The Life Of Sir James Fitzjames Stephen, Bart, K.C.S.I., A Judge Of The High Court Of Justice

THE LIFE OF SIR JAMES FITZJAMES STEPHEN

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PREFACE

In writing the following pages I have felt very strongly one disqualification for my task. The life of my brother, Sir J. F. Stephen , was chiefly devoted to work which requires some legal knowledge for its full appreciation. I am no lawyer; and I should have considered this fact to be a sufficient reason for silence, had it been essential to give any adequate estimate of the labours in question. My purpose, however, is a different one. I have wished to describe the man rather than to give any h

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FAMILY HISTORY I. JAMES STEPHEN, WRITER ON IMPRISONMENT FOR DEBT

During the first half of the eighteenth century a James Stephen, the first of the family of whom I have any knowledge, was tenant of a small farm in Aberdeenshire, on the borders of Buchan. [1] He was also engaged in trade, and, though it is stated that smuggler would be too harsh a name to apply to him, he had no insuperable objection to dealing in contraband articles. He was considered to belong to the respectable class, and gave his sons a good education. He had nine children by his wife, Mar

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II. JAMES STEPHEN, MASTER IN CHANCERY

I have now to tell the story of the second son, James, my grandfather, born in 1758. His education, as may be anticipated, was desultory. When four or five years old, he was sent to a school at Vauxhall kept by Peter Annet (1693-1769), the last of the Deists who (in 1763) was imprisoned for a blasphemous libel. The elder Stephen was then living at Lambeth, and the choice of a schoolmaster seems to show that his opinions were of the free-thinking type. About 1767 the boy was sent to a school near

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III. MASTER STEPHEN'S CHILDREN

I have now to speak of the generation which preceded my own, of persons who were well known to me, and who were the most important figures in the little world in which my brother and I passed our infancy. James Stephen, the Master, was survived by six children, of whom my father was the third. I will first say a few words of his brothers and sisters. The eldest son, William, became a quiet country clergyman. He was vicar of Bledlow, Bucks (for nearly sixty years), and of Great Stagsden, Beds, ma

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IV. THE VENNS

My brother was of opinion that he inherited a greater share of the Venn than of the Stephen characteristics. I certainly seem to trace in him a marked infusion of the sturdy common sense of the Venns, which tempered the irritable and nervous temperament common to many of the Stephens. The Venns were of the very blue blood of the party. They traced their descent through a long line of clergymen to the time of Elizabeth. [27] The troubles of two loyalist Venns in the great rebellion are briefly co

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V. JAMES STEPHEN, COLONIAL UNDER-SECRETARY

The young couple began prosperously enough. My father's business was increasing; and after the peace they spent some summer vacations in visits to the continent. They visited Switzerland, still unhackneyed, though Byron and Shelley were celebrating its charms. Long afterwards I used to hear from my mother of the superlative beauties of the Wengern Alp and the Staubbach (though she never, I suspect, read 'Manfred'), and she kept up for years a correspondence with a monk of the hospital on the St.

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EARLY LIFE I. CHILDHOOD

In the beginning of 1829 my father settled in a house at Kensington Gore—now 42 Hyde Park Gate. There his second son, James Fitzjames, was born on March 3, 1829. James was the name upon which my grandfather insisted because it was his own. My father, because the name was his own, objected as long as he could, but at last compounded, and averted the evil omen, by adding Fitzjames. Two other children, Leslie and Caroline Emelia, were born in 1832 and 1834 at the same house. The Kensington of those

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II. ETON

The Eton period [51] had marked effects. Fitzjames owed, as he said, a debt of gratitude to the school, but it was for favours which would have won gratitude from few recipients. The boys at a public school form, I fancy, the most rigidly conservative body in existence. They hate every deviation from the accepted type with the hatred of an ancient orthodox divine for a heretic. The Eton boys of that day regarded an 'up-town boy' with settled contempt. His motives or the motives of his parents fo

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III. KING'S COLLEGE

On October 1, 1845, he entered King's College, London. Lodgings were taken for him at Highgate Hill, within a few doors of his uncle, Henry Venn. He walked the four miles to the college, dined at the Colonial Office at two, and returned by the omnibus. He was now his own master, the only restriction imposed upon him being that he should every evening attend family prayers at his uncle's house. The two years he spent at King's College were, he says, 'most happy.' He felt himself changed from a bo

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IV. CAMBRIDGE

In October 1847 my brother went into residence at Trinity College, Cambridge. 'My Cambridge career,' he says, 'was not to me so memorable or important a period of life as it appears to some people.' He seems to have extended the qualification to all his early years. 'Few men,' he says, 'have worked harder than I have for the last thirty-five years, but I was a very lazy, unsystematic lad up to the age of twenty-two.' He would sometimes speak of himself as 'one of a slowly ripening race,' and set

