Dictionary of National Biography, 1885-1900/Stephen, James Fitzjames

STEPHEN, Sir JAMES FITZJAMES (1829–1894), judge, born at Kensington on 3 March, was the second son of Sir James Stephen (1789–1859) [q. v.] He was sent in November 1836 to the school of the Rev. Benjamin Guest at Brighton, and in April 1842 to Eton, which he attended from his father's house in Windsor. He showed from infancy remarkable thoughtfulness and independence of character, though he was not brilliant as a scholar. At Eton he was much bullied and learnt the lesson of taking his own part and resenting injustice. His dislike to the place led to his being entered at King's College, London. He lived with his uncle, Henry Venn (1796-1873) [q. v.], did well in examinations, spoke at a debating society, and was interested by F. D. Maurice's lectures. In 1847 he entered Trinity College, Cambridge. Want of accurate scholarship and of mathematical aptitude made his academical career unsuccessful. He became, however, well known at the Union, where his great rival was the present Sir W. Harcourt, and where his downright oratory earned him the nickname of the 'British Lion.' He was also a member of the 'Apostles,' where he read many papers and formed a close friendship with (Sir) Henry James Sumner Maine [q. v.], then professor of civil law. Failing to win a scholarship, he went abroad with his father in October 1850, abandoning the honours competition. At Paris he attended law courts and became interested in the contrast between French and English procedure. He took an ordinary B.A. degree in the summer of 1851. He now decided to go to the bar, in spite of his father's preference for a clerical career. He entered the Inner Temple, and was called to the bar on 26 Jan. 1854. He found the more technical part of his legal studies uncongenial, but was deeply interested in general principles of jurisprudence. At this time he formed a close friendship with Henry John Stephen Smith [q. v.], the mathematician, and (Sir) M. E. Grant Duff.

On 19 April 1855 he married Mary Richenda, daughter of the Rev. John William Cunningham [q. v.] Stephen had grown to great physical strength, though he cared little for any athletic exercise except walking, and in mind as in body showed much more strength than flexibility. He had accused himself of sluggishness, and, though he had been a steady worker, had not liked his studies enough to reconcile him to drudgery. From the time of his marriage, however, he became a most energetic worker. He had no connections at the bar when he joined the midland circuit. Business came slowly, though he was engaged in some conspicuous criminal cases. Meanwhile he found it desirable to earn money by journalism. Earlier attempts had brought little success, but at the end of 1855 he began to write for the ‘Saturday Review,’ then just started. There he found a thoroughly congenial employment in writing social and moral articles, and became very intimate with other contributors, especially George Stovin Venables and Thomas Collett Sandars [q. v.] While occupied with this and other literary work, he was appointed in 1858 secretary to the education commission of that year. The Rev. William Rogers, one of the commissioners, says (Reminiscences, 1888, pp. 129–56) that the success of the commission in ‘laying down the future lines of popular education’ was due more to their secretary than to any one else. The commission lasted till 1861. In August 1859 his improved position on circuit was shown by his appointment as recorder of Newark. He held the position, worth only 40l. a year, till 1869. In December 1861 he was employed as counsel for Dr. Rowland Williams [q. v.], charged in the court of arches with expressing heretical opinions in one of the ‘Essays and Reviews.’ His client was convicted upon two counts, but acquitted upon them on appeal to the privy council. On the appeal Williams defended himself. Stephen published his argument in 1862. The case was out of the regular way of business, and his employment was due to his sympathy with the general position of the ‘Broad-church party.’ He was a friend of Jowett and Dean Stanley, and at this time had much sympathy for their opinions. He wrote some articles in ‘Fraser’ upon theological controversies at this time, and sharply criticised Newman's ‘Grammar of Assent.’ Froude, who was the editor, was a very intimate friend, and Stephen, after Froude, was also one of the warmest friends of Carlyle. Carlyle's respect was afterwards shown by his appointment of Stephen as his executor. Stephen had also during this period (1860–1863) contributed many articles to the ‘Cornhill Magazine,’ under Thackeray's editorship. In 1863 Stephen returned to more professional work by publishing his ‘General View of the Criminal Law.’ He had been long greatly interested in the subject, and published the germ of his book in the ‘Cambridge Essays’ for 1857.

In 1865 the ‘Pall Mall Gazette’ was started, and Stephen was invited to become a contributor. For five years he was the chief writer. He wrote sometimes as many as six articles in a week, and in 1868 wrote two-thirds of the articles published. His services were highly valued by the editor, Mr. Frederick Greenwood, and he had a freer hand than elsewhere for the expression of his strongest convictions. Few journalists have succeeded in stamping a paper more distinctly with their personal characteristics, and the paper held a very high and independent position. He was at the same time writing a series of articles upon standard authors in the ‘Saturday Review.’ His labours were interrupted, though less often than he could have wished, by some important professional employment. His most conspicuous case was in 1867, when he was employed by the ‘Jamaica Committee’ to apply for the committal of Governor Eyre and other officers charged with excessive severity. He took silk in 1868. In 1869 he received the offer of succeeding Maine as legal member of council in India. He accepted it after some hesitation, caused by his reluctance to leave his family, and the danger to improving prospects at the bar.

