Hesperian Trivia #10

A place instead of a person

Question: What city was the capital of the largest empire on its continent and is now one of the world’s largest cities?

Hint #1: Its empire may well have been the least centralized in history.

Hint #2: The conquest dynasty that ruled the empire fell to an alliance of rebellious subjects and foreign invaders, with an epidemic disease as their potent ally.

Hint #3: The foreigners were dazzled by the city’s wealth and grandeur but nonetheless destroyed it in a two and a half month siege that included a naval battle.

Hint #4: The antepenultimate emperor’s name became the nickname of a disease (but it was not the disease alluded to in Hint #2).

Hint #5: Sports were a passion in the city both then and now.

Last week’s answer and question:

SIR JAMES FITZJAMES STEPHEN, BART.

Question: What disciple of Jeremy Bentham wrote a critique of the political philosophy of John Stuart Mill that Richard Posner described as “an audacious and radical challenge to classical liberalism” and “a (neglected) classic of conservative thought”?

Sir James Fitzjames Stephen (1829-1894) (“Fitzjames” to his family and friends) is one of those Victorians whose eminence has faded. As an undergraduate, he was tapped for the Conversazione Society (a/k/a the “Cambridge Apostles”), a secret, exclusive intellectual discussion group, and was a dazzling success in the Cambridge Union. He then embarked on a career as a barrister, legal historian and essayist. By his own account, he had been rather indolent in his youth. In maturity he shed laziness and transformed into an indefatigable worker who wasted not a minute. He wrote many of his essays while waiting in court rooms for his own cases to be called.

He was a professed follower of the utilitarianism of Jeremy Bentham, though his version of that philosophy diverged greatly from the original. Bentham and Stephen both espoused the principle of “the greatest happiness of the greatest number”, but Stephen believed that happiness required adherence to a code of moral conduct, without which civilized society would collapse, in contrast to Bentham’s simplistic equation of pleasure with good and pain with evil.

One of Bentham’s great causes was codification of Britain’s ramshackle structure of statutory and common law. Stephen shared that enthusiasm and doubtless believed that he would be remembered for his labors toward its accomplishment. (See Hint #4.) If so, he must now be a disappointed man, for he is remembered almost exclusively, if at all, for Liberty, Equality, Fraternity, a broadside attack on the doctrines advanced by John Stuart Mill’s On Liberty.

Stephen’s central principle was that a government cannot operate without enforcing morals, whether or not it admits to what it is doing. To say that the sole duty of government is to prevent individuals from violating the rights of others necessitates determining what those rights are, which is inescapably a moral question. Because he criticized the shibboleths of “liberty”, “equality” and “fraternity”, he is often labeled an authoritarian. He was in actuality highly averse to arbitrary rule but doubted that liberty could be preserved by turning it into a supreme principle. Instead, he proposed a prudential test, which he summarized thus:

“Compulsion is bad: (1) When the object aimed at is bad. (2) When the object aimed at is good, but the compulsion employed is not calculated to obtain it. (3) When the object aimed at is good, and the compulsion employed is calculated to obtain it, but at too great an expense.”

A great deal of compulsion, particularly of the kind favored by contemporary progressives, stumbles on the first lemma, for it is a central progressive tenet these days that “good” and “bad” are purely subjective notions that vary from one individual to another. The corollary of that belief is that “good” versus “bad” is a meaningless distinction. There are only “sentiments”, as Stephen would have called them, which one has no right to impose by force.

Liberty, Equality, Fraternity made a great stir but faded in the glow of Victorian optimism. It went out of print and lay forgotten until Russell Kirk devoted a substantial segment to Stephen in The Conservative Mind (1st ed., 1953). When I looked for a copy in the mid-1960’s, I could find only a battered volume that had to be handled delicately lest it fall apart in my hands. It is now available from the Liberty Fund and the University of Chicago Press (the latter with an introduction that includes the aforementioned appraisal by Judge Posner).

Hint #1: Benjamin Disraeli said that his position as a judge was unfortunate, for he otherwise could have become the leader of the Conservative Party of the future. In his sole bid for elective office, however, he stood for Parliament as a Liberal and finished last in the poll.

Sir Leslie Stephen’s biography of his brother quotes Disraeli’s encomium: “It is a thousand pities that J. F. Stephen is a judge. He might have done anything and everything as leader of the future conservative party.” Another handicap was that Stephen was a lifelong Liberal with no affinity for electioneering. In 1873, soon after his return from his labors in India (see Hint #4) and the publication of Liberty, Equality, Fraternity, a half promise of appointment as solicitor-general lured him into standing for Parliament in the strongly Liberal city of Dundee. He had friends in the ministry who assured him that his chances of winning the seat were excellent.

