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

[1] I learn by the courtesy of Mr. James Young Stephen that this James Stephen was son of a previous James Stephen of Ardenbraught, whose brother Thomas was provost of Dundee and died in 1728. James Stephen of Ardenbraught had a younger son John, who was great-grandfather of the present Mr. Oscar Leslie Stephen. Mr. O. L. Stephen is father of Mr. James Young Stephen, Mr. Oscar Leslie Stephen, junior, and Sir Alexander Condie Stephen, K.C.M.G.

[2] My friend, Professor Bonney, kindly refers me to Conybeare and Philips' Outlines of Geology of England and Wales, p. 13, where there is an account of certain beds of lignite, or imperfect coal, in the neighbourhood of Poole. They burn with an odour of bitumen, and, no doubt, misled my great-grandfather. Geology was not even outlined in those days.

[3] 'Parleyings with Certain People'—Works (1889) xvi. 148-160.

[4] See Dictionary of National Biography.

[5] Redgrave's Dictionary of Painters.

[6] I have copies of two pamphlets in which these proceedings are described:—One is entitled 'Considerations on Imprisonment for Debt, fully proving that the confining of the bodies of debtors is contrary to Common Law, Magna Charta, Statute Law, Justice, Humanity, and Policy; and that the practice is more cruel and oppressive than is used in the most arbitrary kingdoms in Europe, with an account of various applications, &c.; by James Stephen, 1770.' The other pamphlet, to which is prefixed a letter by W. Jackson, reprints some of Stephen's letters from the New Jail, wants a title and is imperfect. See also the Annual Register for 1770 (Chronicle), November 19, for 1771 (Chronicle), January 31.

[7] That mentioned in the previous note. See also the 'Chronicle' of the Annual Register for November 19, 1770, and January 31 and November 2, 1771.

[8] The children were William and James (already mentioned); Sibella, born about 1765, afterwards married to William Maxwell Morison, editor of Decisions of Court of Session (1801-1818); Hannah, born about 1767, afterwards married to William Farish (1759-1837), Jacksonian professor at Cambridge; Elizabeth, born about 1769, afterwards married to her cousin, William Milner, of Comberton, near Cambridge; and John, born about 1771.

[9] The parish register records his burial on September 9, 1779.

[10] See the trial reported by Gurney in 21 State Trials, pp. 486-651. It lasted from 8 a.m. on Monday till 5.15 a.m. on Tuesday morning.

[11] See Slavery Delineated (preface to vol. i.), where other revolting details are given.

[12] Slavery Delineated, i. 54, 55.

[13] Sir George Stephen's Life of J. Stephen, p. 29.

[14] Reprinted in 13 Hansard's Debates, App. xxv.-cxxii.

[15] Hansard's Debates, June 20, 1814; and Abbot's Diary, ii. 503.

[16] It is now occupied by my friend Dr. Robert Liveing.

[17] For the life of my grandfather, I have relied upon his autobiography and upon the following among other works: Life of the late James Stephen by his son, Sir George Stephen, Victoria, 1875 (this little book, written when the author's memory was failing, is full of singular mistakes, a fact which I mention that I may not be supposed to have overlooked the statements in question but which it is needless to prove in detail); Jottings from Memory (two interesting little pamphlets privately printed by Sir Alfred Stephen in 1889 and 1891); and Wilberforce's Life and Letters (containing letters and incidental references). In Colquhoun's Wilberforce, his Friends and his Times (1886), pp. 180-198, is an account of Stephen's relations to Wilberforce, chiefly founded upon this. See also Roberts' Hannah More (several letters); Brougham's Speeches (1838), i. pp. 402-414 (an interesting account partly quoted in Sir J. Stephen's Clapham Sect, in Essays in Ecclesiastical Biography); Henry Adam's History of the United States (1891), iii. pp. 50-52 and elsewhere; Walpole's Life of Perceval.

[18] He served also in 1842 upon a Commission of Inquiry into the forgery of Exchequer bills.

[19] Serjeant Stephen's wife and a daughter died before him. He left two surviving children: Sarah, a lady of remarkable ability, author of a popular religious story called Anna; or, the Daughter at Home, and a chief founder of the 'Metropolitan Association for Befriending Young Servants,' who died unmarried, aged 79, on January 5, 1895; and James, who edited some of his father's books, was judge of the County Court at Lincoln, and died in November 1894. A short notice of the serjeant is in the Law Times of December 24, 1894.

[20] Life of James Stephen, p. 36.

[21] By his wife, a Miss Ravenscroft, he had seven children, who all emigrated with him. The eldest, James Wilberforce Stephen, was fourth wrangler in 1844 and Fellow of St. John's College, and afterwards a judge in the colony of Victoria.

