James Fitzjames Stephen
Sir James Fitzjames Stephen | |
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Judge of the High Court | |
In office 1879–1891 | |
Personal details | |
Born | Kensington, London, England | 3 March 1829
Died | 11 March 1894 Red House Park Nursing Home, Ipswich, Suffolk, England | (aged 65)
Political party | Liberal |
Spouse | Mary Richenda Cunningham |
Children | 7, including Katharine Stephen |
Parents |
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Queen's Counsel, Legal member of the Council of India , judge | |
Sir James Fitzjames Stephen, 1st Baronet,
Early life and education, 1829–1854
James Fitzjames Stephen was born on 3 March 1829 at
Stephen was first educated at the Reverend Benjamin Guest's school in Brighton from the age of seven, before spending three years at
In October 1847 he entered Trinity College, Cambridge.[1] Although an outstanding intellect, he took an undistinguished BA in Classics in 1851, being, in his own words, one of the "most unteachable of human beings". He was, however, well-known as a strong debater at the Cambridge Union. He was also elected to the exclusive Cambridge Apostles, his proposer being Henry Maine, the newly-appointed Regius Professor of Civil Law, who became a lifelong friend despite their differing temperaments. At Apostles meetings, he frequently sparred with William Harcourt, later leader of the Liberal Party, in debates described by contemporaries as "veritable battles of the gods". Another Apostles contemporary was the physicist James Clerk Maxwell.
Being conscious of the slightness of his legal education, he then read for an LL.B. from the University of London.[2] This was an unusual step for its day, and it was there that he first seriously engaged with the works of Jeremy Bentham.
Early career, 1854–1869
In his earlier years at the bar he supplemented his income from a successful but modest practice as a journalist. He contributed to the
From 1858 to 1861, Stephen served as secretary to a
Stephen's practice at the Bar was an uneven one, though he appeared in two notable cases. In 1861–62, he unsuccessfully defended the Reverend
In early 1867, Stephen was retained by the Jamaica Committee to prosecute
Meanwhile, Stephen's legal career proceeded apace, and in 1868, he became a
Stephen in India, 1869–1872
The decisive point of Stephen's career was in the summer of 1869, when he accepted the post of legal member of the Viceroy's Executive Council in India. His appointment was at the recommendation of his friend Henry Maine, who was his immediate predecessor. He arrived in India in December 1869. During his time in India, Stephen would draft twelve acts and eight other enactments, most of which are still in force.
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
Indian Evidence Act
The
Return to England, 1872–1879
Stephen returned, mainly for family reasons, to England 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. Around this time, Leslie Stephen noted the influence of Thomas Carlyle on his brother's thought.[6] This showed in Stephen's famous attack on the thesis of John Stuart Mill's essay On Liberty, arguing for legal compulsion, coercion and restraint in the interests of morality and religion.[7][8] Stephen argued, "Force is an absolutely essential element of all law whatever."[5]
Fitzjames Stephen stood in an
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.
In August 1877, Stephen's proposals were taken up by the government and he was asked to draft a criminal code for England. He completed his draft in early 1878 and it was debated in Parliament, after which it was referred to a Royal Commission under the chairmanship of Lord Blackburn, with Stephen as a member. In 1879, the Commission produced a draft bill, which received opposition from many quarters. It did, however, serve as the basis of the criminal codes of many parts of the British Empire, including those of Canada, Australia, and New Zealand.
Judicial career and final years, 1879–1894
After his return from India, Stephen had sought a judgeship for both professional and financial reasons. In 1873, 1877, and 1878, he went on circuit as a
When Stephen was charged with the preparation of the English criminal code, he was virtually promised a judgeship, though no explicit promise could be made. Finally, in January 1879, Stephen was appointed a Justice of the High Court, in succession to Sir Anthony Cleasby. He was initially assigned to the Exchequer Division. When that division was merged into the Queen's Bench Division in 1881, Stephen was transferred to the latter, where he remained until his retirement. Occupied with the preparation of the criminal code, he only made his first appearance as a judge in April 1879 at the Old Bailey, when he passed a death sentence against a matricide.
