The Influence of Sir James Stephen On The Law of Evidence : Features

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The influence of Sir James Stephen on the

law of evidence*
By J D Heydon
Stephen’s career in summary

He was the grandson of James Stephen, who assisted his
brother-in-law, William Wilberforce, in the campaign to
end the slave trade. He was the son of Sir James Stephen,
under-secretary of the Colonial Office from 1836 to
1847, who played a key role in the abolition of slavery
itself, drafted the Slavery Abolition Bill in 48 hours in
1833, and was acclaimed by Deane and Gaudron JJ
for anticipating the doctrine there recognised by 150
years.1 His younger brother, Leslie Stephen, became a
highly respected man of letters, and was the father of
Vanessa Bell and Virginia Woolf. His eldest daughter was
the first principal of Newnham College, Cambridge. He
and his family were or became related to many leading
intellectual and political figures like members of the
Macaulay, Dicey, Trevelyan, Strachey and Thackeray
families, and knew or came to know many others – for
example, Carlyle (whose executor Stephen became),
Maine (who taught him while he read for the bar), J
A Froude, Harcourt and G H Lewes. He was educated
unhappily at Eton. He claimed there to have learned ‘the
lesson that to be weak is to be wretched, that the state when Stephen was involved in the unsuccessful attempt
of nature is a state of war, and Vae Victis the great law of to prosecute Edward Eyre, governor of Jamaica, for
nature.’2 He then went briefly to Kings College, London murder after his savage suppression of rioting in that
on his way to Trinity College, Cambridge. He left that colony in 1865.6 His ability struck a young and then quite
latter university prematurely. He then read for and was unknown screw manufacturer, Joseph Chamberlain, for
called to the bar. Being conscious of the slightness of whose firm he acted in a patent arbitration in the later
his legal education, he then read for an LLB from the 1860s.7 In 1863 he published A General View of the Criminal
University of London. In 1855 he married, and was to Law of England – an able and original work, still well worth
have nine children, of whom four predeceased him. reading. Although it was not intended for students or
Until 1869 he practised at the bar on the Midland practitioners of law, Mr Justice Willes ‘kept it by him on
Circuit. Success was at best mild and inconstant. He did, the bench, … laid down the law out of it’, and called it
however, appear in two causes célèbres. One was the a ‘grand book’ .8 Stephen took silk in 1868. In the same
defence, with mixed results, of the Rev Rowland Williams year he produced the seventh edition of Roscoe’s Digest
at trial on charges of heresy, one relating to a denial of of the Law of Evidence in Criminal Cases. Throughout the
punishment in the next world.3 Stephen did not appear on 1850s and 1860s he published an enormous quantity
Williams’s successful appeal to the Privy Council,4 when of the higher journalism on a range of subjects, partly
in the words of a mock epitaph, Lord Westbury LC had: because of financial pressure and partly because of a
… dismissed Hell with costs
strong urge to mould public opinion.
And took away from orthodox members of the Church of On the recommendation of his predecessor, Maine,
England Stephen was in 1869 appointed as legal member
Their last hope of everlasting damnation. 5 of the viceroy’s Legislative Council in India – for five
years, though he only stayed two and a half. That body
The other cause célèbre took place later in the decade,
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comprised the most senior British officials in India, some had managed his life more carefully.
unofficial members and a couple of Maharajahs. It was
On 21 November 1877, Leslie Stephen wrote of his
unelected. It was not responsible to any legislature save,
brother to the future Mr Justice Holmes: ‘Nobody has
indirectly, the Imperial Parliament at Westminster. But for
worked harder for every step & has been less favoured
the rest of his life Stephen admired its unity of purpose,
by good luck.’19 The second limb of that statement is
the expertise of the officials it relied on, and its efficiency.
probably true. The first limb is certainly true. All his life
He there drafted twelve Acts and had a part in eight other
he recklessly and prodigally expended titanic energy
enactments. Among his leading achievements were the
in everything he did. These efforts led Stephen to
Indian Evidence Act 18729 and the Indian Contracts Act
become a towering figure in late Victorian England.
