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All Works by Sir James Fitzjames Stephen, Unless Otherwise Stated)

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All Works by Sir James Fitzjames Stephen, Unless Otherwise Stated) Notes Abbreviations (all works by Sir James Fitzjames Stephen, unless otherwise stated): EB Essays by a Barrister ( 1862). History History of the Criminal Law ofEngland ( 1883). GV A General View of the Criminal Law of England ( 1863). (2nd edn 1890; references are to the lst edn, unless otherwise stated.) HS Horae Sabbaticae ( 1892). Life Leslie Stephen, The Life ofSir James Fit:;James Stephen ( 1895). LEF Liberty, Equality, Fraternity, ed. R. j. White (1967). CHAPTER l: CULTURE AND DEMOCRACY I. G. K. Chesterton, The Victorian Age in Literature, Home University Library edn (London, 1966) p. 3. 2. Noel Annan, 'The Intellectual Aristocracy', in J. H. Plumb (ed.), Studies in Social History: A Tribute to G. M. Trevelyan (London, 1955) pp. 243-87. 3. James Fitzjames Stephen, 'Autobiographical Fragment', University Library, Cambridge, Add. MSS 7349 ( 1884) p. 37. 4. See the excellent study by Merle M. Bevington, The 'Saturdqy Review', 185~1868: Representative Educated Opinion in Victorian England (New York, 1941). For a complete list of Stephen's contributions to the Saturday, see ibid., pp. 373-81. 5. Ibid., pp. 58-9. 6. Ibid., p. 59. 7. Ibid., p. 71. 8. Bevington, The 'Saturday Review', p. 26. 9. Ibid., p. 25. 218 Notes to pages 4-11 219 10. Anthony Trollope, Autobiograplry, ed. Frederick Page (London, 1950) p. 199. 11. Bevington, The 'Saturday Review', p. 31. Emphasis as m original. 12. Leslie Stephen, The Life q[Sir James Fit:(james Stephen (London, 1895) p. 177. (Hereafter cited as Life.) 13. Bevington, The 'Saturday Review', p. 31. 14. Norton to James Russell Lowell, 1 Jan 1869; in Charles Eliot Norton, Letters, vol. I (Boston, Mass., 1913) pp. 313-14. 15. Bevington, The 'Saturday Review', p. 35. 16. Life, p. 178. 17. John Morley, Recollections, vol. I (New York, 1917) p. 168. 18. Quoted in J. W. Robertson Scott, The Story qfthe 'Pall Mall Gazette' (Oxford, 1950) p. 148. 19. Life, p. 214. Leslie also lists the number of articles that his brother wrote for the Pall Mall from 1865 to 1878 (Life, pp. 213-14), see also Robertson Scott, The 'Pall Mall Gazette' p. 148. 20. Any attempt to assign the Pall Mall articles would call for detailed internal analysis (a task beyond the scope of this study), and would in no way alter our conclusions. 21. Life, p. 307. 22. Life, p. 96. 23. 'Liberalism', Comhill Magazine, v (1862) 71. 24. Ibid. 25. Ibid., p. 72. 26. Ibid., p. 73. 27. Ibid., p. 80. 28. J. S. Mill, 'On Liberty', in Utilitarianism, Liberty, and Representative Government, Everyman's Library edn (New York, 1951) p. 166. 29. J. S. Mill, 'Tocqueville on Democracy in America', Dissertations and Discussions, vol. II (London, 1859) pp. 1--83. 30. 'Mr. Mill on Political Liberty', Saturday Review, vn ( 1859) 186, 213. 31. Ibid., p. 186. 32. Ibid. 33. Ibid., p. 187. 34. Ibid., p. 213. 35. 'Mr. Mill's Essays', Saturday Review, VIII ( 1859) 47. 220 Notes to pages 11-19 36. 