See also:Lord See also:Herschell passed a See also:Sale of Goods Act on similar lines, also drafted by Chalmers, in 1893; and a Marine See also:Insurance Act, prepared in like manner in 1894, finally became law in 1906. Nothing really stands in the way of a practically complete code of maritime and commercial law for the See also:United See also:Kingdom but the difficulty of finding time in the See also:House of See also:Commons for non-contentious legislation; and whenever this is achieved, the result will in substance be largely due to Sir James Stephen's efforts. Meanwhile, in addition to his other occupations, Stephen was an active member of the Metaphysical Society (see See also:KNowLEs), and he carried on an intimate See also:correspondence with Lord See also:Lytton, then viceroy of India, during the See also:critical period of the second Afghan See also:War. In connexion with the Metaphysical Society, and otherwise, Fitzjames Stephen took an active See also:interest in many topics of current controversy. This led him to produce a great number of occasional articles, of which a See also:list may be found at the end of Sir See also:Leslie Stephen's See also:Life. The matters dealt with covered a wide See also:field, from See also:modern history and politics, with a predilection for India, to See also:philosophy, but the prevailing See also:mood was theologico-See also:political. All these writings were forcible expositions of serious and thoroughly definite views, and therefore effective at the time and valuable even to those who least agreed with them. As to the philosophical part of them, the grounds of discussion were shifting then, and have continued to shift rapidly. Much of Stephen's vigorous polemic has already incurred the natural See also:fate of becoming as obsolete as the arguments against which it was directed. Pure metaphysical See also:speculation, as an intellectual exercise, had little attraction for him; and, though he was fully capable of impartial historical criticism, he seldom applied it outside the history of law.

In 1877 Stephen was made a See also:

Knight See also:Commander of the See also:Star of India, and in 1878 he received the honorary degree of D.C.L. at See also:Oxford. See also:Early in 1879 he was appointed judge of the See also:queen's See also:bench See also:division. He held that office a little more than eleven years. The See also:combination of mature intellectual See also:patience and critical subtlety which marked the great masters of the common law was not his, and it cannot be said that he made any considerable addition to the substance of legal ideas. His mind was framed for legislation rather than for systematic See also:interpretation and development. Therefore he can hardly be called a great judge; but he was a thoroughly just and efficient one; and if none of his judgments became landmarks of the law, very few of them were wrong. Especially in criminal See also:jurisdiction, he was invariably anxious that moral as well as legal justice should be done. He found time, in 1885, to produce a book on the trial of See also:Nuncomar, for the purpose of rehabilitating Sir See also:Elijah See also:Impey's memory against the attack made on him in See also:Macaulay's essay on See also:Warren See also:Hastings, which for most English readers is the first and last source of information on the whole See also:matter. Mr G. W. See also:Forrest's later See also:research in the archives of the government of India had tended to confirm the judicial protest, at any rate as regards Macaulay's grosser charges. The one thing of which Stephen was least capable—among other things possible to a good man and a good See also:citizen—was sparing himself.

He had one or two warnings which a less energetic man would have taken more seriously. In the spring of 1891 his See also:

health See also:broke down, the See also:chief symptom being sudden lapses of memory of which he was himself quite unconscious. In obedience to medical See also:advice he resigned his judgeship in See also:April, and was created a See also:baronet. He lived in retirement till his death on the 11th of March 1894, having filled a not very long life with a surprising amount of work, of which a large proportion was of permanent value. Perhaps the most individual part of Stephen's See also:character was his absolute sincerity. He would not allow himself even See also:innocent dissimulation; and this gave to those who knew him but slightly an impression of hardness See Sir Leslie Stephen, Life of Sir James Fitzjames Stephen (London, 1895), with See also:bibliographical appendix, a See also:model See also:Biography; same author's See also:article in the See also:Diet. Nat. Biog. ; Letters with See also:biographical Notes, by his daughter, See also:Caroline Emelia Stephen (1907). See also Sir C. P. Ilbert, " Sir James Stephen as a Legislator," Law Quart.

Rev. x. 222. (F.

End of Article: STEPHEN, SIR JAMES FITZJAMES, BART

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