1872.10 His term of office was regarded as an astonishing
For example, although Stephen’s political activities
triumph by most contemporary and subsequent Indian and
had not extended beyond unsuccessful attempts to
English opinion.11 His career had turned the corner.
achieve election to the House of Commons in the
He returned to the bar in 1872 and practised there until Liberal interest in 1865 for the seat of Harwich and
1879. In 1873 he published Liberty, Equality, Fraternity, 1873 for Dundee (when he was bottom of the poll,
an attack on John Stuart Mill. He resumed periodical with about 10 percent of the votes),20 the dying Disraeli
journalism. But he also prepared an evidence code, a in 1881 told Lord Lytton: ‘It is a thousand pities that
homicide code and a criminal code, introduced into J F Stephen is a judge; he might have done anything
parliament but not enacted, respectively, in 1873,12 1872 and everything as leader of the future Conservative
and 187413 and 1878–1882.14 From 1875 to 1879 he was Party.’21 In 1873 Sir John Coleridge, Liberal attorney-
professor of common law at the Inns of Court. He published general, urged the prime minister, W E Gladstone, to
A Digest of the Law of Evidence in 1876,15 which ran into appoint Stephen, then aged 44, as solicitor-general
12 editions, A Digest of the Criminal Law (Crimes and on the ground that he ‘is a very remarkable man with
Punishments) in 1877, which ran into seven editions, many elements of greatness in him.’22 The vacancy in fact
and, with his brother, Herbert Stephen, A Digest of the went to another highly regarded coming man, Sir Henry
Law of Criminal Procedure in Indictable Offences in 1883. James. Stephen became regarded as a great authority on
From 1879 to 1891 he served as a judge of the Queen’s legal and Indian affairs. He had been the secretary of a
Bench Division. Despite the hard labours and harder royal commission on education in 1858–1861, he sat
responsibilities of that post, and despite other calls on on royal commissions on copyright (1875 and 1876)
his time, in 1883 he published A History of the Criminal and he sat on commissions on fugitive slaves (1876)
Law of England in three volumes – a work some have and extradition (1878). He gave a great deal of advice
criticised, but not the immortal Maitland.16 to Lord Lytton, viceroy of India from 1876 to 1880. He
was heaped with academic honours, both English and
Up to this point in his life – when he was aged 54 –
European, and state honours.
his prodigious labours had been sustained by excellent
physical and mental health. But from this point onwards
Stephen’s appearance and character
his health and vigour began to decline.17 He seemed to
find the burdens of judicial office, particularly in capital Stephen was a man of striking and formidable personality.
trials, oppressive. He still managed to publish, in 1885, A Cambridge friend observed:
The Story of Nuncomar and the Impeachment of Sir Elijah his singular force of character, his powerful … intellect, his
Impey, a defence of Chief Justice Impey against Macaulay’s Johnsonian brusqueness of speech and manner, mingled
charge that he had committed judicial murder during with a corresponding Johnsonian warmth of sympathy
with and loyalty to friends in trouble or anxiety, his
the time of Warren Hastings’s governorship of Bengal.
sturdiness in the assertion of his opinions, and the
But in that year he had his first stroke.18 Six years later ill maintenance of his principles, disdaining the smallest
health compelled his retirement. Three years after that he concession for popularity’s sake. 23
died at the age of 65. He might have lasted longer if he
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Until his decline late in life, those qualities never What is to be made of the many paradoxical aspects
changed. He had a ‘resounding, deep bass voice’ and a of Stephen’s career? For it is paradoxical that a man
‘knock-down manner’.24 Radzinowicz said: ‘In physical who did so badly at Cambridge that he chose to leave
appearance [Stephen] bore a strong resemblance to prematurely because he knew he would never do well
a cliff, and his mental makeup was no less craggy.’25 enough to be elected a fellow ended up writing two
The warmth and affection he displayed in private life books on criminal law that continue to be read many
contrasted with his public image: decades after those of his contemporaries have ceased
A head of enormous proportions is planted, with nothing to be. It is paradoxical that a man whose long career at
intervening except an inch-and-a-half neck, upon the the bar wavered between failure and insecurity wrote
shoulders of a giant. Force is written upon every line of his
countenance, upon every square inch of his trunk … [H]e
It is paradoxical that a man whose long
lacks geniality and play of fancy, but in their stead he has career at the bar wavered between failure
a grim and never-flagging perception of what he means
and what he wants … [He treats] toil as if it were a pastime.26 and insecurity wrote three books – his
digests – that influenced generations of
Lytton Strachey, nephew of his friend John Strachey,
said: ‘His qualities were those of solidity and force; barristers.
