Page:EB1911 - Volume 25.djvu/908

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STEPHEN, SIR J. F.


alone, a sufficient introduction to the duties of a learned pro- fession. 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 io 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 sabbalicae, 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 In 1863 he published his General View of the Criminal Law of England (not altogether superseded by the second edition of 1890, which was practically a new book).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 Mall Gazette in 1865 gave him a new opening. He was one of the principal contributors for some years, and an occasional one till he became a judge. So far he was a literary lawyer, also possibly with chances (diminished by his vehement dislike for party politics) of regular professional advancement, possibly not free from the temptation to turn wholly to literature. The decisive point of his career was in the summer of 1869, when he accepted the post of legal member of council in India. Fitzjames Stephen's friend Maine was his immediate predecessor in this office. Guided by Maine's comprehensive genius, the government of India had entered" on a period of systematic legislation which was to last about twenty years. The materials for considerable parts of this plan had been left by Maine in a more or less forward condition. Stephen had the task of work- ing them into their definite shape and conducting the bills through the Legislative Council. This he did with wonderful energy, with efficiency and workmanship adequate to the purpose, if sometimes rough according to English notions, and so as to leave his own individual mark in many places. The Native Marriages Act of 1872 was the result of deep consideration on both Maine's and Stephen's part. The Contract Act had been framed in England by a learned commission (apparently not having much special Indian information, or not much regarding that which it had), and the draft was materially altered in Stephen's hands before, also in 1872, it became law. The Evidence Act of the same year was entirely Stephen's own. It not only consolidated the rules of judicial proof, but en- deavoured to connect them by legislative authority with a logical theory of probability set forth in the act itself. This part of the act has been criticized both as to the principle (which, indeed, seems open to much doubt) and as to the success of the draftsman in applying it. At any rate it is characteristic of Stephen's anxiety never to shirk a difficulty. To some extent the Contract Act may be charged with similar over-ambition; but its more practical defects are evidently due to the acceptance by the original framers of unsatisfactory statements which, coming to India with a show of authority, naturally escaped minute criticism amid the varied business of the legislative department. If the success of the later Anglo-Indian Codes has not been quite so complete as that of the Penal Code, they have, on the whole, done excellent service, and they are at least as good as any European codification prior to the very recent achievements of scientific lawyers in Italy and Germany. Besides the special work of legislation, Stephen had to attend to the current administrative business of his department, often heavy enough to occupy the whole of an ordinary able man's attention, and he took his full share in the general delib- erations of the viceroy's council. His last official act was the publication of a minute on the administration of justice which pointed the way to reforms not yet fully realized, and is still most valuable for every one who wishes to understand the judicial system of British India. Stephen, mainly for family reasons, came home in the 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 neo- utilitarianism which was really in the nature of an appeal from the new to the old utilitarians, if any such were left, or per- haps 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 Bentharn's ideal of codification, to be put in practice with the knowledge of actual business and legal habits, and the lack of which hed made Bentharn'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 1880. 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 material. 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