[22] His Constitution of a Christian Church (1846) was republished, in 1874, as Churches the Many and the One, with additional notes by his son, the Rev. Samuel Garratt, now rector of St. Margaret's, Ipswich, and canon of Norwich.

[23] Lectures, vol. i. preface.

[24] Preface to Slavery Delineated, i. pp. lix.-lxx. My grandfather takes some trouble to show—and, as I think, shows conclusively—that the appointment mentioned in the text was not a job, and that it involved a considerable saving of public money. But this matter will interest no one at present.

[25] I have to thank Mr. Bryce, now President of the Board of Trade, for kindly procuring me the dates of my father's official appointments.

[26] Communicated by my friend Mr. J. Dykes Campbell.

[27] My cousin, Dr. John Venn, informs me that the first traceable Venn was a farmer in Broad Hembury, Devonshire, whose son, William Venn, was vicar of Otterton from 1599 to 1621.

[28] Henry Venn's Life, published by his grandson, Henry Venn, in 1834, has gone through several editions.

[29] A short life of John Venn is prefixed to his Sermons. He married Catherine King on October 22, 1789, and left seven children:—

1. Catherine Eling, born Dec. 2, 1791, died unmarried, April 22, 1827.
2. Jane Catherine, Lady Stephen, b. May 16, 1793, d. February 27, 1875.
3. Emelia, b. April 20, 1795, d. Feb. 1881.
4. Henry, b. February 10, 1796, d. January 13, 1873.
5. Caroline, Mrs. Ellis Batten, b. 1799, d. Jan. 26, 1870.
6. Maria, who died in infancy.
7. John, b. April 17, 1801, d. May 12, 1890.

[30] Missionary Secretariat of Henry Venn, B.D., by the Rev. William Knight, with introductory chapter by his sons the Rev. John Venn and the Rev. Henry Venn, 1880.

[31] Sir H. Taylor's Autobiography (1885), ii. 303. Taylor was b. October 18, 1800, and d. October 31, 1886.

[32] Autobiography, i. 136.

[33] P. 233.

[34] Autobiographical fragment.

[35] Taylor, ii. 301.

[36] Stephen's History of the Criminal Law, iii. 256. My brother was generally accurate in such statements, though I cannot quite resist the impression that he may at this time have been under some confusion as to the time employed upon this occasion and the time devoted to the Bill of 1833 to be mentioned directly.

[37] Taylor, i. 121-127. Sir Henry Taylor says that Stanley prepared a measure with Sir James Graham which was introduced into the House of Commons and 'forthwith was blown into the air.' I can find no trace of this in Hansard or elsewhere, and as Stanley only became Colonial Secretary (March 28) six weeks before introducing the measure which passed, and no parliamentary discussion intervened, I fancy that there must be some error. The facts as stated above seem to be at any rate sufficiently proved by Taylor's contemporary letter. According to Taylor, Stanley's great speech (May 14, 1833) upon introducing the Government measure was founded upon my father's judicious cramming, and the success of the measure was due to Stephen's putting his own design into enactments and Mr. Stanley's into a preamble. Taylor at the time thought that my father had been ill treated, but I have not the knowledge necessary to form any opinion. My brother's Life is the authority for the circumstances under which the measure was prepared, and rests on sufficient evidence.

[38] Taylor, i. 233.

[39] Ibid. ii. 303.

[40] I think it right to notice that in the first edition of T. Mozley's Reminiscences (1882), i. 111, there appeared an anecdote of my father in his official capacity which was preposterous on the face of it. It was completely demolished in a letter written by my brother which appeared in the Times of July 6, 1882, and withdrawn in a later edition.

[41] Reminiscences, ii. 224.

[42] Taylor, i. 235.

[43] Taylor, ii. 304.

[44] Reminiscences, ii. 223.

[45] Taylor, ii. 302.

[46] Some of my father's letters are given in Macvey Napier's correspondence. I think that they are the best in a collection which includes letters from many of the most eminent men of the time. A few others are in the collection of Sir H. Taylor's correspondence, edited by Professor Dowden in 1888.

[47] The title, of course, was given by Sydney Smith.

[48] My father's children were:—

1. Herbert Venn, b. September 30, 1822, d. October 22, 1846.

2. Frances Wilberforce, b. September 8, 1824, d. July 22, 1825.

3. James Fitzjames, b. March 3, 1829, d. March 11, 1894.

4. Leslie, born November 28, 1832.

5. Caroline Emelia, born December 8, 1834.

[49] I have quoted a few phrases from it in the previous chapter.

