Reflections on James Fitzjames Stephen
Heydon, John D., University of Queensland Law Journal
For this issue, the editors of the journal have identified themes relating to the relationship between judges, academic lawyers and legal scholars. What claim does James Fitzjames Stephen (3 March 1829-11 March 1894) have to consideration in these connections?
I Stephen's Career in Summary
Few now know much about Stephen's career and achievements. This is despite the fact that his brother, Leslie Stephen, wrote one of the finest biographies in the language about him--not the least of its virtues being a balance between the author's need to spare the feelings of Stephen's grieving widow, his less than idolatrous view of his brother's abilities outside the law and his lack of technical capacity to assess his brother's legal achievements. (1) It is despite capable studies of Stephen by James A Colaiaco in 1983, (2) K J M Smith in 1988 (3) and John Hostettler in 1995. (4) And it is despite the fact that Judge Posner has published several times, fortunately, a short study of him, not all of which commands assent but which, taken as a whole, paints a brilliant, vital and vivid portrait of the man and his significance. (5)
It is thus desirable to begin by summarising Stephen's background and career.
He was the grandson of James Stephen, who assisted his brother-in-law, William Wilberforce, in the campaign to end the slave trade. He was the son of Sir James Stephen, Under-Secretary of the Colonial Office from 1836 to 1847, who played a key role in the abolition of slavery itself. His younger brother, Leslie Stephen, became a highly respected man of letters, and was the father of Vanessa Bell and Virginia Woolf. His eldest daughter was the first principal of Newnham College, Cambridge. He and his family were or became related to many leading intellectual and political figures like members of the Macaulay, Dicey, Trevelyan, Strachey and Thackeray families, and knew or came to know many others--for example, Carlyle (whose executor Stephen became), Maine (who taught him while he read for the Bar), J A Froude, Harcourt and G H Lewes. He was educated at Eton, briefly at Kings College, London and Trinity College, Cambridge, but left that university prematurely. He then read for and was called to the Bar. Being conscious of the slightness of his legal education, he then read for an LL.B. from the University of London. In 1855 he married, and was to have nine children, of whom four predeceased him.
Until 1869 he practised at the Bar on the Midland Circuit. Success was at best mild and inconstant. He did, however, appear in two causes celebres--the defence of the Rev Rowland Williams in 1861 against heresy charges, (6) with mixed results, and, later in the decade, the unsuccessful attempt to prosecute Edward Eyre, Governor of Jamaica, for murder after his savage suppression of rioting in that colony in 1865. (7) His ability struck the young Joseph Chamberlain, for whose firm he acted in a patent arbitration in the late 1860s, with Charles Bowen as his junior. (8) In 1863 he published A General View of the Criminal Law of England--an able and original work, still well worth reading. Although it was not intended for students or practitioners of law, Mr Justice Willes 'kept it by him on the bench, ... laid down the law out of it', and called it a 'grand book'. (9) Stephen took silk in 1868. In the same year he produced the seventh edition of Roscoe's Digest of the Law of Evidence in Criminal Cases. Throughout the 1850s and 1860s he published an enormous quantity of the higher journalism on a range of subjects, partly because of financial pressure and partly because of a strong urge to mould public opinion.
On the recommendation of his predecessor, Maine, Stephen was in 1869 appointed Legal Member of the Viceroy's Legislative Council in India. He there drafted twelve Acts and eight other enactments. Among his leading achievements were the Indian Evidence Act 1872 (10) and the Indian Contracts Act 1872. …