he preponderated with a character of formidable
grandeur, with a massive and rugged intellectual sanity, three books – his digests – that influenced generations of
a colossal commonsense.’27 He was ‘Johnsonian’ not only barristers. It is paradoxical that so successful a legislator
in conversational style – the Johnson who said: ‘Well, in India departed halfway through his term to spend
we had a good talk’, to which Boswell replied: ‘Yes, sir, the next decade failing to persuade the Westminster
you tossed and gored several persons.’ He was also Parliament to follow suit. It is paradoxical that a man
Johnsonian in his conservatism, his moral interests, his with his unpopular views on the government of India
tragic sense of life, his contempt for praise.28 He had a devised so many laws for India that are still in force
pitiless dislike for what he saw as sentimentality.29 He did today. It is paradoxical that someone who was never
not merely refuse to evade unpleasant consequences, he elected to any public position achieved a great national
welcomed them. He was a master of many methods reputation based only on highly specialised legal
of thought and styles of writing – precise analysis, studies and polemical periodical journalism. What was
vitriolic ridicule, ferocious invective, soaring rhetoric. the key to this strange life? That is not a question for
Radzinowicz said of him: examination this evening. Instead the question is: what
There was a puritan side to Stephen; and his Puritanism was Stephen’s influence?
derived viability from an almost physiologically reasoned
acceptance of the survival of the fittest. He was convinced of the The question can be approached from eight angles,
damned unworthiness of mankind and of their incurable some overlapping. They are: barrister, academic lawyer,
apathy towards salvation. He was a preacher of the publicist, political thinker, judge, criminal lawyer,
inevitability of pain and sorrow, our everlasting advocate for codification and evidence lawyer. The first
companions from the cradle to the grave, and of the
seven will be dealt with only briefly.
individual insignificance of human life, especially when
conceived, felt and assessed in terms of a pleasurable
experience.30 One: Stephen’s influence as barrister
His whole life was dedicated to duty as he saw it. For It seems that Stephen was a distinguished speaker,
him virtue and happiness flowed only from active, and a better barrister than solicitors thought him to
restless and endless struggle: be. His oratory at the Cambridge Union brought him
He could see no alternative for mankind but to lead a life some fame.32 Chamberlain regarded his final address
of submissiveness and rectitude, in heroic self-abnegation, in the arbitration in which he had engaged Stephen
like a regiment of soldiers engaged in battle, or a ship’s as ‘most masterly’.33 Mr Justice Wills remarked in open
crew bringing their cargo home in the teeth of a tempest.31

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court that Stephen had defended an accused person, time, and too short to enable him to build up the kind of
charged with murder, ‘with a force and ability which, reputation which leads to influence. Its real significance
if anything could console one for having to take is that it stimulated his interest in other activities in
part in such a case, would do so’, and a newspaper which he did establish a solid reputation – his digests
report of Stephen’s speech at that trial stated that it ‘kept and codes.
his audience listening “in rapt attention” to one of the
ablest addresses ever delivered under such circumstances’.34 Third: Stephen’s influence as publicist
Leslie Stephen informed his friend, the future Mr Justice Sir Keith Thomas recently remarked:
Holmes, in a letter of 25 June 1868, that his brother’s
By the end of the century, there had emerged in Britain a
‘talent is specially in the speaking line’.35 An address by recognisably modern academic profession. The torch of
Stephen at Eton in the late 1870s had so powerful an literary culture, previously carried by the metropolitan
impact on George Nathaniel Curzon, future viceroy of man of letters and the serious Victorian periodical, was
India, that Curzon recalled it all his life.36 But whether or not he taken over by the professor and the learned journal.38
could be called ‘great’ as an advocate, he established

Stephen was a bridge between those two worlds. One
no school. No particular tradition flows from him.
of the many torches Stephen carried was the torch of
literary culture, taking that expression in a broad sense.
Second: Stephen’s influence as academic lawyer
He was certainly a metropolitan man of letters. And if
Stephen’s time as an academic lawyer tends to be ever a man helped keep the serious Victorian periodical
overlooked. But his tenure has some significance. To going, it was him. Although those activities were largely
begin with, it seems that he was a successful teacher. anonymous, it was through them that he first became
His professional achievements as counsel gave him the well-known. Despite the bar being supposedly his
background for it. primary career, between his youth in the early 1850s
It is almost certain that the sole mode of instruction and his decline in the late 1880s, save for the period
adopted by Stephen as professor of common law at the from 1869 to 1872 in which he was in India, he
Inns of Court was lecturing. Someone of impressive contributed on a prodigious scale to serious Victorian
physique and forceful personality who was good at newspapers and periodicals, some published daily or
riveting the attention of juries, judges, large assemblies weekly or fortnightly, some monthly, some quarterly.
