Transcriber's note

Minor punctuation errors have been corrected without notice. Printer's errors have been corrected, and they are indicated with a [mouse-hover] and listed at the [end of this book]. All other inconsistencies are as in the original.

Walker & Boutalls Ph. Sc.
J F Stephen
From a drawing by G. F. Watts. R. A. 1863.
London. Published by Smith Elder & Co. 15 Waterloo Place.

THE LIFE
OF
SIR JAMES FITZJAMES STEPHEN

BART., K.C.S.I.

A JUDGE OF THE HIGH COURT OF JUSTICE

BY HIS BROTHER

LESLIE STEPHEN

WITH TWO PORTRAITS

LONDON

SMITH, ELDER, & CO., 15 WATERLOO PLACE

1895

[All rights reserved]

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 history of what he did. What I have said of the value of his performances must be taken as mainly a judgment at second hand. But in writing of the man himself I have advantages which, from the nature of the case, are not shared by others. For more than sixty years he was my elder brother; and a brother in whose character and fortunes I took the strongest interest from the earliest period at which I was capable of reflection or observation. I think that brothers have generally certain analogies of temperament, intellectual and moral, which enable them, however widely they may differ in many respects, to place themselves at each other's point of view, and to be so far capable of that sympathetic appreciation which is essential to satisfactory biography. I believe that this is true of my brother and myself. Moreover, as we were brought up under the same roof, I have an intimate knowledge—now, alas! almost peculiar to myself—of the little home circle whose characteristics had a profound influence upon his development. I have thought it desirable to give a fuller account of those characteristics, and of their origin in previous circumstances, than can well be given by any one but myself. This is partly because I recognise the importance of the influence exerted upon him; and partly, I will admit, for another reason. My brother took a great interest, and, I may add, an interest not unmixed with pride, in our little family history. I confess that I share his feelings, and think, at any rate, that two or three of the persons of whom I have spoken deserve a fuller notice than has as yet been made public. What I have said may, I hope, serve as a small contribution to the history of one of the rivulets which helped to compose the great current of national life in the earlier part of this century.

I could not have attempted to write the life of my brother without the approval and the help of my sister-in-law, Lady Stephen. She has provided me with materials essential to the narrative, and has kindly read what I have written. I am, of course, entirely responsible for everything that is here said; and I feel the responsibility all the more because I have had the advantage of her suggestions throughout. I have also to thank my brother's children, who have been in various ways very helpful. My nephews, in particular, have helped me in regard to various legal matters. To my sister, Miss Stephen, I owe a debt of gratitude which—for reasons which she will understand—I shall not attempt to discharge by any full acknowledgment.

I have especially to thank Sir H. S. Cunningham and Lady Egerton, Lady Stephen's brother and sister, for permitting me to read my brother's letters to them, and for various suggestions. Some other correspondence has been placed in my hands, and especially two important collections. Lady Grant Duff has been good enough to show me a number of letters written to her, and Lady Lytton has communicated letters written to the late Lord Lytton. I have spoken of these letters in the text, and have in the last chapter given my reasons for confining my use of them to occasional extracts. They have been of material service.

I have acknowledged help received from other persons at the points where it has been turned to account. I will, however, offer my best thanks to them in this place, and assure them of my sincere gratitude. Mr. Arthur Coleridge, the Rev. Dr. Kitchin, dean of Durham, the Rev. H. W. Watson, rector of Berkeswell, Coventry, the Rev. J. Llewelyn Davies, vicar of Kirkby Lonsdale, Prof. Sidgwick and Mr. Montagu S. D. Butler, of Pembroke College, Cambridge, have given me information in regard to early years. Mr. Franklin Lushington, Mr. Justice Wills, Lord Field, Mr. Justice Vaughan Williams, Sir Francis Jeune, Sir Theodore Martin, the Right Hon. Joseph Chamberlain, Mr. H. F. Dickens, and the late Captain Parker Snow have given me information of various kinds as to the legal career. Sir John Strachey, Sir Robert Egerton, and Sir H. S. Cunningham have given me information as to the Indian career. Mr. George Murray Smith, Mr. James Knowles, Mr. Frederick Greenwood, and Mr. Longman have given me information as to various literary matters. I have also to thank Mrs. Charles Simpson, Mr. F. W. Gibbs, Mrs. Russell Gurney, Mr. Horace Smith, Sir F. Pollock, Prof. Maitland, Mr. Voysey, and Mr. A. H. Millar, of Dundee, for help on various points.