Stephen was in India from December 1869 till April 1872. He spent the time in exceedingly hard work, interrupted only by a short illness. His chief duty was to carry on the work of codification, which had been taken up after the suppression of the mutiny. The penal code, drawn by Macaulay in 1834, had been finally enacted in 1860; and other measures had been passed during Maine's tenure of office (1862–9). Several measures of great importance were passed by Stephen, with the co-operation of his colleagues, that which was most exclusively his own being the Evidence Act (passed 12 March 1872). He had, however, to take the chief part in preparing many other acts, some of them of great complexity and involving delicate questions of policy. He had done in two years and a half work which might well have filled five, and thought that the process of codification had been pushed within measurable distance of completion. Some critics held that the work thus rapidly done might be improved in elegance and accuracy, but its value on the whole has been generally admitted. Stephen was profoundly impressed by the great work achieved by the English in India, and the comparatively slovenly nature of English administration and legislation at home. He began during the home voyage to write a series of letters, expressing these conclusions, which appeared in the ‘Pall Mall Gazette’ in the winter of 1872–3, and were collected as ‘Liberty, Equality, Fraternity,’ a very forcible protest against some popular opinions. The book shows that in philosophy he was a disciple of Mill and the utilitarians, but in the application to political questions rather followed Hobbes, and was in sympathy with Carlyle's approval of strong government. He agreed, too, with Carlyle in retaining much of the old puritan sentiment, while abandoning the dogmas as indefensible. In spite of this he considered himself to be still on the liberal side, and in the summer of 1873 stood for Dundee as a supporter of Mr. Gladstone's government. He was defeated by a large majority, and his want of sympathy for the popular sentiment led him to see that, although differing on many important points, he was less averse to the conservatives. He had been strongly opposed to democracy since the impression made upon him in 1848.

After his return from India he was much employed in attempts to carry out codification in England. He prepared an Evidence Act with the approval of Sir John Duke (afterwards Lord) Coleridge, and a homicide bill with Russell Gurney [q. v.] These, and a bill consolidating the acts relating to the government of India, cost much labour in 1873–4, but never passed into law. He was appointed professor of common law at the inns of court in December 1875, and lectured upon the law of evidence, which led to a ‘digest’ of that law, published in 1876. In 1877 he published a digest of the criminal law, to which he had been led when preparing a new edition of his ‘General View.’ His suggestion that this might be converted into a code was favourably received by government, and he was instructed to prepare a measure, which was in 1878 carefully considered by a commission including himself and three judges. A bill to give effect to the code was dropped on a change of government, but again announced in the Queen's speech in 1882. It was never brought before parliament.

Stephen had been employed in some important cases before the judicial committee of the privy council, though his practice was always irregular. He was a member of a commission upon fugitive slaves (1876), a commission upon extradition (1878), and a copyright commission (1878). When he undertook the criminal code he received a virtual promise of a judgeship, and he was accordingly appointed on the first vacancy (3 Jan. 1879). He had been elected a member of the ‘Metaphysical Society’ on his return from India, and published a few articles which were partly the result of debates in that body upon theological questions. He had by this time entirely abandoned his belief in the orthodox dogmas, though he felt strongly the impracticability of dispensing with the old ‘sanctions.’ Some letters which he wrote to the ‘Times’ in 1877–8 in defence of Lord Lytton's policy in India against Lord Lawrence and others also attracted some notice. Lord Lytton, on the eve of his departure as governor-general (March 1876), had made Stephen's acquaintance; they became exceedingly warm friends, maintained a close correspondence, and Stephen heartily admired his friend's general conduct of Indian affairs. Soon after his return from India he took a house at Anaverna, near Ravensdale in Ireland, where he spent his vacations till near the end of his life, and employed much of his leisure upon literary labours.

On becoming a judge Stephen set himself to work upon the new edition of his ‘General View,’ which gradually developed into the ‘History of the Criminal Law,’ a much larger book, in which very little of the original remains. It was published in 1883, and represents a great amount of original inquiry. The labour superadded to his judicial duties sensibly tried his strength. He turned for relief to an historical inquiry, and his interest in India led him to contemplate an account of Warren Hastings's impeachment. He began, by way of experiment, to write upon the Nuncomar incident, and in 1885 published an investigation which involves a very searching criticism of Macaulay's famous article. The publication was followed by a serious illness (April 1885), which had to be met by careful regimen and by limited indulgence in hard work. He was, however, fully up to his regular work, and in the autumn of 1886 became chairman of a commission to inquire into the ordnance department. A disease which had been slowly developing began to affect his mental powers. Upon hearing that public notice had been taken of supposed failure, he consulted his physician, and by his advice at once resigned in April 1891. He received a baronetcy in recognition of his services. From this period he gradually declined, though he was still able to collect some of his old ‘Saturday Review’ articles for publication. He died at the Red House Park, Ipswich, on 11 March 1894.

