Sir James Fitzjames Stephen (March 3, 1829 - March 11, 1894) was an English lawyer and judge, noted for his criminal law reform proposals. His General View of the Criminal Law of England (1863) was the first attempt since William Blackstone to explain the principles of English law and justice in a literary form.
During his time in India on the British viceroy's council, he devoted himself to codification and reform of Indian law. On his return to England, he made great efforts to reform English criminal law in similar fashion to his improvements in India. Although his codification was not adopted directly, Stephen's work impacted legal thought and practice not only in England, but also gave direction to the development of legal systems in many countries of the English speaking world.
James Fitzjames Stephen was born on March 3, 1829, in Kensington, London, the grandson of James Stephen, the brother of 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, University of Cambridge. Although an outstanding student, he did not win any prizes, mainly because he was not interested 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 the Apostles, a body with an un-formulated but most individual tradition of open-mindedness and absolute mutual tolerance in all matters of opinion. It contained a remarkable group of men who afterwards became eminent in different ways: For example, James Clerk Maxwell and Sir William Vernon Harcourt. Stephen formed friendships with some of its members. Probably, the Apostles did much to change the formalism resulting from the Evangelical traditions of the first Sir James Stephen's household.
After leaving Cambridge, Stephen decided to enter a law career. He was accepted to the bar in 1854. He married Mary Richenda Cunningham in 1855.
Somewhat successful as a lawyer, Stephen was an excellent writer and much of his success and legacy comes from his publications. In particular, he produced the first attempt after Sir William Blackstone to systematically present the principles of English law.
Stephen spent several years as a member of the British viceroy's council in India, during which time he devoted himself to the codification and reform of Indian law. On his return to England he applied himself to codification and attempted reform of English law. He also continued his writings, offering a substantial critique of John Stuart Mill's views.
Stephen was forced to resign his judicial post in 1891, due to ill health, suffering from frequent memory lapses. He was made a baronet in 1891. He died in Ipswich, England, on March 11, 1894.
As a barrister Stephen had, what is called, a good practice, but still not a large one. He was largely occupied with official work on codification. He spent his spare time as a journalist. He became a contributor to the Saturday Review when it was founded in 1855. He was in company with Maine, Harcourt, George Stovin Venables, Charles Bowen, Edward Augustus Freeman, Goldwin Smith and others. Stephen published his first book Essays by a Barrister in 1862, which consisted of selections from his papers in the Saturday Review. These volumes embodied the results of his studies among publicists and theologians, chiefly English, from the seventeenth century onwards. They never professed to be more than the occasional products of an amateur's leisure, but they were of great value when they were first published.
For three years (1858-1861) Stephen served as secretary to a Royal Commission on popular education, which was more fortunate than most commissions in having prompt implementation given to its conclusions. In 1859, he was appointed Recorder of Newark-on-Trent. In 1863, he published his General View of the Criminal Law of England. This was really the first attempt that had been made since William Blackstone to explain the principles of English law and justice in a literary form, and it had a thoroughly deserved success.
The foundation of the Pall Mall Gazette in 1865, put Stephen in front of a new dilemma. So far he was an average lawyer, possibly with some chance of professional advancement. On the other hand there was a possibility to turn wholly to literature. 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 in this office. Guided by Maine's comprehensive genius, the government of India had entered a period of systematic legislation which was to last for 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 Contract Act had been framed in England by a learned commission and the draft was adapted by Stephen in 1872, before it became law.
The Evidence Act of the same year was entirely Stephen's own. It consolidated the rules of judicial proof, and endeavored to connect them by legislative authority with a logical theory of probability set forth in the act itself. This part of the act has been criticized, but it is characteristic of Stephen's anxiety never to shirk difficulty. To some extent the Contract Act may be charged with similar over-ambition; but its more practical defects are evidently due to the acceptance by the original framers of unsatisfactory statements which, coming to India with a show of authority, naturally escaped minute criticism amid the varied business of the legislative department. Besides the special work of legislation, Stephen also had to attend to the current administrative business of his department.
Mainly for family reasons, Stephen came home in the spring of 1872. During the voyage he made a pastime of meditating and writing a series of articles which took the form of his book, entitled Liberty, Equality, Fraternity (1873-1874), a protest against John Stuart Mill's neo-utilitarianism which was really in the nature of an appeal from the new to the old utilitarianism. Stephen argued that Mill had turned doctrines of the French Revolution into “the creed of a religion.” Mill’s insistence on unlimited freedom, material equality, and a universal love of humanity would ultimately lead to coercion and tyranny. It is the constraint of morality and law that, claimed Stephen, make liberty possible.
His Indian experience had supplied Stephen with the motive for his next line of activity, which future historians of the common law may well regard as his most eminent claim 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 procedure, and a good deal of commercial law, had been put in a shape intelligible to civilian magistrates, and fairly within the comprehension of any intelligent man who could give a moderate amount of pain to mastering the 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 Jeremy 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 half-dozen years, Fitzjames Stephen was an ardent missionary in this cause, trying to make a codification system that would serve as a basis for further reforms in English legal system. 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 Parliament. Then, in 1878, the Digest of Criminal Law became a Ministerial Bill. This was referred to a very strong judicial commission, with the addition of Stephen himself: 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. However, no substantial progress was made. 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, which, though not free from inequalities and traces of haste, must long remain the standard work on the subject. Although initially none of Stephen's own plans of English codification took effect, they nevertheless bore fruit later.
Stephen was a prominent legal historian and legal thinker of his time. His work covered a wide range of topics, from issues in slavery and capital punishment, to the law of evidence and criminal responsibility. His book, Liberty, Equality, Fraternity (1873-1874) was the first comprehensive attack on J. S. Mill’s, On Liberty (1859).
Although parliament never enacted his proposed codification of English criminal law, his writings had a lasting impact on legal thought and practice, in India, England, Canada, and the United States. His work gave direction to the development of legal systems in the English speaking world.
This article incorporates text from the Encyclopædia Britannica Eleventh Edition, a publication now in the public domain.
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