Leslie Stephen.

1 May, 1895.

CONTENTS

CHAPTER I
FAMILY HISTORY
PAGE
I.James Stephen, Writer on Imprisonment for Debt[1]
II.James Stephen, Master in Chancery[8]
III.Master Stephen's Children[25]
IV.The Venns[33]
V.James Stephen, Colonial Under-secretary[41]
CHAPTER II
EARLY LIFE
I.Childhood[66]
II.Eton[77]
III.King's College[86]
IV.Cambridge[91]
V.Reading for the Bar[114]
CHAPTER III
THE BAR AND JOURNALISM
I.Introductory[131]
II.First Years at the Bar[136]
III.The 'Saturday Review'[148]
IV.Education Commission and Recordership[165]
V.Progress at the Bar[173]
VI.Essays by a Barrister[177]
VII.Defence of Dr. Williams[184]
VIII.View of the Criminal Law[203]
IX.The 'Pall Mall Gazette'[212]
X.Governor Eyre[227]
XI.Indian Appointment[231]
CHAPTER IV
INDIA
I.Personal History[237]
II.Official Work in India[246]
III.Indian Impressions[282]
IV.Last Months in India[291]
CHAPTER V
LAST YEARS AT THE BAR
I.First Occupations in England[298]
II.Liberty, Equality, Fraternity[306]
III.Dundee Election[340]
IV.Codification in England[351]
V.The Metaphysical Society[358]
VI.The Criminal Code[375]
VII.Ecclesiastical Cases[381]
VIII.Correspondence With Lord Lytton[386]
IX.Appointment to a Judgeship[401]
Note on Residence in Ireland[405]
CHAPTER VI
JUDICIAL CAREER
I.History of Criminal Law[410]
II.Nuncomar and Impey[428]
III.Judicial Characteristics[437]
IV.Miscellaneous Occupations[450]
V.James Kenneth Stephen[468]
VI.Conclusion[477]
Bibliographical Note[483]
Index[487]

ILLUSTRATIONS

Portrait from a Drawing by G. F. Watts, R.A., 1863[Frontispiece]
" " Photograph by Bassano, 1886to face p. [410]

LIFE

OF

SIR JAMES FITZJAMES STEPHEN

CHAPTER I

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, Mary Brown. Seven of these were sons, and were said to be the finest young men in the country. Alexander, the eldest, was in business at Glasgow; he died when nearly seventy, after falling into distress. William, the second son, studied medicine, and ultimately settled at St. Christopher's, in the West Indies, where he was both a physician and a planter. He probably began life as a 'surgeon to a Guineaman,' and he afterwards made money by buying 'refuse' (that is, sickly) negroes from slave ships, and, after curing them of their diseases, selling them at an advanced price. He engaged in various speculations, and had made money when he died in 1781, in his fiftieth year. His career, as will be seen, was of great importance to his relations. The other sons all took to trade, but all died before William. The two sisters, Mrs. Nuccoll and Mrs. Calder, married respectably, and lived to a great age. They were able to be of some service to nephews and nieces.