[50] He says the 11th, and mentions more than once a date which afterwards became interesting for another reason. The date given by my mother at the time must be accepted; but this is the only error I have found in my brother's statements—and it is not of profound importance.

[51] I have to thank Mr. Arthur D. Coleridge, my brother's schoolfellow and lifelong friend for a letter containing his recollections of this period.

[52] Macvey Napier correspondence.

[53] My father was sworn of H. M. Privy Council October 30, 1847, and on April 15, 1848, appointed by her Majesty in Council Member of the Committee of Privy Council for the consideration of all matters relating to trade and foreign plantations (Sir James Stephen and Sir Edward Ryan were the last two appointed under that form and title); made K.C.B. April 27, 1848, and finally retired on pension May 3, 1848, having been on sick leave since October 1847.

[54] Kindly sent to me by Mr. Montague Butler, of Pembroke College, Cambridge.

[55] See an article by W. D. Christie in Macmillan's Magazine for November 1864.

[56] Maine was born August 22, 1822, and therefore six years and a half older than Fitzjames.

[57] He was proposed by Maine on October 30, and elected November 13, 1847.

[58] The Life of Julian Fane, by his intimate friend Lord Lytton, was published in 1871. It includes some account of the 'apostles.'

[59] It refers, I suppose, to the son's failure to get into the first class in the college examination at Christmas 1848.

[60] Pearson died in 1894, after a career in England and Australia much troubled by ill health. His book upon National Character, published in 1803, first made his remarkable abilities generally known, though he had written very ably upon history.

[61] Born November 2, 1826, d. February 9, 1883. See the memoir by C. H. Pearson prefixed to the collection of Smith's Mathematical Papers (1894).

[62] I guess Dumont's 'Principles.'

[63] 'Bars of France and England,' Cornhill Magazine, p. 681, August 1864.

[64] He died June 22, 1861.

[65] May 16, 1857.

[66] I see from a contemporary note that Fitzjames attributes an article upon Goethe in one of the first numbers to 'Froude, who wrote the Nemesis of Faith'; but this appears to be only his conjecture.

[67] I believe also that for many years he wrote the annual summary of events in the Times.

[68] A list was preserved by Fitzjames of his contributions to the Saturday Review and other periodicals of his time, which enables me to speak of his share with certainty.

[69] December 19, 1857.

[70] See e.g. Saturday Review, January 3 and July 11, 1857, 'Mr. Dickens as a Politician,' and 'The Saturday Review and Light Literature.'

[71] October 17, 1857.

[72] Mr. Rogers's Reminiscences (1888), 129-156, gives a full and interesting account of this commission.

[73] P. 130.

[74] Captain Parker Snow has sent me the correspondence and some other documents. An account of his remarkable career will be found in the Review of Reviews for April 1893. The case is reported in the Times of December 8, 1859.

[75] Liberty, Equality, Fraternity.

[76] Reprinted in Essays by a Barrister.

[77] See especially his article upon 'Jurisprudence' in the Edinburgh Review for October 1861.

[78] Reprinted in Essays by a Barrister.

[79] It is characteristic that although in April 1862 I find him saying that he is at the end of 'two years of as hard and unremitting work as ever he did in his life,' I am quite unable to make out why the years should be limited to two: and certainly the work became no lighter afterwards.

[80] Chap. vi. in first edition, p. 69.

[81] Dr. Williams printed privately some Hints to my Counsel in the Court of Arches, of which Mrs. Williams has kindly sent me a copy. He declares that he 'accepts the Articles as they are, and claims to teach them with fidelity and clearness unsurpassed by living man.' No one, I think, can doubt his perfect sincerity. The 'hints' probably suggested some of the quotations and arguments in my brother's defence'; but there is no close coincidence. Dr. Williams cordially expressed his satisfaction with his counsel's performance.

[82] Defence, pp. 19, 20.

[83] Defence, p. 108.

[84] The substance of much of this paper is given in an article called 'Women and Scepticism' in Fraser's Magazine for December 1863.

[85] Fraser's Magazine, February 1864.

[86] Pall Mall Gazette, October 2, 1867. I shall speak of his contributions to this paper presently.

[87] Pall Mall Gazette, November 26, 1868.

[88] Mr. Froude promised me some recollections of this intimacy; but the promise was dissolved by his death in 1894.

[89] Preface.

[90] See 'Bentham' in Horæ Sabbaticæ, iii. 210-229, published originally about this time.

[91] View of Criminal Law, p. 167.

[92] E.g. Works, vii. 321, &c.

[93] See articles on Courts-Martial in Cornhill for June 1862.

[94] View of Criminal Law, p. 232.