Distracted by his literary and intellectual pursuits, his time as a judge was unimpressive relative to the rest of his career, though his judgments were of a high quality. He had transient hopes of an Evidence Act being brought before
Stephen's final years were undermined first by physical and then steady mental decline. In 1885, he had his first stroke. Despite accusations of unfairness and bias regarding the murder trials of Israel Lipski 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, whereupon he was made a baronet.[3] 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'.[9]
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, London.[10] His wife survived him.
Honours
Stephen was knighted as a
Legacy
Criminal appeal was discussed and an Act passed in 1907; otherwise nothing has been done in the UK with either part of the draft code since. The historical materials which Stephen had long been collecting took permanent shape in 1883 as his History of the Criminal Law of England. He lacked time for a planned Digest of the Law of Contract (which would have been much fuller than the Indian Code). Thus none of Stephen's own plans of English codification took effect. The
His book Liberty, Equality, Fraternity was called the "finest exposition of conservative thought in the latter half of the 19th century" by Ernest Barker.[11] It was listed as one of Ten Conservative Books to read in the chapter of that name in The Politics of Prudence by Russell Kirk. According to Princeton University political theorist Greg Conti, Stephen's political thought had liberal characteristics, even though he has frequently been characterized as conservative or religious authoritarian.[12] According to Conti, Stephen "articulated robustly both technocratic and pluralistic visions of politics. Perhaps more stridently than any Victorian, he put forward an argument for the necessity and legitimacy of expert rule against claims for popular government. Yet he also insisted on the plurality of perspectives on public affairs and on the ineluctable conflict between them."[12]
The 1957 Wolfenden report recommended the decriminalisation of homosexuality and this sparked off the Hart-Devlin debate on the relationship between politics and morals. Lord Devlin's 1959 critique of the Wolfenden report (titled 'The Enforcement of Morals') resembled Stephen's arguments, although Devlin had arrived at his opinions independently, having never read Liberty, Equality, Fraternity.[13] Hart claimed that "though a century divides these two legal writers, the similarity in the general tone and sometimes in the detail of their arguments is very great".[13][14] Afterwards, Devlin tried to obtain a copy of Liberty, Equality, Fraternity from his local library but could only do so with "great difficulty"; the copy, when it arrived, was "held together with an elastic band".[13][15] Hart, an opponent of Stephen's views, regarded Liberty, Equality, Fraternity as "sombre and impressive".[16][14]
An eleven-volume set of his collected writings is currently[when?] being prepared for Oxford University Press by the Editorial Institute at Boston University.
Personal life
Stephen married Mary Richenda Cunningham, daughter of John William Cunningham,[17] on 19 September 1855. They had three sons and at least four daughters surviving to adulthood, but only one grandchild:
- Katharine Stephen (1856–1924), librarian and Principal of Newnham College, Cambridge;
- Sir Herbert Stephen, 2nd Baronet (1857–1932), barrister and clerk of assize, who succeeded him in the baronetcy;
- Prince Albert Victor, who predeceased his father;
- High Court of Calcutta, 1901–1914,[3]who succeeded his eldest brother as the 3rd baronet;
- Helen Stephen (1862–1908);
- Rosamond Emily Stephen (1868–1951), lay missionary in the Church of Ireland in Belfast and advocate of ecumenism;
- Dorothea Jane Stephen (1871–1965), teacher of religion in India.
Quotations
"Some men, probably, abstain from murder because they fear that, if they committed murder, they would be hung. Hundreds of thousands abstain from it because they regard it with horror. One great reason why they regard it with horror is, that murderers are hung with the hearty approbation of all reasonable men".[18]
On evidence obtained by duress or torture:
"It is far pleasanter to sit comfortably in the shade rubbing red pepper in some poor devil's eyes, than to go about in the sun hunting up evidence."