Liberals were so dominant in Dundee that no Conservative candidate came forward. Stephen’s opponents were two other Liberals. Sir Leslie Stephen recounted that –

“one of Fitzjames's rivals represented the stolid middle-class prejudices, and a second the unctuous philanthropic enthusiasm, which he had denounced with his whole force in Liberty, Equality, Fraternity. No combination could have been contrived which would have set before him more clearly the characteristics of the party of which he still considered himself to be a member.”

Stephen campaigned tirelessly, if not happily, but he was out of step with the forward march of Liberalism. He finished not merely third in the poll but a distant third, with only ten percent of the vote. As his brother wrote –

“Fitzjames, in fact, discovered at Dundee that he was not really a ‘Liberal’ in the sense used in modern politics. His ‘liberalism’ . . . meant something radically opposed to the ideas which were becoming dominant with the party technically called by the name. His growing recognition of a fact which, it may perhaps be thought, should have already been sufficiently obvious, greatly influenced his future career.”

Hint #2: His father was such an influential figure in the relations between Britain and her colonies that he was often referred to as the “Over-Secretary of the Colonial Office”.

In 1825, Sir James Stephen (1789-1859), our subject’s father, left private legal practice as a barrister for the Colonial Office, where he labored for the next 22 years, rising to the position of undersecretary of state for the colonies. Sir Leslie Stephen writes of him:

“A man of long experience, vast powers of work, and decided views naturally obtained great influence with his superiors; and that such an influence was potent became generally believed among persons interested in and often aggrieved by the policy of the Government. Stephen was nicknamed as ‘King Stephen,’ or ‘Mr. Over-Secretary Stephen,’ or ‘Mr. Mother-Country Stephen.’ The last epithet . . . meant that when the colonies were exhorted to pay allegiance to the mother country they were really called upon to obey the irrepressible Under-Secretary.”

One of the “Over-Secretary’s” more notable and lasting achievements was drafting the legislation that put an end to slavery throughout the British Empire. The minister responsible for the colonies tried to draft the bill without assistance but found the task too daunting –

“and was soon obliged to have recourse to Stephen, who prepared the measure which was finally passed. The delay had made expedition necessary if slavery was not to continue for another year. My father received notice to draw the Act on Saturday morning. He went home and completed his task by the middle of the day on Monday. The Act (3 & 4 William IV. c. 73) contains sixty-six sections, fills twenty-six pages in the octavo edition of the Statute-book, and creates a whole scheme of the most intricate and elaborate kind. The amanuensis to whom it was dictated used to tell the story as an illustration of his own physical powers.”

Hint #3: His friends included Macaulay, Carlyle, James Anthony Froude and Justice Oliver Wendell Holmes, Jr.

The intellectual world of Victorian England was tiny, in the sense that everyone in it knew almost all of the others personally. Stephen’s friendship with Thomas Babington Macaulay, the historian, lawyer, Whig politician, essayist and poet, was hereditary, descending from his grandfather through his father. Young Stephen doted on Macaulay’s essays and poetry. When the great man died in 1859, Stephen stayed up all night writing what he termed a “laudation” for The Saturday Review.

Friendship with Carlyle came by way of the “Over-Secretary”, who knew Carlyle mostly through correspondence. The first time that Fitzjames ventured to call on the eminento, Mrs. Carlyle mistook him for “an American celebrity hunter” and told him to leave, then retracted the command when she learned his name. Sir Leslie Stephen attributes his brother’s falling away from Liberalism in part to Carlyle’s influence.

Froude¹ I mention, because he illustrates another, non-legal side of Stephen’s life. While working full-time as a barrister and later as a legislative draftsman and judge, Stephen contributed a vast number essays to the leading periodicals of the day – The Saturday Review,² The Edinburgh Review, Cornhill Magazine, Fraser’s Magazine, The Pall Mall Gazette, The Fortnightly Review, The National Review,³ Nineteenth Century and others – addressing a wide variety of historical, literary, philosophical, religious and legal topics. While he said that the impetus was the need to supplement his income as a fledgling barrister (the pay for lead articles in The Saturday Review was £3 10s., equivalent to about £600 today), he continued writing long after he no longer needed the money and did not cease until failing health compelled him to lay down his pen.

His friendship with Justice Holmes is attested by Judge Posner, who suggests that “Stephen’s marvelously direct, muscular, vivid, witty, vivacious, economical style of writing, so different from American writing of any era” was the model for Holmes’s own literary style. He also sees a similarity of thought: “moral hardness” and “the belief that the world is ruled by force”, though it is obvious that the two men reached far different conclusions from those starting points.

Hint #4: He made his reputation in India, holding a position that his father had turned down in favor of Macaulay.