and small groups is likely to have been capable, with Some of the articles in those periodicals were on legal
practice, of lecturing well. subjects, and there were also learned publications on
legal questions in legal journals. In addition, he wrote
According to Leslie Stephen:
numerous letters in his characteristically dramatic style
He invariably began his lecture while the clock was striking to The Times in the 1870s and 1880s on Indian and Irish
four and ceased while it was striking five. He finally took
affairs. The quantity of these periodical contributions
leave of his pupils in an impressive address when they
was enormous. For example, between 1865 and 1869
presented him with a mass of violets and an ornamental
card from the students of each inn, with a kindly letter by he contributed approximately 850 articles, 200 notes
which he was unaffectedly gratified. His class certainly had and 50 letters to The Pall Mall Gazette.39 Between 1855
the advantage of listening to a teacher who had the closest and 1868 he contributed at least 200 articles and
practical familiarity with the working of the law, who had notes to The Saturday Review.40 Their range was wide,
laboured long and energetically to extract the general
extending far beyond legal subjects to literary, historical,
principles embedded in a vast mass of precedents and
technical formulas, and who was eminently qualified to ecclesiastical and philosophical topics. At least to this
lay them down in the language of plain commonsense, reader, the quality seems high. Leslie Stephen, on the
without needless subtlety or affectation of antiquarian other hand, criticised them in various respects. Thus he
knowledge.37 said of the 55 articles published in The Saturday Review
in the 1860s and collected in Horae Sabbaticae (1892):
But Stephen’s career as a teacher of law was only part-

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These articles deal with some historical books which volumes containing 88 of his articles from The Saturday
interested him, but are chiefly concerned with French and Review.45 These volumes have not been reprinted, nor
English writers from Hooker to Paley and from Pascal to
have any of his other articles. His position is similar to that
De Maistre, who dealt with his favourite philosophical
problems. Their peculiarity is that the writer has read his of his contemporary at Eton, another of history’s losers,
authors pretty much as if he were reading an argument in Robert Cecil, future Marquess of Salisbury and prime
a contemporary magazine. He gives his view of the intrinsic minister,46 whose many articles in The Saturday Review, The
merits of the logic with little allowance for the historical Quarterly Review and other journals were republished
position of the author. He has not made any study of the
only to a small degree in book form shortly after his
general history of philosophy, and has not troubled himself
to compare his impressions with those of other critics. The
death,47 and never reprinted. Yet in the case of both
consequence is that there are some very palpable Stephen and Salisbury the enterprise of republication
misconceptions and failure to appreciate the true relation of all their works, or at least significant parts of them,
to contemporary literature of the books criticised. I can would be at least as worthwhile as enterprises which
only say, therefore, that they will be
have been or are being carried on in
interesting to readers who like to see
our age – the publication of the whole
the impression made upon a
masculine though not specially of Gladstone’s often fragmentary diaries,
prepared mind by the perusal of and the publication of the whole of
certain famous books, and who relish Disraeli’s often trivial letters.
an independent verdict expressed in
downright terms without care for the
Fourth: Stephen’s influence as
conventional opinion of professional
political thinker
critics. 41
The most striking product of Stephen’s
Although Leslie Stephen seemed to role as a polemical journalist was Liberty,
intend a pejorative element in the Equality, Fraternity, a collection of articles
last sentence, the qualities there composed while, and after, returning
referred to may be thought to be from India, originally published in The
quite attractive ones. Leslie Stephen Pall Mall Gazette, a daily newspaper,
also informed Charles Eliot Norton and appearing in book form in 1873,
on 23 September 1894 that in fields with a second edition in 1874.48 Its lack
of which he did not know much, his brother was ‘like of influence may be gauged from the fact that there
an elephant trampling through a flower garden’.42 was no further edition until 1967. There was a brief
On the other hand, in the same letter he spoke of his revival of interest in the work during the ‘Hart-Devlin’
brother’s ‘extraordinary powers’. On 19 May 1894 he controversy of the 1950s and 1960s. H L A Hart said in
told Norton that his brother was ‘a very big man, with 196249 of Liberty, Equality, Fraternity and Sir Patrick Devlin’s
a great deal to say that was very valuable, even when he Maccabean Lecture on ‘The Enforcement of Morals’50 in
was apparently outside his proper ground.’43 1959: ‘Though a century divides these two legal writers,
There is considerable force in what Maitland said of the similarity in the general tone and sometimes in the
Leslie Stephen’s biography of his brother: detail of their arguments is very great.’ Devlin, having
never read Liberty, Equality, Fraternity, was not conscious
a trifle too much may have been written of the great
jurist’s ‘limitations’ …. [T]hose who are better able than
of any influence, and could only obtain a copy from the
Leslie was to appraise what Fitzjames did in the field of law Holborn Public Library ‘with great difficulty’; it was
and legal history will wonder at the amount of vigour, ‘held together with an elastic band’.51 John Roach, a
industry and literary power that was displayed by him in sympathetic analyst of the work in the 1950s, said it was
other provinces.44
‘not easy to come by’.52 The book has been described as
But Stephen as a publicist has had no influence beyond the ‘finest exposition of conservative thought in the latter
his own age. In his own lifetime he published four half of the 19th century’.53 Even a foe like Hart thought

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it ‘ sombre and impressive’.54 It is an attack on various of have thought it right to have diluted and restrained the
the writings of John Stuart Mill and his sympathisers, striking literary style he employed for other purposes.