In January 1877 Stephen was made K.C.S.I. He received the honorary degree of D.C.L. at Oxford in 1878, and of LL.D. at Edinburgh in 1884. He was made an honorary fellow of Trinity College, Cambridge, in 1885, and corresponding member of the French Institute in 1888.

Stephen was pre-eminently a man of masculine or, as his friends often said, Johnsonian power of mind. His massive common-sense implied some want of subtlety. His energy enabled him to turn out an immense quantity of valuable work, marred in some ways by want of finish and done at high pressure. In codifying he was carrying out the theories of his teachers, Austin and Bentham, and his failure to get his schemes adopted in England strengthened his predilection for strong government. His position, both in political and theological matters, made him an assailant of popular views, and he always expressed himself as vigorously and frankly as possible. As a judge his dislike of technicalities and subtleties was some disqualification in the nicer matters of the law, but he was respected for his downright force, and in criminal cases had the highest authority from his wide knowledge and unmistakable love of fairplay. A hatred of brutality gave him the reputation for severity; but no one was more anxious to avoid every chance of hasty and unjust judgments. In private life he was conspicuous not only for domestic affection, but for the warmth of his friendships and his generous support of the unfortunate.

Sir James Fitzjames Stephen's works are: 1. ‘Essays by a Barrister’ (anon. from the ‘Saturday Review’), 1862, 8vo. 2. ‘Defence of the Rev. Rowland Williams,’ 1862, 8vo. 3. ‘A general View of the Criminal Law of England,’ 1863, 8vo. A so-called second edition of this published in 1890 is really a distinct book. 4. ‘Liberty, Equality, Fraternity,’ 1873; 2nd edit. (with additions), 1874, 8vo. 5. ‘A Digest of the Law of Evidence,’ 1876; reprinted with alterations in 1876 (twice) and 1877; 2nd edit. 1881, 3rd edit. 1887; 4th edit. 1893. 6. ‘A Digest of the Criminal Law (Crimes and Punishments),’ 1877, 1879, 1883, 1887 and 1896, 8vo. 7. ‘A Digest of the Law of Criminal Procedure in Indictable Offences,’ 1883, 8vo, by Sir J. F. Stephen and Herbert (now Sir Herbert) Stephen. 8. ‘A History of the Criminal Law of England,’ 1883, 3 vols. 8vo. 9. ‘The Story of Nuncomar and Sir Elijah Impey,’ 1885, 2 vols. 8vo. 10. ‘Horæ Sabbaticæ: a reprint of articles contributed to the “Saturday Review,”’ 1892, three series. Stephen contributed many articles to magazines, of which a list is given in the life by Sir Leslie Stephen (pp. 484–6).

Stephen left a wife, two sons, and four daughters. His eldest son is now Sir Herbert Stephen. His second son, James Kenneth Stephen (1859–1892), was born 25 Feb. 1859. He showed great promise and won a foundation scholarship at Eton in 1871. He did well in examinations, but was better known for the intellectual ability displayed in a school periodical, the ‘Etonian.’ He was famous at the game of football ‘at the wall,’ and always retained the warmest affection for his school. He became a scholar of King's College, Cambridge, in 1878, won prizes and the Whewell scholarship (1881), and was in the first class of the historical tripos, and the second class of the law tripos, in 1881. He was elected fellow of his college in 1885. A dissertation upon ‘International Law,’ written as an exercise for this, was published in 1884. At Cambridge he was known as an ‘apostle,’ and was president of the Union (1882), where he won an unusual reputation for oratory. He appeared as Ajax in a Greek play, a part for which he was fitted by a massive frame and striking face. In 1883 he was for a short time at Sandringham as tutor to the future Duke of Clarence, who died in 1892. He was called to the bar in 1884, but devoted most of his energy to journalism. His high reputation as a speaker led his friends to anticipate for him a career of parliamentary success, and his singular sweetness and frankness gained him innumerable friends. An accidental blow upon the head at the end of 1886 inflicted injuries not perceived for some time. In the early part of 1888 he brought out a weekly paper called ‘The Reflector,’ chiefly written by himself. He now wished to devote himself chiefly to literature, and was appointed by his father to a clerkship of assize on the South Wales circuit. Meanwhile it became evident that the accident was affecting his brain. He gave up his place, and resolved in October 1890 to settle at Cambridge. He gave lectures, spoke at the Union, and was much beloved by many companions. In 1891 he wrote an able pamphlet, ‘Living Languages,’ in defence of the compulsory study of Greek at the universities. In the same year he published two little volumes of verse, ‘Lapsus Calami,’ and ‘Quo Musa tendis,’ chiefly collections of previous essays. The first went through five editions, and both were republished as ‘Lapsus Calami, and other verses,’ with a life by his brother Herbert, and one or two additions in 1896. In November 1891 his disease suddenly took a dangerous form, and he died 3 Feb. 1892. He was buried at Kensal Green, where his father and his grandparents, Sir James and Lady Stephen, are also buried. A brass has been placed in King's College Chapel to his memory; another is in the ante-chapel at Eton.

[Family papers; Leslie Stephen's Life of Sir James Fitzjames Stephen, 1895, 8vo.]

L. S.