'Mr. Mill on Political Liberty', Saturday Review, VII ( 1859) 213. 37. Review in Fraser's Magazine, LIX ( 1859) 526-33. 38. G. 0. Trevelyan, Life and Letters of Lord Macaulay, vol. II (London, 1876) pp. 456-7. 39. J. C. Rees, Mill and His Ear!J Critics (Leicester, 1956) p. 9. 40. 'Mr. Mill on Political Liberty', Saturday Review, VII (1859) 214. 41. Ibid. 42. Life, p. 166. 43. 'Mr. Mill on Political Liberty', Saturday Review, VII (1859) 214. 44. Rees, Mill and His Ear!J Critics, p. 17. 45. Life, p. 20 I 46. 'Mr. Carlyle', Essays by a Barrister [EB] (London, 1862) p. 242. 47. Ibid., p. 243. 48. Ibid. 49. Ibid., p. 249. 50. John Holloway, The Victorian Sage: Studies zn Argument (London, 1953) chs 2 and 3. 51. EB, pp. 248--9. 52. Ibid., p. 251. 53. Ibid., p. 253. 54. EB, p. 247. 55. 'Mr. Carlyle', Fraser's Magazine, LXXII ( 1865) 790. 56. Ibid. Stephen also paid tribute to Benthamite Utilitarianism in a review of'[Nassau] Senior's Historical and Philosophical Essays', Saturday Review, XIX ( 1865) 4 79. 57. 'Mr. Carlyle', Fraser's Magazine, LXXII (1865) 793. 58. Ibid., p. 792. 59. 'Lord Macaulay', EB, p. 101. 60. Ibid., p. 99. 61. Ibid., p. 100. 62. 'Lord Macaulay's Works', Saturday Review, XXII (1866) 207. 63. 'The Function ofCriticism at the Present Time', in Matthew Arnold, Lectures and Essays in Criticism, ed. R. H. Super (Ann Arbor, Mich., 1962) p. 266. 64. Ibid., p. 270. 65. Ibid., p. 264. 66. Ibid., pp. 264-5. 67. Ibid., p. 275. 68. Letters, 1848-1888, ed. George W. E. Russell (London, 1895), vol. I, p. 282. Notes to pages 19-27 221 69. 'Mr. Matthew Arnold and His Countrymen', Saturday Review, XVIII ( 1864) 683. 70. Ibid. 71. Stephen argued along the same lines in his article 'French and English Logic', Saturday Review, VII ( 1859) 460. 72. 'Mr. Matthew Arnold and His Countrymen', Saturday Review, XVIII ( 1864) 684. 73. 'Mr. Matthew Arnold amongst the Philistines', Saturday Review, XIX (1865) 235. 74. 'Mr. Arnold on the Middle Classes', Saturday Review, XXI ( 1866) 163. 75. Matthew Arnold, Culture and Anarclry, ed. with introduction by J. Dover Wilson (Cambridge, 1969) pp. 46--8. 76. Ibid., p. II. 77. Ibid., pp. 53-4. 78. Ibid., ch. 3. 79. See Lionel Trilling, Matthew Arnold (New York, 1977) pp. 259--65. 80. 'Mr. Matthew Arnold on Culture', Saturday Review, XXIV ( 1867) 79. 81. Ibid. 82. Ibid. 83. Ibid. 84. For an excellent survey of the events leading up to the 1867 Reform Act, see the introduction by J. Dover Wilson to his edition of Arnold's Culture and Anarchy. 85. Ibid., p. xxvi. 86. Life, p. 224. 87. Asa Briggs, The Age tif Improvement, 1789-1867 (New York, 1960) p. 515. 88. Walter Bagehot, The English Constitution, World's Classics edn (London, 1968) p. 271. 89. 'Lord Palmerston', Pall Mall Gazette, 19 Oct 1865. CHAPTER 2: THE STATE 1. Stephen to Lord Lytton, 21 Sep 1890, in Horae Sabbaticae [HS], 3 vols {London, 1892). 2. Life, p. 226. 3. Life, p. 123. 222 Notes to pages 27-37 4. See Stephen's remarks on Mill's famous essays on Bentham and Coleridge, in 'Mr. Mill's Essays', Saturday Review, VIII ( 1859) 46. 5. English Works of Thomas Hobbes, II vols (London, 1839). 6. 'Hobbes's Leviathan', HS, vol. II, p. 20. 