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Encyclopedia Britannica - Main :: SOU-STE |
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STEPHEN, SIR JAMES FITZJAMES, BART . (18291894), English lawyer, judge and publicist, was born in London on the 3rd of March 1829, the third child and second son of Sir James Stephen (q.v.). Fitzjames Stephen was for three years (18421845) at Eton, and for two years at King's College, London. In October 1847 he entered at Trinity College, Cambridge . Notwithstanding exceptional vigour in mind and body, he did not attain any of the usual scholastic or athletic distinctions. The only studies then seriously prosecuted in the university course were mathematics and classics. Neither of these attracted him in their academical forms, nor did he care for competitive sport. But his Cambridge time was fruitful in other ways. He was already acquainted with Sir Henry Maine (q.v.), six years his senior, and then newly appointed to the chair of civil law. This acquaintance now ripened into a perfect friend-ship, which ended only with Maine's death in 1888. No two men's intellectual tempers ever presented a stronger contrast. As Stephen himself said, it took them a long time to know when they really agreed. Maine was subtle, swift and far-reaching; Stephen was massive, downright, indefatigable and sincere even to unnecessary frankness. Their qualities were an almost exact complement of one another, but neither of them would take opinions on trust, or acquiesce in common-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 man of letters would be left. By Maine's introduction, Stephen became a member of the Cambridge society known as the Apostles, in form not very different from many other essay societies, in substance a body with an unformulated but most individual tradition of open-mindedness and absolute mutual tolerance in all matters of opinion . Perhaps the golden age of the society was a few years before Stephen's election, but it still contained a remarkable group of men who afterwards became eminent in such different ways as, for instance, James Clerk Maxwell and Sir William Harcourt. Stephen formed friendships with some of its members, which were as permanent, though in few cases so little subject to 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 household.After leaving Cambridge, Fitzjames Stephen, having practically to choose between the Church and the bar, decided for the bar. He was called in 1854, after the usual haphazard preparation which was then (and still practically is) considered in England alone, and even in England for one 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 advocate and a rather distinguished judge. As to the former branch of the statement, it is correct but ambiguous o those who do not know the facts. Stephen's work was always distinguished in quality, though his amount of business was never great in quantity. After his return from India and before he became a judge he had what is called a good practice, but still not a large one. In his earlier years at the bar he was attracted by the stop-gap of journalism. It was no common journalism, however, that enlisted Stephen as a contributor to the Saturday Review when it was founded in 1855. He was in company with Maine, Sir William Harcourt, G. S. Venables (a writer of first-rate quality who never set his name to any-thing), C. S. C. Bowen, E.A. Freeman, Goldwin 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 Barrister, 1862, anonymous; Horae sabbaticae, 1892). These volumes embodied the results of his studies among publicists and theologians, chiefly English, from the 17th century onwards. They never professed to be more than the occasional products of an amateur's leisure, but they were of greater value when they were first published than is easily recognized at this day by a generation familiar with the resources of later criticism. For exactly 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 effect given to its conclusions. In 1859 he was appointed recorder of Newark. In 1863 he published his General View of the Criminal Law of England (not altogether superseded by the second edition of 18go, which was practically a new book). This was really the first attempt that had been made since Blackstone to explain the principles of English law and justice in a literary form, and it had a thoroughly deserved success. All this time Stephen kept up a great deal of miscellaneous writing, and the foundation of the Pall
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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 J. S. Mill's neoutilitarianism which was really in the nature of an appeal from the new to the old utilitarians, if any such were left, or perhaps rather to Hobbes. It was, however, too individual to be systematic, and made no serious attempt at reconstruction.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 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 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 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 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. The 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 parliament, and 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 r880. It dealt with procedure as well as substantive law, and provided for a court of criminal appeal (after several years of judicial experience Stephen changed his mind as to the wisdom of this). 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) in 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. 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. Nevertheless they bore 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 Frederick Pollock, and one of the law of negotiable instruments by Sir M. D. Chalmers, who some time afterwards filled the post of legal member of council in India, became the foundation of the Bills of Exchange Act of 1882 and the Partner-ship Act of 1890. Lord Herschell passed a Sale of Goods Act on similar lines, also drafted by Chalmers, in 1893; and a Marine 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 United Kingdom but the difficulty of finding time in the House of 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 KNowLEs), and he carried on an intimate correspondence with Lord Lytton, then viceroy of India, during the critical period of the second Afghan War. In connexion with the Metaphysical Society, and otherwise, Fitzjames Stephen took an active interest
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In 1877 Stephen was made a Knight Commander
The one thing of which Stephen was least capableamong other things possible to a good man and a good citizenwas sparing himself. He had one or two warnings which a less energetic man would have taken more seriously. In the spring of 1891 his health broke down, the chief
lapses of memory of which he was himself quite unconscious. In obedience to medical advice he resigned his judgeship in April, and was created a 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 character was his absolute sincerity. He would not allow himself even 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 bibliographical appendix, a model Biography; same author's article in the Diet. Nat. Biog. ; Letters with biographical Notes, by his daughter, Caroline Emelia Stephen (1907). See also Sir C. P. Ilbert, " Sir James Stephen as a Legislator," Law Quart. Rev. x. 222. (F. Po.) End of Article: STEPHEN, SIR JAMES FITZJAMES, BART If you wish, you can link directly to this article.
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