My story is chiefly concerned with the third son, James, born about 1733. After studying law for a short time at Aberdeen, he was sent abroad, when eighteen years old, to Holland, and afterwards to France, with a view to some mercantile business. He was six feet three inches in height, and a man of great muscular power. Family traditions tell of his being attacked by two footpads, and knocking their heads together till they cried for mercy. Another legend asserts that when a friend offered him a pony to carry him home after dinner, he made and won a bet that he would carry the pony. In the year 1752 this young giant was sailing as supercargo of a ship bound from Bordeaux to Scotland, with wine destined, no doubt, to replenish the 'blessed bear of Bradwardine,' and its like. The ship had neared the race of Portland, when a storm arose, and she was driven upon the cliffs of Purbeck Island. James Stephen, with four of the crew, escaped to the rocks, the rest being drowned. Stephen roped his companions to himself, and scaled the rocks in the dark, as Lovel, in the 'Antiquary,' leads the Wardours and Edie Ochiltree up the crags of the Halket Head. Next day, the outcasts were hospitably received by Mr. Milner, Collector of Customs at Poole. Stephen had to remain for some time on the spot to look after the salvage of the cargo. The drowned captain had left some valuable papers in a chest. He appeared in a dream to Stephen, and gave information which led to their recovery. The news that his ghost was on the look-out had, it is said, a wholesome effect in deterring wreckers from interference with the cargo.

Mr. Milner had six children, the youngest of whom, Sibella, was a lovely girl of fifteen. She had a fine voice, and had received more than the usual education of the times. She fell in love with the gallant young stranger, and before long they were privately married. This event was hastened by their desire to anticipate the passage of the Marriage Act (June 1753), which was expected to make the consent of parents necessary. The poor girl, however, yielded with much compunction, and regarded the evils which afterwards befell her as providential punishments for her neglect of filial duty.

James Stephen was a man of many prepossessing qualities, and soon became reconciled to his wife's family. He was taken into partnership by one of his brothers-in-law, a William Milner, then a merchant at Poole. Here his two eldest children were born, William on October 27, 1756, and James on June 30, 1758. Unfortunately the firm became bankrupt; and the bankruptcy led to a lifelong quarrel between James Stephen and his elder brother, William, who had taken some share in the business. James then managed to start in business in London, and for some time was fairly prosperous. Unluckily, while at Poole he had made a great impression upon Sir John Webbe, a Roman Catholic baronet, who had large estates in the neighbourhood. Sir John had taken up a grand scheme for developing his property at Hamworthy, close to Poole. Stephen, it seems, had discovered that there were not only brick earth and pipeclay but mineral springs and coal under the barren soil. A town was to be built; a trade started with London; Sir John's timber was to be turned into ships; a colliery was to be opened—and, in short, a second Bristol was to arise in Dorsetshire. Sir John was to supply the funds, and Stephen's energy and ability marked him out as the heaven-sent manager. Stephen accepted the proposals, gave up his London business, and set to work with energy. Coal was found, it is said, 'though of too sulphureous a kind for use;' but deeper diggings would, no doubt, lay bare a superior seam. After a year or two, however, affairs began to look black; Sir John Webbe became cool and then fell out with his manager; and the result was that, about 1769, James Stephen found himself confined for debt in the King's Bench prison.[2]

Stephen, however, was not a man to submit without knowing the reason why. He rubbed up his old legal knowledge, looked into the law-books, and discovered that imprisonment for debt was contrary to Magna Charta. This doctrine soon made converts in the King's Bench. Three of his fellow prisoners enjoy such immortality as is conferred by admission to biographical dictionaries. The best known was the crazy poet, Christopher Smart, famous for having leased himself for ninety-nine years to a bookseller, and for the fine 'Song of David,' which Browning made the text of one of his later poems.[3] Another was William Jackson, an Irish clergyman, afterwards known as a journalist on the popular side, who was convicted of high treason at Dublin in 1795, and poisoned himself in the dock.[4] A third was William Thompson, known as 'Blarney,' a painter, who had married a rich wife in 1767, but had apparently spent her money by this time.[5] Mrs. Stephen condescended to enliven the little society by her musical talents. The prisoners in general welcomed Stephen as a champion of liberty. A writ of 'Habeas Corpus' was obtained, and Stephen argued his case before Lord Mansfield. The great lawyer was naturally less amenable to reason than the prisoners. He was, however, impressed, it is reported, by the manliness and energy of the applicant. 'It is a great pity,' he said, 'but the prisoner must be remanded.' James Stephen's son, James, a boy of twelve, was by his side in court, and a bystander slipped five shillings into his hand; but the father had to go back to his prison. He stuck to his point obstinately. He published a pamphlet, setting forth his case. He wrote letters to the 'Public Advertiser,' to which Junius was then contributing. He again appealed to the courts, and finally called a meeting of his fellow prisoners. They resolved to break out in a body, and march to Westminster, to remonstrate with the judges. Stephen seized a turnkey, and took the keys by force; but, finding his followers unruly, was wise enough to submit. He was sent with three others to the 'New Jail.' The prisoners in the King's Bench hereupon rose, and attacked the wall with a pickaxe. Soldiers were called in, and the riot finally suppressed.[6]