particularly On Liberty. But Leslie Stephen put his finger
Cross praised Stephen’s judgments in crime thus:
on a difficulty in grasping its virtues. On 30 March 1874
No one interested in mens rea can ignore Stephen J in
he wrote to Charles Eliot Norton: ‘It is good hard hitting,
Tolson61 just as no one interested in possession can ignore
but I think rather too angry, and not intelligible unless his judgment in Ashwell.62 The summings-up in Doherty63
one remembers all that he said, and all that they said – and Serné64 are important on drunkenness and the felony-
which one doesn’t.’55 Naturally, modern readers are even murder rule respectively, but none of these cases is a
less able to remember all that Stephen said, let alone landmark in the sense in which Rylands v Fletcher65 and
Donoghue v Stevenson66 are landmarks in the law of tort.
all that his critics and targets said. However, its bleakly
Indeed, Woolmington67 apart, it may be doubted whether there
unsentimental hostility to democracy and liberalism
are any such cases in the criminal law. In the absence,
only shocks such few modern readers as it has. It is of until 1907, of a satisfactory appellate jurisdiction, the
outstanding quality, but quite lacking in influence. subject has been built up by judicial practice, legislation
and authoritative textbooks rather than by climacteric
Fifth: Stephen’s influence as judge judgments.68
Stephen retired from judicial office in 1891 after Lord In short, nisi prius judges largely engaged in trying
Coleridge CJ drew to his attention press criticisms of his crime, in the period before the Court of Criminal
performance, which led him to seek medical advice and Appeal was introduced in 1907, tended to lack the
to resign in consequence of it. The justice of this criticism opportunities to achieve a reputation which were open
of his closing years on the bench has been questioned,56 to those involved in civil non-jury work, like Sir George
but it has tended to overshadow his judicial reputation as Jessel MR, or appellate work, like Bowen LJ. Despite
a whole. There seems to be no doubt about his capacity the clouds over Stephen’s judicial achievement, no
to control his court. His ‘strong physique, and the deep thorough study of it has ever been undertaken, and
voice which, if not specially harmonious, was audible to the time for dispelling those clouds or identifying them
the last syllable in every corner of the court, contributed precisely will not arrive until it is undertaken.
greatly to his impressiveness.’57 Twining described
An estimate of Stephen’s judgments on evidence will
him as ‘a forceful, if somewhat simple-minded, judge’.58
be postponed to a consideration of his influence on
Radzinowicz more justly said that Stephen’s judgments
that subject as a whole.
had the same characteristics as his other work – ‘an
uncanny faculty for sifting the grain from the chaff,
Sixth: Stephen’s influence on criminal law
for brushing aside a multitude of details, irrelevant,
inconsistent and confusing, and for dissecting out the As recently as 2005, Lord Bingham of Cornhill, in
nucleus of a legal argument.’59 But while he was a criminal discussing the scope of duress, referred approvingly
judge of real quality, he sat towards the end of a period to Stephen’s ‘immense experience’.69 That experience
which Sir Owen Dixon thought the future would hold has generated respect. Respect has brought Stephen
to be the ‘classical epoch’ of English law . Sir Owen’s influence in this field. That influence proceeded down
ground was that ‘[a]mong legal historians, jurists three channels. One was the influence of his judgments
and judges of that period the qualities of scholarship, – limited, but real. A second and greater influence lay in
penetration, clearness of exposition and felicity of his bills for a homicide code and a criminal code. Neither
expression appeared to an extent and in a degree that were enacted, but the latter had substantial influence
had not before been equalled.’60 These qualities were on legislation adopted in Canada in 1892, New Zealand
revealed in Stephen’s judgments, but not so as to make in 1893, Queensland in 1899,70 Western Australia in 1902,
them pre-eminent amongst those of his contemporaries. Tasmania in 1924 and the Northern Territory in 1983.