Source: The University of Chicago Law Review, Vol. 46, No. 1 (Autumn, 1978), pp. 3–22 40 1 J.F. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 442 n.1 (1883). Stephen's forceful quotation has been cited for this point elsewhere; McNabb v. United States, 318 U.S. 332, 344 n.8 (1943); J. LANGBEIN, supra note 1, at 147 n.14; Alschuler, supra note 11, at 1103 n.137.
Arms
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Works
- Essays by a Barrister. London: Elder and Co., 1862.
- A General View of the Criminal Law of England. London: Macmillan & Co., 1890 (1st Pub. 1863).
- The Indian evidence act (I. of 1872): With an Introduction on the Principles of Judicial Evidence. London: Macmillan and Co., 1872.
- Liberty, Equality, Fraternity. New York: Holt & Williams, 1873 (2nd ed.) 1874.
- A History of the Criminal Law of England, Vol. 2, Vol. 3. London: Macmillan & Co., 1883.
- The Story of Nuncomar and the Impeachment of Sir Elijah Impey, Vol. 2. London: Macmillan and Co., 1885.
- Horae Sabbaticae: Reprint of Articles Contributed to the Saturday Review. First Series. London: Macmillan & Co., 1892.
- Horae Sabbaticae: Reprint of Articles Contributed to the Saturday Review. Second Series. London: Macmillan & Co., 1892.
- Horae Sabbaticae: Reprint of Articles Contributed to the Saturday Review. Third Series. London: Macmillan & Co., 1892.
Selected articles
- "Responsibility and Mental Competence," Transactions of the National Association for the Promotion of Social Science, 1865.
- "Codification in India and England," The Fortnightly Review, Vol. XVIII, 1872.
- "Parliamentary Government," Part II, The Contemporary Review, Vol. XXIII, December 1873/May 1874.
- "Caesarism and Ultramontanism,"[20] Part II, The Contemporary Review, Vol. XXIII, December 1873/May 1874.
- "Necessary Truth," The Contemporary Review, Vol. XXV, December 1874/May 1875.
- "The Laws of England as to the Expression of Religious Opinion," The Contemporary Review, Vol. XXV, December 1874/May 1875.
- "Mr. Gladstone and Sir George Lewis on Authority in Matters of Opinion," The Nineteenth Century, March/July, 1877.
- "Improvement of the Law by Private Enterprise," The Nineteenth Century, Vol. II, August/December, 1877.
- "Suggestions as to the Reform of the Criminal Law," The Nineteenth Century, Vol. II, August/December, 1877.
- "The Influence Upon Morality of a Decline in Religious Belief." In: A Modern Symposium, Rose-Belford Publishing Co., 1878.
- "Gambling and the Law," The Nineteenth Century, Vol. XXX, July/December, 1891.
- "Criminal Procedure from the Thirteenth to the Eighteenth Century." In: Select Essays in Anglo-American Legal History, Vol. II, Little, Brown & Company, 1908.
Miscellany
- "Codification in India and England," Opening Address of the Session 1872-3 of the Law Amendment Society, The Law Magazine, Vol. I, New Series, 1872.
References
- ^ "Stephen, James Fitzjames (STFN846JF)". A Cambridge Alumni Database. University of Cambridge.
- ^ Heydon, John (2010). "Reflections on James Fitzjames Stephen" (PDF). University of Queensland Law Journal: 24 – via Austlii.
- ^ doi:10.1093/ref:odnb/26375. (Subscription or UK public library membershiprequired.)
- ^ The second edition of 1890 was practically a new book.
- ^ ISBN 978-0-593-32008-2.
- ^ Kirk, Russell (2016). The Conservative Mind (Seventh revised ed.). Gateway Editions. p. 304.
- ^ Stephen, James Fitzjames (1873). Liberty, Equality, Fraternity. New York: Holt & Williams. Retrieved 7 November 2014.
- ^ Kimball, Roger (2005). "Liberty, Equality, Fraternity," Arma Virumque, The New Criterion.
- ^ Law Times (21 March 1891), p. 370.
- ^ Paths of Glory. Friends of Kensal Green Cemetery. 1997. p. 94.