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V. READING FOR THE BAR

My brother had definitely to make the choice of a profession upon which he had been reflecting during his college career. He set about the task in an eminently characteristic way. When he had failed in the last scholarship examination, he sat down deliberately and wrote out a careful discussion of the whole question. The result is before me in a little manuscript book, which Fitzjames himself re-read and annotated in 1865, 1872, and 1880. He read it once more in 1893. Both text and commentary ar

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THE BAR AND JOURNALISM I. INTRODUCTORY

I have traced at some length the early development of my brother's mind and character. Henceforward I shall have to describe rather the manifestation than the modification of his qualities. He had reached full maturity, although he had still much to learn in the art of turning his abilities to account. His 'indolence' and 'self-indulgence,' if they had ever existed, had disappeared completely and for ever. His life henceforward was of the most strenuous. He had become a strong man—strong with th

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II. FIRST YEARS AT THE BAR

I will begin by some general remarks upon his legal career, which will thus be understood as underlying his literary career. Fitzjames was called to the bar of the Inner Temple on January 26, 1854. He had his first brief soon afterwards at the Central Criminal Court, where twenty-five years later he also made his first appearance as a judge. In the same year he joined the Midland Circuit. He had no legal connections upon that or any other circuit. His choice was determined by the advice of Kenne

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III. THE 'SATURDAY REVIEW.'

Here therefore I leave the story of his main profession to take up his work in other capacities. When he left Cambridge, the 'Morning Chronicle' was passing through a short phase of unprofitable brilliancy. It had been bought by the 'Peelites,' who are reported to have sunk as much as 200,000 l. upon it. John Douglas Cook was editor, and among his contributors were Maine and others of Fitzjames's college friends. Naturally he was anxious to try his hand. He wrote several articles in the winter o

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IV. EDUCATION COMMISSION AND RECORDERSHIP

Another employment for a time gave him work, outside both of his professional and his literary career, though it remained something of a parenthesis. On June 30, 1858, a royal commission was appointed to investigate the state of popular education. The Duke of Newcastle was chairman and the other members were Sir J. T. Coleridge, W. C. Lake (afterwards Dean of Durham), Professor Goldwin Smith, Nassau Senior, Edward Miall, and the Rev. William Rogers, now rector of St. Botolph, Bishopsgate. [72] T

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V. PROGRESS AT THE BAR

His practice at the bar was improving, though not very steadily or rapidly. 'Those cases, like Snow's or Bacon's,' he observes (Dec. 17, 1859), 'do me hardly any good.... I am making a reputation which would be very useful for an older man who already had business, but is to me glory, not gain. I am like a man who has good expectations and little or no income.' Still his position is better: he has made 100 l. this year against 50 l. the year before; he is beginning to 'take root,' especially at

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VI. 'ESSAYS BY A BARRISTER'

I turn now to the literary work which filled every available interstice of time. In the summer of 1862 Fitzjames published 'Essays by a Barrister' (reprinted from the 'Saturday Review'). The essays had appeared in that paper between the end of 1858 and the beginning of 1861. From February 9, 1861, to February 28, 1863, he did not write in the 'Saturday Review.' A secession had taken place, the causes of which I do not precisely know. I believe that the editor wished to put restrictions, which so

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VII. DEFENCE OF DR. WILLIAMS

I go back to another book which was closely connected with his professional prospects and his intellectual interests. His 'Defence of Dr. Rowland Williams' appeared in the spring of 1862, and represented some very energetic and to him intensely interesting work. Certain clergymen of the Church of England had discovered—what had been known to other people for several generations—that there were mistakes in the Bible. They inferred that it was desirable to open their minds to free criticism, and t

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VIII. VIEW OF THE CRIMINAL LAW

I come now to the third book of which I have spoken. This was the 'General View of the Criminal Law of England,' published in 1863. Fitzjames first begins to speak of his intention of writing this book in 1858. He then took it up in preference to the history of the English administrative system, recommended by his father. That book, indeed, would have required antiquarian researches for which he had neither time nor taste. He thought his beginning too long and too dull to be finished at present.

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IX. THE 'PALL MALL GAZETTE'

At this time, however, he joined in another undertaking which for the following five years occupied much of his thoughts. It involved labours so regular and absorbing, that they would have been impossible had his professional employments been equal to his wishes. Towards the end of 1864 he informs Mr. Smith that he cannot continue to be a regular contributor to the 'Cornhill Magazine.' He observes, however, that if Mr. Smith carries out certain plans then in contemplation, he will be happy to ta

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X. GOVERNOR EYRE

The troubles in Jamaica had taken place in October 1865. The severity of the repressive measures excited indignation in England; and discussions arose conducted with a bitterness not often paralleled. The Gordon case was the chief topic of controversy. Governor Eyre had arrested Gordon, whom he considered to be the mainspring of the insurrection, and sent him to the district in which martial law had been proclaimed. There he was tried by a court-martial ordered by General Nelson, and speedily ha