Another factor which may have led to a discounting of Thus Stephen’s criminal code, despite rejection in
Stephen’s judgments is that on the bench he appears to England, has been the primary influence on the criminal

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law of half the North American continent and most of ablest of the agitators for codification’.77 It is doubtful
Australasia. Thinly populated though these vast territories whether major English commercial statutes like the
might be, this was not a trivial achievement.71 A third Bills of Exchange Act 1882, the Partnership Act 1890 or
was the extensive literature he produced on criminal law, the Sale of Goods Act 1893, which were widely copied
particularly A General View of the Criminal Law of England throughout the common law world, and remain in
(1863) and A History of the Criminal Law of England force essentially in their original form to this day,
(1883). Here some of his personal ideas were more would have been enacted but for Stephen’s work in
striking than influential, for example his theory that the familiarising English legal opinion with the idea of codes.
primary goal of punishment is not reform, deterrence, Sir Frederick Pollock, the framer of one of those statutes
incapacitation or retribution, but strengthening society and the author of a Civil Wrongs Bill for India drafted in
and respect for the rule of law by denouncing the wrong 1882–1886 which was never adopted,78 said they were
done72 – although Cross, writing in 1978, thought this ‘distinctly attributable to his example’,79 and this was also
was still influential with English judges.73 Others of his acknowledged by the framer of others, Sir Mackenzie
proposals for change have come to pass many years Chalmers.80
after his death, though it is uncertain whether a direct
line of influence is always traceable – abolition of the Eighth: Stephen’s influence on evidence
felony-murder rule (a campaign he began in 1857 The sources of Stephen’s influence on evidence are
and continued for over 20 years74), abolition of the to be found to a limited extent in his decisions, but
felony-misdemeanour distinction, abolition of marital primarily in the Indian Evidence Act and his Digest on the
coercion, the recognition that words may constitute Law of Evidence. He drafted an evidence code for England,
provocation, and simplification of the law of theft. but for reasons to be given, its influence has been nil.
It is doubtful whether major English commercial statutes like the Bills of Exchange Act
1882, the Partnership Act 1890 or the Sale of Goods Act 1893, which were widely copied
throughout the common law world, and remain in force essentially in their original form
to this day, would have been enacted but for Stephen’s work in familiarising English legal
opinion with the idea of codes.
Influence of Stephen’s decisions

Some of his ideas were rejected by future lawmakers. In
1883 he expressed the view that the criminal law should Some of Stephen’s evidence decisions concern rules that
recognise a defence of necessity of the kind rejected the have changed,81 or are mere illustrations of established
next year by the decision of five judges of the Queen’s principle.82 But others continue to be cited in that
Bench Division in R v Dudley and Stephens.75 Perhaps diminishing number of jurisdictions in which the
inconsistently, he did not favour a defence of duress, common law of evidence has preserved its substantial
although he did consider that the lessened moral guilt immunity from codification or other statutory change
of an accused person who committed a crime under – which rules out half the Australian jurisdictions, New
duress should be punished less severely.76 Zealand and to some extent England. Some have interest
in illustrating particular distinctions.83 The principal
Seventh: Stephen’s influence on codification judgment for which Stephen is remembered is R v Cox
Despite his failures to persuade parliament to enact and Railton.84 In that case he prepared the judgment of
his homicide, evidence and criminal codes, he had the court for Crown Cases Reserved (the other nine
a marked indirect influence by changing the climate judges being Grove J, Pollock and Huddleston BB, Lopes,
of opinion. Mr Justice Holmes rightly called him ‘the Hawkins, Watkin Williams, Mathew, Day and Smith JJ)

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on the exclusion from legal professional privilege of was a field in which nineteenth century English law had
communications to guide or help the commission of been heavily influenced by the use of juries.87 Despite English
crimes. The court saw the case as being ‘of great general evidence law having grown up in a jury environment,
importance’,85 and it was argued twice, the second time the adoption of parts of it by the Act has largely survived
before an enlarged court. The judgment contains a full in the non-jury environment of India.
analysis of authority, and has been cited many times
The Act was enacted, fifteen years after British rule
since. It remains the leading case in jurisdictions where
had nearly been ended through force, by an imperial
the common law prevails. However, it must be said that
government which, while in some ways open and
if Stephen’s influence rested on his evidence judgments
sensitive to public opinion, was not democratic,
alone, it would be as slight as that which his brethren
representative or responsible. The Act remained in force
on the bench in R v Cox and Railton have had.