7. 'Hobbes on Government', HS, vol. II, pp. 1, 4. 8. Sir Frederick Pollock, An Introduction to the History rif the Science rif Politics, Beacon Press edn (Boston, Mass., 1960) p. 107. 9. Leviathan, ch. 11. IO. 'Hobbes's Leviathan', HS, vol. II, p. 29. II. Leviathan, ch. 13. 12. Ibid., ch. 17. 13. 'Hobbes on Government', HS, vol. II, p. 5. 14. Ibid. 15. Ibid., pp. 6-7. 16. 'Sovereignty', HS, vol. II, pp. 55-6. 17. 'Hobbes on Government', HS, vol. II, p. 12. 18. Ibid. 19. Ibid., p. II. 20. Michael Oakeshott's Introduction to Leviathan, Blackwell's Political Texts (Oxford, 1946) p. 1vii. 21. 'Cobbett's Political Works', HS, vol. III, pp. 224-5. 22. 'Hobbes on Government', HS, vol. II, p. 11. 23. Ibid. 24. 'Sovereignty', HS, vol. 11, p. 55. 25. Ibid., p. 63. 26. Ibid., p. 56. 27. Ibid. 28. Ibid., p. 69. 29. Ibid. 30. Writing for Fraser's Magazine in 1863, Stephen advocated British neutrality on the American Civil War. See 'England and America', Fraser's Magazine, LXVIII (1863) 419. 31. 'Sovereignty', HS, vol. II, pp. 63-4. 32. Ibid., p. 64. 33. Ibid., p. 66. 34. See the excellent study by Bernard Semmel, The Governor Eyre Controversy (London 1962); for Stephen's role see ch. 7, 'The Prosecution'. Leslie Stephen discusses his brother's contribution to the case in Life, pp. 227-31. Notes to pages 38-44 223 35. Stephen to his mother, 26 Mar 1867 (University Library, Cambridge, Add. MSS 7349). 36. 'Locke on Government', HS, vol. II, p. 150. 37. Ibid., p. 153. 38. 'Tom Paine', HS, vol. III, p. 187. 39. Ibid., p. 199. 40. J. S. Mill, Autobiography, World's Classics edn (London, 1940) p. 191. 41. 'Bossuet and the Protestants', HS, vol. II, p. 100. 42. See especially 'De Maistre- Soirees de St. Petersbourg' and 'De Maistre's Principe Generateur', HS, vol. III, pp. 250, 287. 43. 'Tom Paine', HS, vol. II, pp. 200--1. 44. John Morley, Burke (New York, 1879) p. 167. 45. 'Edmund Burke',SaturdayReview, v (1858) 372. 46. 'Burke on the English Constitution', HS, vol. III, p. 116. 47. See A. M. Osborn, Rousseau and Burke: A Study of the Idea of Liberty in Eighteenth Century Political Thought (London, 1940), which argues convincingly that their principles are not opposed but similar, though they come to very different conclusions. 48. 'Burke on the French Revolution', HS, vol. III, p. 140. 49. Ibid., p. 142. 50. See, for example, the Preface to Burke's Politics, ed. Rossj. S. Hoffman and Paul Levack (New York, 1949); and Peter J. Stanlis, Edmund Burke and Natural Law (Ann Arbor, Mich., 1958). 51. 'Burke on the English Constitution', HS, vol. III, pp. 119-20. 52. Ibid., p. 122. 53. Ibid., p. 127. 54. 'Burke on Popular Representation', Saturday Review, xx ( 1865) 394. 55. 'Burke on the English Constitution', HS, vol. III, p. 129. 56. 'Burke on Popular Representation', Saturday Review, XX ( 1865) 395. 57. 'Burke on the French Revolution', HS, vol. III, pp. 147-8. 58. Ibid., p. 149. 59. 'Burke on Popular Representation', Saturday Review, XX (1865) 395. 60. Ibid. 61. Ibid. 224 Notes to pages 44-52 62. Ibid. 63. 'Burke on the French Revolution', HS, vol.
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