[95] View of Criminal Law, p. 232.

[96] One of his smartest phrases was occasioned by Mr. Greg declaring himself to be a Christian. He was such a Christian, said Fitzjames, as an early disciple who had admired the Sermon on the Mount, but whose attention had not been called to the miracles, and who had died before the resurrection.

[97]Contributions of James Fitzjames Stephen to the Pall Mall Gazette (kindly sent to me by Mr. George Smith):—

[98] 'Liberalism,' January 1862.

[99] Mr. Charles Buxton was the first chairman, but resigned because he thought a prosecution of Governor Eyre inexpedient, though not unjust. See J. S. Mill's Autobiography, pp. 296-299.

[100] It is substantially given in his History of the Criminal Law (1883), i. 207-216.

[101] Nuncomar and Impey, ii. 271.

[102] His first letter to Miss Thackeray, I notice, is written upon the back of a quaint broadsheet, bought at Boulogne. On the other side is a woodcut of the gallant 'Tulipe' parting from his mistress, and beneath them is the song 'Tiens, voici ma pipe, voilà mon briquet!' which Montcontour used to sing at the 'Haunt' to the admiration of Pendennis and Warrington. See the Newcomes, vol. i. chap. xxxvi.

[103] I depend chiefly upon the official reports of the debates in the Legislative Council; my brother's own summary of Indian legislation in a chapter contributed to Sir W. W. Hunter's Life of the Earl of Mayo (1875), ii. pp. 143-226; and a full account of Indian criminal legislation in chap, xxxiii. of his History of Criminal Law. He gave a short summary of his work in an address to the Social Science Association on November 11, 1872, published in the Fortnightly Review for December 1872. I may also refer to an article upon 'Sir James Stephen as a Legislator' in the Law Quarterly Review for July 1894, by Sir C. P. Ilbert, one of his successors.

[104] I may say that he especially acknowledges the share of the work done in his own time by Mr. Whitley Stokes, secretary to the Council, by Sir H. S. Cunningham, for some time acting secretary, and by Mr. Cockerell, a member of the Council.

[105] History of Criminal Law, iii. 299.

[106] Life of Lord Mayo, ii. 199.

[107] History of Criminal Law, ii. 300-303.

[108] 'Obsolete Enactments Bill,' February 25, 1870.

[109] Mayo, ii. 220.

[110] The parties had also to be of certain ages, not already married, and not within certain degrees of relationship.

[111] See the account of this in History of Criminal Law, iii. 324-346.

[112] History of Criminal Law, iii. 345.

[113] Digest of the Law of Evidence. Fourth edition, 1893, pp. 156-9.

[114] An edition of the Evidence Code, with notes by Sir H. S. Cunningham, reached a ninth edition in 1894. It gives the changes subsequently made, which are not numerous or important.

[115] Sir C. P. Ilbert, however, is mistaken in supposing that Fitzjames wrote his Liberty, Equality, Fraternity during his official labours.

[116] Life of Mayo, ii. 163.

[117] In Selections from the Records of the Government of India, No. lxxxix., published by authority. Calcutta, 1872.

[118] I do not feel that it would be right to omit this remark, although I am certain that, taken by itself, it would convey a totally inaccurate impression of my brother's sentiments about India. I have, I hope, said enough to indicate his sympathetic interest in Indian matters and the work of Indian officials. I must trust my readers to understand that the phrase expresses a mood of intense excitement and must be taken only as indicating the strength of the passing emotion.

[119] The first volume of his Civilization in Europe appeared in 1857.

[120] Mill elaborately argues that the social sciences are possible precisely because the properties of the society are simply the sum of the properties of the individuals of which it is composed. His view of the importance of this theory is given in his Autobiography (first edition), p. 260. And see especially his Logic, Bk. vi. chap. vii.

[121] Liberty, Equality, Fraternity, p. 212. (My references are to the second edition.)

[122] P. 17.

[123] P. 10. This is almost literally from Bentham, who gives several similar classifications of 'sanctions.'

[124] P. 19.

[125] P. 183.

[126] P. 184.

[127] Pp. 32, 112.

[128] P. 244.

[129] Pp. 193, 195.

[130] P. 30.

[131] P. 239.

[132] P. 184.

[133] P. 96.

[134] P. 140.

[135] P. 139.

[136] P. 162.

[137] P. 177.

[138] P. 169.

[139] P. 58.

[140] P. 82.

[141] P. 84. The quotation is not quite accurate.

[142] Pp. 105-107.

[143] P. 109.

[144] P. 92. In the first edition the 'ignorant preacher' was a 'wretched little curate.' A rougher but more graphic phrase.