under the relatively authoritarian governments of the
Direct influence of the Indian Evidence Act late nineteenth century, under governments increasingly
liberalised by a movement towards democracy and by
The second source of Stephen’s influence is the Indian
the introduction of federal government from 1935, and
Evidence Act. No one person has ever had so much
in the independent federal democratic republic which
influence on so important and far-reaching a piece of
has existed since 1947. Yet its creator was opposed to
legislation affecting so many jurisdictions and so many
democracy anywhere, and opposed to independence
people.86
for India. He saw Imperial rule as the rule of a trustee –
After independence the Act was extended to, and remains in force in, the whole of the
Republic of India (save for Jammu and Kashmir). It is also in force in Pakistan, Bangladesh,
Sri Lanka and Burma. It has heavily influenced the laws of Malaysia, Singapore, Brunei, Kenya,
Nigeria, Uganda, Zanzibar, parts of the West Indies and even, for a time, parts of Australia –
the Christmas and Cocos (Keeling) Islands.
The Indian Evidence Act, a compact, terse and forceful but the duration of the trust was, if not perpetual, at least
enactment, 69 pages in length. It is the result of a complex indefinite. From time to time after he left India he made
and subtle combination by Stephen of parts of English public pronouncements along these lines, offering, as
law, some adopted without change, some modified; Sir Penderel Moon said, a ‘sophisticated exposition
parts of earlier Indian legislation, some adopted without of the views of the man in the street’.88 His opinions on
change and some modified (particularly Act II of 1855 how India should be governed politically, as distinct
and to a much lesser extent the Code of Criminal Procedure from judicially, may have corresponded with those
of 1861); to a limited extent parts of an Evidence Bill 1868 of the man in the street in England, but they began
prepared by the Indian Law Commission in London; to fall out of favour, both with English establishment
and numerous original ideas of Stephen’s own. It was opinion and with Indian opinion, almost from the
to be applied to the circumstances of India – the home time they were enunciated. Modernising trends of
of many races, tribes, castes, privileged and exclusive a revolutionary kind came to invalidate them – the
callings, communities and classes, adhering to a wide introduction of Western ideas; the rise of the press; an
range of creeds and customs, living in varied regions increase in tertiary education; an acceleration of Indian
and climates, and speaking innumerable languages. participation in administrative and judicial work; the
Indian circumstances, various as they were, were very development of a middle class which favoured liberal
different from English circumstances. In particular, in democratic institutions; the unifying influence of the
India there was, and is, little use of jury trial. Evidence telegraph, the road, the canal and the railway; and the

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Malaysia, Singapore, Brunei, Kenya, Nigeria, Uganda,

Zanzibar, parts of the West Indies and even, for a time,
parts of Australia – the Christmas and Cocos (Keeling)
Islands. T O Elias said it ‘is a model of its kind’, and he said
of Stephen’s A Digest of the Law of Evidence, which was
partly based on it, that it ‘seems to have become a kind
of model for nearly all subsequent colonial legislation
on the subject’.89 So Stephen’s vision of evidence law
continues by regulating the litigious affairs of nearly two
billion people. His immense stature in India is captured
by a saying of Mr Gopal Subramanium, solicitor-general
for India: ‘We in India think that Stephen wrote Keats’s
‘Ode on a Grecian Urn’.’
On the strength of the Indian Evidence Act, Stephen

may be described as being in some senses the greatest
evidence codifier since the age of Bentham – perhaps
the greatest in history. What explicit influence has he had
on his modern successors? Very little. In Australia, the
639 pages of the Australian Law Reform Commission’s
Interim Report on Evidence (1985) (ALR 26) refer to
Stephen only in relation to relevance. The Report said:
The attempt by Stephen to elucidate in detail particular
types of relevant evidence, while providing a useful guide,
tends to be misleading. Since relevance is largely a matter
of logic and experience, and since the variety of relevance
problems is co-extensive with the ingenuity of counsel in
growth of capitalism on a scale which made India one using circumstantial evidence as a means of proof, it is
of the world’s largest commercial and industrial powers suggested that any attempt to detail the kinds of relevant
by 1918. Nonetheless the Act – the work of so great an evidence is doomed to failure. Questions of relevance
imperialist as Stephen – was retained after British rule cannot be resolved by mechanical resort to legal formulae.
