James Fitzjames Stephen: Wikis


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Sir James Fitzjames Stephen

Sir James Fitzjames Stephen, 1st Baronet (3 March 1829 - 11 March 1894) was an English lawyer, judge and anti-libertarian writer. He was created 1st Baronet Stephen by Queen Victoria.


Early life

Born in Kensington, London, he was the son of James Stephen, the brother of author and critic 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, Cambridge.[1] Although an outstanding student he did not win any prizes, mainly because he was uninterested 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 Cambridge Apostles, forming friendships with some of its members. The society contained a remarkable group of men who afterwards became eminent in different ways: for example, developer of classical electromagnetic theory James Clerk Maxwell and Liberal Party leader Sir William Harcourt.

Law career

Stephen in his youth

After leaving Cambridge, Fitzjames Stephen decided to go into law. He was called to the bar in 1854. His own estimation of his professional success—written in later years—was that in spite of such training rather than because of it, he became a moderately successful advocate and a rather distinguished judge.

His legal career was a notable one: He was a member of the Viceregal Council and later Professor of Common Law at the Inns of Court. He was largely occupied with official work on codification, the results of which were never used. He was, however, responsible for the Indian Evidence Act, 1872. In 1879 he became a judge of the High Court.

In his earlier years at the bar he supplemented his income from a successful but modest practice with journalism. He contributed to the Saturday Review from the time it was founded in 1855. He was in company with Maine, Harcourt, G.S. Venables, Charles Bowen, E.A. Freeman, Goldwin Smith and others. Both 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 of publicists and theologians, chiefly English, from the 17th century onwards. He never professed his essays to be more than the occasional products of an amateur's leisure, but they were well received.

From 1858 to 1861, Stephen served as secretary to a Royal Commission on popular education, whose conclusions were promptly put into effect. In 1859 he was appointed Recorder of Newark. In 1863 he published his General View of the Criminal Law of England,[2] the first attempt made since William Blackstone to explain the principles of English law and justice in a literary form, and it enjoyed considerable success. The foundation of the Pall Mall Gazette in 1865 gave Stephen a new literary avenue. He continued to contribute until he became a judge.

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: 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 Native Marriages Act of 1872 was the result of deep consideration on both Maine's and Stephen's part. The Indian Contract Act had been framed in England by a learned commission, and the draft was materially altered in Stephen's hands before, also in 1872, it became law.


Indian Evidence Act

The Indian Evidence Act of the same year, entirely Stephen's own work, made the rules of evidence uniform for all residents of India, regardless of caste, social position, or religion. Besides drafting legislation, at this time Stephen had to attend to the current administrative business of his department, and he took a full share in the general deliberations of the viceroy's council. His last official act in India was the publication of a minute on the administration of justice which pointed the way to reforms not yet fully realized, and is still a valuable tool for anyone wishing to understand the judicial system of British India.

Stephen, mainly for family reasons, came home in the spring of 1872. During the voyage wrote a series of articles which resulted in his book Liberty, Equality, Fraternity (1873–1874)--a protest against John Stuart Mill's neo-utilitarianism. Most famously he attacked the thesis of J S Mill's essay "On Liberty" and argued for legal compulsion, coercion and restraint in the interests of morality and religion.

Application of Indian laws in the United Kingdom

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. Criminal law procedure, and a good deal of commercial law, had been or were being put into easily understood language, intelligible to civilian magistrates. The rational substance of the law was preserved, while disorder and excessive technicalities were removed. Using Jeremy Bentham's ideal of codification, he attempted to get the same principles put into practice in the United Kingdom. In spite of six years of effort on this task, Stephen was largely unsuccessful in making any reforms. Stephen also privately published digests in code form of the law of evidence and criminal law.

Judicial career

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 judicial commission, which included Stephen. 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 (though after several years of judicial experience Stephen changed his mind as to the wisdom of this). However, no substantial progress was made during that session of Parliament. 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. 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.

Personal life

He married Mary Richenda Cunningham on September 19, 1855. His eldest son Herbert succeeded him in the baronetcy. His second son, James Kenneth Stephen, was a promising poet who died within his father's lifetime. His third son, Harry Lushington Stephen, was appointed to the High Court of Calcutta in 1901, and became the 3rd baronet on the death of his eldest brother.

Death and Legacy

Stephen's final years were undermined first by physical and then steady mental decline. Despite largely unfounded 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.[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'[4]

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. His wife survived him.

He is the subject of the book James Fitzjames Stephen: Portrait of a Victorian Rationalist by Keith John Michael Smith.

An eleven-volume set of his collected writings is currently being prepared for Oxford University Press by the Editorial Institute at Boston University.



  1. ^ Stephen, James Fitzjames in Venn, J. & J. A., Alumni Cantabrigienses, Cambridge University Press, 10 vols, 1922–1958.
  2. ^ The second edition of 1890 was practically a new book.
  3. ^ K. J. M. Smith, ‘Stephen, Sir James Fitzjames, first baronet (1829–1894)’, Oxford Dictionary of National Biography, Oxford University Press, Sept 2004
  4. ^ Law Times (21 March 1891), pg 370


Up to date as of January 14, 2010

From Wikiquote

Sir James Fitzjames Stephen (March 3, 1829March 11, 1894) was an English lawyer and judge, created 1st Baronet Stephen by Queen Victoria. Through his rebuttal of John Stuart Mill's On Liberty, titled Liberty, Equality, Fraternity he established himself as a conservative philosopher.



Liberty, Equality, Fraternity (1873-1874)

Online text

  • Parliamentary government is simply a mild and disguised form of compulsion. We agree to try strength by counting heads instead of breaking heads, but the principle is exactly the same... The minority gives way not because it is convinced that it is wrong, but because it is convinced that it is a minority.
    • Ch. 2
  • To me this question whether liberty is a good or a bad thing appears as irrational as the question whether fire is a good or a bad thing. It is both good and bad according to time, place, and circumstance, and a complete answer to the question, In what cases is liberty good and in what cases is it bad? would involve not merely a universal history of mankind, but a complete solution of the problems which such a history would offer.
    • Ch. 2
  • Persuasion, indeed, is a kind of force. It consists in showing a person the consequences of his actions. It is, in a word, force applied through the mind.
    • Ch. 3
  • To try to regulate the internal affairs of a family, the relations of love or friendship, or many other things of the same sort, by law or by the coercion of public opinion, is like trying to pull an eyelash out of a man’s eye with a pair of tongs. They may put out the eye, but they will never get hold of the eyelash
    • Ch. 4
  • To try to make men equal by altering social arrangements is like trying to make the cards of equal value by shuffling the pack.
    • Ch. 5
  • The result of cutting [political power] up into little bits is simply that the man who can sweep the greatest number into one heap will govern the rest... In a pure democracy the ruling men will be the wirepullers and their friends; but they will no more be on an equality with the voters than soldiers of Ministers of State are on an equality with the subjects of monarchy.
    • Ch. 5
  • To say that the law of force is abandoned because force is regular, unopposed, and beneficially exercised, is to say that day and night are now such well-established institutions that the sun and moon are mere superfluities.
    • Ch. 5

A General View Of The Criminal Law Of England (1863)

  • The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.

External links

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Men have an all but incurable propensity to prejudge all the great questions which interest them by stamping their prejudices upon their language. [1]


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