- ^ Ernest Barker, Political Thought in England: 1848 to 1914 (London: Thornton Butterworth, 1915), p. 150.
- ^ ISSN 0003-0554.
- ^ a b c John Heydon, 'Reflections on James Fitzjames Stephen', University of Queensland Law Journal, 29, no. 1 (2010), p. 49.
- ^ a b H. L. A. Hart, Law, Liberty and Morality (Oxford: Oxford University Press, 1963), p. 16.
- ^ Patrick Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1965), p. vii.
- ^ Heydon, p. 50.
- ^ Dictionary of National Biography. London: Smith, Elder & Co. 1885–1900. .
- ^ Stephen, James Fitzjames (1863). "The Classification and Definition of Particular Crimes." In: A General View of the Criminal Law of England. London and Cambridge: Macmillan & Co., p. 99.
- ^ Burke's Peerage. 1949.
- ^ Cardinal Manning. "Ultramontanism and Christianity," The Contemporary Review, Vol. XXIII, December 1873/May 1874.
- public domain: Chisholm, Hugh, ed. (1911). "Stephen, Sir James Fitzjames". Encyclopædia Britannica. Vol. 25 (11th ed.). Cambridge University Press. pp. 883–885. This article incorporates text from a publication now in the
Further reading
- Annan, Noel (1955). "The Intellectual Aristocracy." In J.H. Plumb (ed.), Studies in Social History: A Tribute to G. M. Trevelyan. London: Longmans, Green.
- Colaiaco, James A. (1983). James Fitzjames Stephen and the Crisis of Victorian Thought. London: Macmillan.
- DeGirolami, Marc O. (2012). "Against Theories of Punishment: The Thought of Sir James Fitzjames Stephen," Ohio State Journal of Criminal Law, Vol. 9, pp. 1–57.
- Kirk, Russell (1952). "The Foreboding Conservatism of Stephen," Western Political Quarterly, Vol. 5, No. 4, pp. 563–577.
- Lipincott, Benjamin (1931). "James Fitzjames Stephen: Critic of Democracy," Economica, No. 33, pp. 296–307.
- Livingston, James C. (1974). "The Religious Creed and Criticism of Sir James Fitzjames Stephen," Victorian Studies, Vol. 17, No. 3, pp. 279–300.
- Morse, Stephen J. (2008). "Thoroughly Modern: Sir James Fitzjames Stephen on Criminal Responsibility," Ohio State Journal of Criminal Law, Vol. 5, pp. 505–522.
- Posner, Richard A. (2012). "The Romance of Force: James Fitzjames Stephen on Criminal Law," Ohio State Journal of Criminal Law, Vol. 10, No. 1, pp. 263–275.
- Roach, John (1956). "James Fitzjames Stephen (1829–94)," Journal of the Royal Asiatic Society (New Series), Vol. 88, No. 1/2, pp. 1–16.
- Smith, K.J.M. (2002). James Fitzjames Stephen: Portrait of a Victorian Rationalist. Cambridge University Press.
- Stapleton, Julia (1998). "James Fitzjames Stephen: Liberalism, Patriotism, and English Liberty," Victorian Studies, Vol. 41, No. 2, pp. 243–263.
- Stephen, Leslie (1895). The Life of Sir James Fitzjames Stephen, Bart., K.C.S.I.: A Judge of the High Court of Justice. London: Smith, Elder & Co.
- Wedgewood, Julia (1909). "James Fitzjames Stephen." In: Nineteenth Century Teachers and Other Essays. London: Hodder & Stoughton, pp. 201–224.
External links
- Works by or about James Fitzjames Stephen at Internet Archive
- Works by James Fitzjames Stephen, at Hathi Trust
- Archive of articles by James Fitzjames Stephen in the public domain
- Smith, K.J.M. "Stephen, Sir James Fitzjames," Oxford Dictionary of National Biography, Oxford University Press 2004.
- Portraits of James Fitzjames Stephen at the National Portrait Gallery, London