Stephen, in spite of these proceedings, was treated with great humanity at the 'New Jail;' and apparently without much severity at the King's Bench to which he presently returned. 'Blarney' Thompson painted his portrait, and I possess an engraving with the inscription, 'Veritas à quocunque dicitur à Deo est.' Not long ago a copy of this engraving was given to my brother by a friend who had seen it in a shop and recognised the very strong family likeness between James and his great-grandson, James Fitzjames.

Stephen soon got out of prison. Sir John Webbe, at whose suit he had been arrested, agreed to pay the debts, gave him 500l. and settled an annuity of 40l. upon Mrs. Stephen. I hope that I may infer that Sir John felt that his debtor had something to say for himself. The question of making a living, however, became pressing. Stephen, on the strength, I presume, of his legal studies, resolved to be called to the bar. He entered at the Middle Temple; but had scarcely begun to keep his terms when the authorities interfered. His letters to the papers and attacks upon Lord Mansfield at the very time when Junius was at the height of his power (I do not, I may observe, claim the authorship of the letters for James Stephen) had, no doubt, made him a suspicious character. The benchers accordingly informed him that they would not call him to the bar, giving as their reasons his 'want of birth, want of fortune, want of education, and want of temper.' His friend, William Jackson, hereupon printed a letter,[7] addressing the benchers in the true Junius style. He contrasts Stephen with his persecutors. Stephen might not know Law Latin, but he had read Bracton and Glanville and Coke; he knew French and had read Latin at Aberdeen; he had been educated, it was true, in some 'paltry principles of honour and honesty,' while the benchers had learnt 'more useful lessons;' he had written letters to Wilkes copied in all the papers; he had read Locke, could 'harangue for hours upon social feelings, friendship, and benevolence,' and would trudge miles to save a family from prison, not considering that he was thereby robbing the lawyers and jailors of their fees. The benchers, it seems, had sworn the peace against him before Sir John Fielding, because he had made a friendly call upon a member of the society. They mistook a card of introduction for a challenge. Jackson signs himself 'with the profoundest sense of your Masterships' demerits, your Masterships' inflexible detestor,' and probably did not improve his friend's position.

Stephen, thus rejected, entered the legal profession by a back door, which, if not reputable, was not absolutely closed. He entered into a kind of partnership with a solicitor who was the ostensible manager of the business, and could be put forward when personal appearance was necessary. Stephen's imposing looks and manner, his acquaintance with commercial circles and his reputation as a victim of Mansfield brought him a certain amount of business. He had, however, to undertake such business as did not commend itself to the reputable members of the profession. He had a hard struggle and was playing a losing game. He became allied with unfortunate adventurers prosecuting obscure claims against Government, which, even when admitted, did not repay the costs incurred. He had to frequent taverns in order to meet his clients, and took to smoking tobacco and possibly to other indulgences. His wife, who was a delicate woman, was put to grievous shifts to make both ends meet. Her health broke down, and she died at last on March 21, 1775. She had brought him six children, of whom the eldest was nineteen and the youngest still under four.[8] I shall speak directly of the two eldest. Two daughters were taken in charge by their grandmother Stephen, who was still living in Scotland; while the two little ones remained with their father at Stoke Newington, where he now lived, ran about the common and learnt to ride pigs. James Stephen himself lived four years more, sinking into deeper difficulties; an execution was threatened during his last illness, and he died in 1779, leaving hardly enough to pay his debts.[9]