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XI. INDIAN APPOINTMENT

In the meantime Fitzjames was obtaining, as usual, some occasional spurts of practice at the bar, while the steady gale still refused to blow. He had an influx of parliamentary business, which, for whatever reason, did not last long. He had some arbitration cases of some importance, and he was employed in a patent case in which he took considerable interest. He found himself better able than he had expected to take in mechanical principles, and thought that he was at last getting something out o

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INDIA I. PERSONAL HISTORY

Fitzjames reached Calcutta upon December 12, 1869. Henry Cunningham had made the long journey from Lahore to pay him a few days' visit. The whole time was devoted to an outpour of talk productive of boundless satisfaction to one—I suppose that I may say to both—of them. Fitzjames stayed in India until the middle of April 1872, and his absence from England, including the homeward and outward journeys, lasted for two years and a half. They were in some ways the most important years of his life; bu

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II. OFFICIAL WORK IN INDIA

A demand for codification was among the traditions of the Utilitarians. Bentham, born in 1748, had preached to deaf ears during the eighteenth century; but in the first quarter of the nineteenth he had gathered a little band of disciples, the foremost of whom was James Mill. The old philosopher had gradually obtained a hearing for his exhortations, echoed in various forms by a growing, confident, and energetic body, and his great watchword was 'Codify.' He had found hearers in foreign countries,

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III. INDIAN IMPRESSIONS

These rather vague presumptions must take the place of any deliberate estimate of the value of Fitzjames's achievements in India. I must, however, say something more of the impression made upon his own mind. I have already indicated some of the convictions suggested to him by his experience, and I shall have to speak in the next chapter of the book in which he endeavoured to set forth their application to political principles in general. Here I will summarise his view of the special principles o

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IV. LAST MONTHS IN INDIA

I must now speak of an event which made a very strong impression upon him. He concludes the chapter from which I have been quoting by declaring that of the many public men whom he had met in England and India, there was none to whom he 'felt disposed to give such heartfelt affection and honour' as to Lord Mayo. Lord Mayo, he says, though occupied in many other ways, had shown the 'deepest personal interest' in the work of the legislative department, and, when difficulties arose, had given to it

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LAST YEARS AT THE BAR I. FIRST OCCUPATIONS IN ENGLAND

Fitzjames had passed the winter of 1871-2 in Calcutta with Henry Cunningham; his wife having returned to England in November. He followed her in the spring, sailing from Bombay on April 22, 1872. To most people a voyage following two years and a half of unremitting labour would have been an occasion for a holiday. With him, however, to end one task was the same thing as to begin another, and he was taking up various bits of work before India was well out of sight. He had laid in a supply of lite

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II. 'LIBERTY, EQUALITY, FRATERNITY'

Meanwhile, however, he had been putting much energy into another task. He had for some time delivered his tale of articles to the 'Pall Mall Gazette' as of old. He was soon to become tired of anonymous journalism; but he now produced a kind of general declaration of principles which, though the authorship was no secret and was soon openly acknowledged, appeared in the old form, and, as it turned out, was his last work of importance in that department. It was in some ways the most characteristic

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III. DUNDEE ELECTION

The last letter of the series had hardly appeared in the 'Pall Mall Gazette,' when Fitzjames received an application to stand for Liverpool in the Liberal interest. He would be elected without expense to himself. He thought, as he observes, that he should find parliamentary life 'a nuisance'; but a seat in the House might of course further both his professional prospects and his schemes of codification. He consulted Coleridge, who informed him that, if Government remained in office, a codificati

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IV. CODIFICATION IN ENGLAND

Fitzjames had returned to act again as Commissioner at Wells. There he had to listen to a vehement sermon from Archdeacon Denison, in favour of auricular confession, and glancing, as his hearer fancied, at a certain article in the 'Pall Mall Gazette.' He had afterwards a pleasant chat with Freeman, 'not a bad fellow at all,' though obviously a 'terrible pedant.' He hears from Coleridge, who has finally decided against accepting the Mastership of the Rolls, and hopes that Fitzjames may still be h

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V. THE METAPHYSICAL SOCIETY

Here I shall notice some of the employments in which he found distraction from the various worries of his career. In the first place, he had a boundless appetite for books. When he returned from India he rubbed up his old classical knowledge; and, though he had far too much sense to despise the help of 'cribs,' he soon found himself able to get on pretty well without them. He mentions a number of authors, Homer, for example, and Æschylus, who supplied a motto for 'Liberty, Equality, Fraternity '

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VI. THE CRIMINAL CODE

I return to the sphere upon which Fitzjames spent his main energies, and in which, as I think, he did his most lasting work. Three months of the spring of 1874 had been spent in consolidating the laws relating to the government of India. About the same time, I may observe parenthetically, he had a scheme for publishing his speeches in the Legislative Council; and, at one period, hoped that Maine's might be included in the volume. The publishers, however, declined to try this experiment upon the