The Government of India Act of 1833 replaced the three separate British jurisdictions in India with a single Government of India whose ruling council was required to include a “law member”. The new position was offered to Sir James Stephen, the “Over-Secretary”. His friend Macaulay urged him to accept it, but Sir James demurred, and Macaulay went to India instead.

Sir Leslie Stephen relates that Macaulay’s “essays upon Clive and Warren Hastings gave [Fitzjames] a feeling about India like that which other boys have derived about the sea from Marryat's novels”. Then in 1869 the son was offered the role that the father had declined. He hesitated for a long while, worried about the interruption of his practice as a barrister and the inconvenience to his wife and young children. But the lure of the East won him over.

He set out for India in late 1869 and remained there for something over two years. Ever since its inception, the Government of India had been engaged in the massive project of creating a unified code of laws for all inhabitants of British India without regard to religion, caste or race. Stephen’s contributions to codification were extensive and highly praised. He reveled in the sobriquet “Benthamee Lycurgus” and compared his situation to that of “a schoolboy let loose into a pastrycook's shop with unlimited credit. The dainties provided, in the way of legislative business, are attractive in kind and boundless in quantity.” He threw himself wholeheartedly into preparing codes covering fields as diverse as marriage, taxation and the law of evidence. Some parts of his work remain embedded in Indian law to the present day (or so Wikipedia avers).

After his return to England with a much enhanced reputation, Stephen took part in the effort to codify his own country’s laws but found far less enthusiasm for the idea in London than in Calcutta. The code of criminal law that he drafted in 1878 was never adopted but did lead to his appointment as a judge of the High Court of Justice, Queen’s Bench Division, in 1879, capping his legal career. Unhappily, his health began to deteriorate within a few years. In 1885, he suffered the first of a series of strokes. In 1891, he resigned from the bench and was created Baronet of De Vere Gardens.

Hint #5: Besides the work referred to in the question, he authored a three volume history of English criminal law.

As a relatively obscure barrister who had not yet taken silk, Stephen wrote A General View of the Criminal Law of England (1863). It was a work of a peculiar kind. As he says in the preface:

“The present work is intended neither for practical use nor for an introduction to professional study. Its object is to give an account of the general scope, tendency, and design of an important part of our institutions, of which surely none can have a greater moral significance, or be more closely connected with broad principles of morality and politics, than those by which men rightfully, deliberately, and in cold blood, kill, enslave, and otherwise torment their fellow-creatures. It surely ought to be possible to explain the principles of such a system in a manner both intelligible and interesting.”

Twenty years later he followed up with A History of the Criminal Law of England (1883). Originally designed as an update of the General View, it grew to three volumes totaling around 1,700 pages.

“It is longer and more elaborate than I originally meant it to be, but, until I set myself to study the subject as a whole, and from the historical point of view, I had no idea of the way in which it connected itself with all the most interesting parts of our history, and it has been [a] matter of unceasing interest to see how the crude, imperfect definitions of the thirteenth century were gradually moulded into the most complete and comprehensive body of criminal law in the world, and how the clumsy institutions of the thirteenth century gradually grew into a body of courts and a course of procedure which, in an age when everything is changed, have remained substantially unaltered, and are not alleged to require alteration in their main features.”⁴

Both works can be downloaded from, inter alia, the web site of the Minnesota Legal History Project.

Hint #6: He had a Bloomsbury niece.

Sir Leslie Stephen’s daughter Virginia married one Leonard Woolf and became an emblematic figure of the Bloomsbury Group. Her uncle died years before Bloomsbury came into being. One doubts that it would have met with his approbation.

Fitzjames himself and his wife, Mary Richenda Cunningham, had three sons and four daughters. Two sons became barristers, one serving from 1901 to 1914 as a judge of the High Court of Calcutta and both collaborating after their father’s death on updated editions of the Digest of the Criminal Law that he had prepared in 1877. Another son tutored King Edward VII’s eldest son, the unfortunate Prince Albert Victor. A daughter became the principal of Newnham College, Cambridge, the university’s second women’s college. Strangely enough, the seven Stephen offspring produced among them only a single child in the next generation. On the death of that grandson without male issue in 1987, the Fitzjames Stephen baronetcy became extinct.

1. One of the most popular historians during the Victorian Era. His work has a strongly anti-Roman Catholic and religiously skeptical bent. By contrast, his brother, Richard Hurrell Froude, was a leading figure in the Oxford Movement.

2. His collected contributions to this periodical alone fill three volumes totaling over a thousand pages.

3. Unrelated to the American National Review, although it was right of center politically, and one of its last issues carried an advertisement for William F. Buckley, Jr.’s new magazine.

4. The last phrase is a transparent swipe at the opponents of his own proposed criminal code for England. The effort was not utterly futile. After Stephen’s death, large portions were incorporated into the laws of Canada, New Zealand and several Australian states.