[145] There is here a discussion as to the relations between 'justice' and 'utility' upon which Fitzjames agreed with Mill. I dissent from both, and think that Fitzjames would have been more consistent had he agreed with me. I cannot, however, here try to unravel a rather knotty point.

[146] P. 232.

[147] P. 334.

[148] P. 125.

[149] P. 69.

[150] P. 370.

[151] P. 294.

[152] P. 300.

[153] P. 288.

[154] P. 300.

[155] I repeat that I do not ask whether his interpretation be correct.

[156] Pp. 49-60.

[157] P. 302.

[158] P. 287.

[159] P. 132.

[160] P. 75.

[161] P. 295.

[162] P. 343.

[163] P. 354.

[164] Bain's J. S. Mill, p. 111.

[165] Digest of Law of Evidence, preface.

[166] I have to thank Mr. A. H. Millar, of Dundee, for some papers and recollections referring to this election.

[167] They were substantially republished in the Contemporary Review for December 1873 and January 1874.

[168] See prefaces to History of the Criminal Law and to the Digest of the Criminal Law.

[169] The introduction is dated April 1877.

[170] Preface to History of Criminal Law.

[171] 'Jenkins v. Cook,' Law Reports, Probate Division, i. 80-107.

[172] 'Clifton v. Ridsdale,' Law Reports, Probate Division, i. 316-367; and ii. 276-353.

[173] 'Hughes v. Edwards,' Law Reports, Probate Division, ii. 361-371.

[174] B. November 8, 1831. d. November 24, 1891.

[175] Some account of the reports of these Commissions is given in the History of Criminal Law, ii. 45-58, 65-72. The Fugitive Slave Commission was appointed in consequence of a case in which the commander of an English ship in a Mohammedan port was summoned to give up a slave who had gone on board. A paper laid before the Committee by Fitzjames is reprinted in the first passage cited. He thinks that international law prescribes the surrender of the slave; and that we should not try to evade this 'revolting' consequence by a fiction as to the 'exterritoriality' of a ship of war, which might lead to unforeseen and awkward results. We ought to admit that we are deliberately breaking the law, because we hold it to be unjust and desire its amendment. He signs the report of the Commission understanding that it sanctions this view.

[176] History of Criminal Law, i. 418.

[177] History of Criminal Law, i. 265-272.

[178] Fitzjames had given a slighter account of this curious subject in the Contemporary Review for February 1871.

[179] History of Criminal Law, ii. 81-3.

[180] Ibid. iii. 84.

[181] History of Criminal Law, ii. 175.

[182] History of Criminal Law, i. 442.

[183] Fitzjames discussed this question for the last time in the Nineteenth Century for October 1886. Recent changes had, he says, made the law hopelessly inconsistent; and he points out certain difficulties, though generally adhering to the view given above.

[184] History of Criminal Law, iii. 367.

[185] Nuncomar and Impey, i. 1.

[186] Nuncomar and Impey, ii. 114.

[187] Ibid. ii. 247.

[188] Nuncomar and Impey, i. 7.

[189] History of Criminal Law, i. 456.

[190] Fitzjames kept a journal for a short time at this period, which gives the facts, also noticed in his letters.

[191] Law Reports, 6 Queen's Bench Division, pp. 244-263.

[192] Law Reports, 12 Queen's Bench Division, pp. 247-256.

[193] The verses were published in the St. James's Gazette of Dec. 2, 1881.

[194] His letters appeared in the Times of March 1 and 2 and June 9, 1883, and were afterwards collected.

[195] His letters appeared on January 1, 4, and 21, and on April 29 and May 1, 1886.

[196] February 11, 1888; reprinted in the biographical notice by Sir M. E. Grant Duff, prefixed to the collection of Maine's speeches and minutes in 1892.

[197] I have used a notice in the Cambridge Review of February 11, 1892, and some notes by Mr. Oscar Browning. I have also to thank several of James's friends for communications; especially Mr. Cornish, now Vice-Provost of Eton College, Mr. Lowry, now an Eton master, Mr. Reginald J. Smith, Q.C., and Mr. H. F. Wilson, of Lincoln's Inn.

[198] I deeply regret to say that Professor Goodhart died while these pages were going through the press. The schoolboy affection had been maintained to the end; and Goodhart was one of James's most intimate and valued friends.

[199] Mr. Lowry mentions some other ephemeral writings, the Salt Hill Papers and the Sugar Loaf Papers.

[200] The last was published at the end of 1884.

[201] A bibliographical account of the changes in these editions is given in the fourth.

[202] A 'Parodist's Apology,' added in the later edition of the Lapsus.