James Fitzjames Stephen (1829-1894, "Sir" as the English peerage suggest he be called), was either well ahead of his time or a dangerous eccentric, depending on which side one falls in the codification debate, once the rage in legal circles in England.

The great pity was that Stephen stood alone as a voice for the common people who could tell hair nor tail of the English criminal law - what was prohibited conduct? What was the penalty? Even less so, what might be the proper procedure if one was charged? It was a debate in which, other than the interest their member of Parliament may have taken. This,  assuming even that he (there were no female members of Parliament then allowed) could understand the technicalities and Latin terms lawyers threw into the debate. The common person, the class with most to gain from a code, had no say.

Stephen was born into privilege of English aristocracy and was called to law. In 1863, he published a book called A General View of the Criminal Law of England which purported to be an update on what William Blackstone had presented on the same topic in 1759, in Book 4 of his Commentaries on the Laws of England. It was an immediate sign of a man dedicated to legal education and access to justice.

He was opinionated too. One of his famous quotations:

"… criminal law … proceeds upon the principle that it is morally right to hate criminals, and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it."

The Indian Evidence Act 1872

James Stephen Fitzpatrick circa 1866In 1869, Stephen was appointed to a colonial council for India and there he realized the profound benefits of codification. He produced and was able to push into law, an Indian Evidence Act of 1872 which made the rules of evidence in India uniform throughout the country and readily accessible, at least to the extent that a litigant was able to read. Still, it was a clear deviation of the English model of the common law, including the unwritten custom of criminal law, never intended to be written, and a general abhorrence of English legal society towards codification generally.

But since it dealt with India and not England, the British Parliament passed the Indian Evidence Act 1972.

In 1876, Stephen published A Digest of the Criminal Law (Crimes and Punishment).

Upwards and Onwards

Fresh off his publishing success, Stephen accepted an offer of then-Attorney General John Colderidge to put together a draft criminal evidence code for England. Stephen's starting position was clear in this statement:

"To compare the Indian Penal Code with English criminal law is like comparing cosmos with chaos."

But what Stephen came up with was much more than just an evidence code. He delivered a complete draft criminal code for England. It was introduced in the House of Commons in on August 5, 1873 and referred to a committee of which Stephen was a member. The code, known then as Bill 274, had 552 sections and several schedules, once summarized as follows.

"The changes he proposed in the criminal law were many and substantial. But in the recapitulation that follows, based upon a study of all his writings, including the Code, only the major and more controversial proposals are noted: the removal of the distinction between felonies and misdemeanours, with its consequences upon arrest and mode of trial; a general re-grouping of crimes; the omission, as far as possible, of the word malice in all definitions of offences; a broadening of the concept of insanity as understood for the purpose of assessing criminal liability; a restriction in the use of compulsion as a defence; the abolition of the presumption of coercion of wives by their husbands; the riddance of the distinction between accessories before the fact and principals in the second degree; the widening of the definition of attempts; the prohibiting of the application of common law principles to certain acts or omissions so as to constitute them offences involving a public mischief; the repeal of certain provisions relating to high treason and a redefinition of others; changes in the definition of an unlawful assembly; a clarification of the legal position of a military force used in the suppression of riots; alterations in the scope of offences of judicial and official corruption, conspiring to make false accusations, or to defeat justice, and more particularly in perjury; the recasting and amending of the offence of escape; the drastic remodeling of the offence of blasphemous libel so as to ensure freedom of opinion for all religious beliefs; changes in the offences of bigamy and of seduction of a woman under age; and alteration in the law against gambling, necessarily slight as relating to an extremely delicate subject; rather novel proposals for a more effective suppression of the practice of boycotting; a redefinition of murder entailing the elimination of the elements, malice aforethought and implied malice, and the widening of the concept of provocation; the reduction from murder to manslaughter of the offence committed by a mother who causes her new born child’s death, on the ground that her power of self-control at the time is greatly weakened, and the constitution of a new offence, that of killing a child in the act of birth, before it is fully born; a fundamental revision of the definition of theft and of certain other related offences; and several material alterations in the powers of arrest."

Danger! Codifier! JF Stephen.Criminal law codification remained extremely controversial even though a full generation earlier, Jeremy Bentham (1748-1832) had championed the idea of a code proposing that the government:

"… set forth the whole of the penal law with such simplicity and clarity that the average citizen would be able to understand it and the average judge would be unable not to."