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VII. ECCLESIASTICAL CASES

Fitzjames's professional practice continued to be rather spasmodic; important cases occurring at intervals, but no steady flow of profitable work setting in. He was, however, sufficiently prosperous to be able to retire altogether from journalism. The 'Pall Mall Gazette' during his absence had naturally got into different grooves; he had ceased to sympathise with some of its political views; and as he had not time to throw himself so heartily into the work, he could no longer exercise the old in

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VIII. CORRESPONDENCE WITH LORD LYTTON

I have now to speak of a new friendship which played a very important part in his life from this time. In January 1876, Lord Lytton [174] was appointed Governor-General of India. In February, Fitzjames dined in his company at Lord Arthur Russell's. They went afterwards to the 'Cosmopolitan,' and by the end of the evening had formed a close friendship, which was only to end with their lives. Some of Fitzjames's friends were surprised at the singular strength of attachment between two men so consp

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IX. APPOINTMENT TO A JUDGESHIP

Meanwhile, Fitzjames had been receiving various proofs of rising reputation. In January 1877 he was made K.C.S.I. He expresses his pleasure at having the name of India thus 'stamped upon him'; and speaks of the very friendly letter in which Lord Salisbury had announced the honour, and of his gratitude for Lord Lytton's share in procuring it. The University of Oxford gave him the honorary D.C.L. degree in 1878. He was member of a Commission upon fugitive slaves in 1876, and of a Commission upon e

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NOTE

* * * My nephew, Sir Herbert Stephen, has kindly sent me the enclosed note in regard to my brother's life in Ireland. L. S. In 1869 my father took for the long vacation a house called Dromquina, on the northern bank of the Kenmare River, about three miles from Kenmare. The 'river' is an arm of the sea, something like forty miles long, and at Dromquina, I suppose, not above half a mile wide. He had heard of the place by reason of his friend, Mr. Froude, living at that time at Lord Lansdowne's hou

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JUDICIAL CAREER I. HISTORY OF CRIMINAL LAW

The Commission upon the Criminal Code occupied Fitzjames for some time after his appointment to a judgeship. His first appearance in his new capacity was in April 1879 at the Central Criminal Court, where he had held his first brief, and had made his first appearance after returning from India. He had to pass sentence of death upon an atrocious scoundrel convicted of matricide. A few months later he describes what was then a judge's business in chambers. It consists principally, he says, in maki

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II. 'NUNCOMAR AND IMPEY'

In the summer (1883) which followed the publication of the 'History,' it began to appear that Fitzjames's health was not quite so vigorous as it had hitherto been. He could not throw off the effects of a trifling accident in June so rapidly as of old; and in the last months of the year his condition caused for a time some anxiety to his wife. Considered by the light of what afterwards happened, these symptoms probably showed that his unremitting labours had inflicted a real though as yet not a s

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III. JUDICIAL CHARACTERISTICS

I will here say what I can of his discharge of the judicial functions which were henceforth almost his sole occupation. In the first place, he enjoyed the work, and felt himself to be in the position most suitable to his powers. Independent observers took, I believe, the same view. I have reported the criticisms made upon his work at the bar, and have tried to show what were the impediments to his success. In many respects these impediments ceased to exist, and even became advantages, when he wa

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IV. MISCELLANEOUS OCCUPATIONS

I have now described the most important labours which Fitzjames undertook after his appointment to a judgeship. Every minute of the first six years (1879-85) might seem to have been provided with ample occupation. Even during this period, however, he made time for a few short excursions into other matters, and though after 1885 he undertook no heavy task, he was often planning the execution of the old projects, and now and then uttering his opinions through the accustomed channels. He was also c

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V. JAMES KENNETH STEPHEN

I have now to give a brief notice of events which had a saddening influence upon the later years. Fitzjames, as I have remarked, had seen comparatively little of his elder children in their infancy. As they grew up, however, they had been fully admitted to his intimacy and treated on the footing of trusted and reasonable friends. The two younger daughters had been playthings in their infancy, and grew up in an atmosphere of warm domestic affection. Just before Venables' death Fitzjames made a li

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VI. CONCLUSION

What remains to be told of Fitzjames's life shall be given as briefly as may be. The death of James had been preceded by the death of Lord Lytton, November 24, 1891, which was felt deeply by the survivor. His own health gave fresh cause for anxiety during the latter part of 1889, though happily he had little suffering at any time beyond some incidental inconvenience. On March 17, 1890, he had an attack of illness during the assizes at Exeter resembling that which he had previously had at Derby.

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BIBLOGRAPHICAL NOTE

The independent books published by Sir J. F. Stephen were as follows:—...

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