Stephen's good friend, American jurist Oliver Wendell Holmes once referred to Stephen as:

"… the ablest of the agitators for codification."

A succinct evidence act may have won the day but it was professional heresy to propose a full code, what with the almost religuious reverence English lawyers held to the common law, brought down through hundred of years from the fire pits of their long-haired ancestors. Within the legal community at-large, an altogether different view prevailed on Stephen's proposal, well stated as follows:

"It is impossible to codify the criminal law of this country…. The practical difficulties in the way of codification of the criminal law are insuperable. But even if they could be overcome, and a criminal code could be prepared, it would not be desirable to have such a code. For the criminal law is ever-changing; and changing because our judges rightly interpret its principles in accordance with the spirit of the age in which they have their being… You cannot stabilize and essentially fluctuating thing like our criminal law."1

Stephen's 1873 bill died on the order paper and then there was a brief reprieve but also, another opportunity in 1878 when:

"(Stephen) suggested to Lord Cairns (then Lord Chancellor) and Sir John Holker (then Attorney-General) that the Digest could be converted into a draft penal code. They authorised him to do this. Sir John Holker introduced Stephen's Draft Criminal Code of 1878 into Parliament that year. A Commission (Lord Blackburn, Lord Justice Lush, Mr Justice Barry and Stephen) was appointed to consider and report on that Draft Criminal Code. That body met from November 1878 to May 1879."

The final death knell of codification of the criminal law in England came on June 12, 1879, when the Chief Justice Alexander Cockburn, in the last year of his life,  published a letter vehemently criticizing the code on both points of detail and on the political question on the matter of codification of the criminal law being in the best interests of the citizenry. The Attorney General, John Folker, genuflected and withdrew the bill from the order paper, essentially killing it.

As for James Fitzjames Stephen, the perennial law reformer, he then recycled his criminal code into a Blackstone-like book, A Digest of the Law of Evidence, later described as

"... one of the most successful students' works ever published. By 1936 there had been twelve editions, and the twelfth edition was reprinted with corrections in 1946 and with further corrections in 1948."

In 1879, he was appointed to the Court of Queen's Bench but even then, he still found time to write, publishing A History of Criminal Law of England in 1883.

The Criminal Code Embryo

But the embryo of a criminal code did not go unnoticed by the parliaments of Canada, New Zealand and Australia.

In Canada, the then-Minister of Justice and future Prime Minister, John Thompson took the draft criminal code that Stephen wrote as amended, and used it as a model to what would become the Criminal Code of Canada (see Canada's Criminal Code: A History). This law was first introduced in the House of Commons of Canada in 1891. The Canadian law stated that henceforth, the English criminal common law would no longer apply in Canada; just the Canadian Criminal Code modeled, as it was, on the work of James Fitzjames Stephen.

But even the Canadian successful initiative did not come without detractors, especially Justice Henri Elzéar Tashereau (1836-1911) of the Supreme Court of Canada. Oddly, Tashereau was a Quebecer, with a proud and long tradition of codification, as heirs of the iconic Napolean civil code.

Codification Today

To James Fitzjames Stephen goes the credit for the intellectual courage to propose something outside-the-box in an area of the economy very much adverse to change, and even worse so in the late-1800s. Today, codification is once again on the horizon, especially as the European Union, of which the United Kingdom is a member, is comprised mostly of civil law nations, fans, all, of codification.

REFERENCES:

  • Duhaime, Lloyd, Canada's Criminal Code: A History
  • Heydon, John, Reflections on James Fitzjames Stephen, 29 UQLJ 43 (2010)
  • Holdsworth, William, A History of the English Law, Vol. XV (London: Methuen & Co. Ltd., 1965), pages 146-149.
  • Hopkins, J. Castell, Life and Work of the Right Honourable Sir John Thompson (London: United Publishing Houses, 1895)
  • Ilbert, C.P., Life of Sir James Stephen, 11 L. Q. Rev. 383 (1895)
  • Morse, Stephen, Thoroughly Modern: Sir James Fitzjames Stephen on Criminal Responsibility, 5 OSJCL 505 (2007-2008)
  • NOTE 1: Bowen-Rowlands, Ernest, Seventy-Two Years At The Bar (London: MacMillan and Co., Limited, 1924), quoting Harry Poland.
  • Posner, Richard, The Romance of Force: James Fitzjames Stephen on Criminal Law, 10 OSJCL 263 (2012-2013)