In the circumstances of each case, the judge must be
ceased in 1947.
allowed flexibility in evaluating the probabilities on which
Some of the drafting has caused disputes. But the Act evidence turns. 90
has never been repealed. Although it has been amended
ALRC 26 also joined the long line of those who had
it has not been changed substantially. It was examined
criticised Stephen’s ‘declared relevance’ technique.91 The
twice with great thoroughness by the Law Commission
only work by Stephen referred to in the bibliography is
of India, in 1977 and 2003, but no proposal for radical
the second edition (1890) of A General View of the Criminal
amendment was made then, or at any other time. It was
Law of England, which, unlike the first, contained little
enacted only for British India (and thus for places like
material on evidence. The 320 pages of the Australian
Aden which were technically part of British India). But it also
Law Reform Commission’s Final Report on Evidence
went into force in numerous other parts of India (in some
(1987) (ALRC 38) did not refer to Stephen at all. The
of the princely states) before 1947. After independence
controversial Eleventh Report of the English Criminal Law
the Act was extended to, and remains in force in, the
Revision Committee on Evidence (General) in 1972, which
whole of the Republic of India (save for Jammu and
after many years has come to have a decisive impact on
Kashmir). It is also in force in Pakistan, Bangladesh, Sri
the modern statutory law of evidence in England, only
Lanka and Burma. It has heavily influenced the laws of

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referred to s 26 of the Indian Evidence Act (confessions Evidence Act, or whether it followed the earlier Indian
made while in custody of a police officer only admissible legislation on which s 167 was based, or whether it had
if taken before a magistrate)92 but declined to follow it, an independent source.
and quoted the criticism made in the Digest93 of the
The Indian Evidence Act also contained provisions
common law rule permitting evidence of the good
(ss 32(2) and 34) for admitting business records not
reputation of witnesses.94 The Law Reform Commission of
introduced in the West until many decades had passed.
Canada did not mention Stephen – nor, indeed, anyone
But the authors of those reforms do not seem to have
else – in its brief Report on Evidence (1975). The American
used the Indian Evidence Act as an explicit source.
Law Institute’s Model Code of Evidence (1942) did not
mention Stephen. Nor does he appear in the copious The modernity of the Indian Evidence Act can be
citations in the 1970 Report of the Committee on Rules illustrated in numerous other ways. The Indian
of Practice and Procedure of the Judicial Conference of Evidence Act relaxed the hostile witness rules in ss 154-
the United States, which led to the Federal Rules of 155 in a manner very close to modern provisions like
Evidence. s 38 of the Evidence Act 1995 (Cth). Section 157 also
anticipated modern legislation permitting certain prior
consistent statements to be used not merely on credit
What explicit influence has he had on his
but as evidence of the fact. Section 58 anticipated
modern successors? Very little. modern legislation in permitting agreed facts in
all cases, not merely non-felony cases. Section 158
But the influence of one lawyer can be felt by later
anticipated modern legislation permitting challenges
lawyers even though the latter make no express
to the credit of hearsay declarants not called to give
acknowledgment of it, and even though the latter
evidence. Section 19 widened the admissibility of
are unaware of it. An idea can insensibly enter the
statements by agents to a point beyond that marked
consciousness of an age, even when those who come
in s 87(1)(b) of the Evidence Act 1995. Another example
to share it are ignorant of where it came from.
is s 132. The effect of s 132 was to abolish the common
Some techniques in the Indian Evidence Act are suitable law rule that once a claim was successfully made in
for Indian conditions, but not elsewhere (e.g., s 165). relation to self-incrimination, the witness was excused
One or two are not suitable elsewhere, and have been from answering and the evidence was unavailable.
changed (e.g., s 54) or read down (e.g., s 30) in India. That common law rule had been subjected to various
But quite a number of techniques in the Indian Evidence exceptions by English statutes commencing in 1849 in
Act have been adopted in the West. In the Indian relation to bankrupts under compulsory examination.
Evidence Act Stephen followed the earlier abolition in Under those exceptions, bankrupts could not claim
India of the ‘Exchequer rule’ by Act II of 1855, s 57.95 the privilege, but the answers could only be given in
That is, he favoured the rule not adopted in criminal prosecutions for offences against the bankruptcy law.
cases in England until 1907 that errors in admitting or A similar regime applied under various other statutes.
rejecting evidence should not justify an appeal being That technique was adopted in India in s 32 of Act II of
allowed if ‘independently of the evidence objected to 1855, but on a completely general basis. Section 32 was
and admitted, there was sufficient evidence to justify substantially followed in s 132 of the Indian Evidence
the decision, or that, if the rejected evidence had been Act. The English exceptions were taken up in Australian
received, it ought not to have varied the decision’ (s state legislation in a manner which eventually led to s
167). But the ‘Exchequer rule’ began to depart the scene 128 of the Evidence Act 1995, which achieves a result
in England shortly after Stephen returned from India: it equivalent to that achieves by Stephen in the Indian
was abolished in civil cases by r 48 of the Rules enacted Evidence Act, and by the Indian precursor of 1855 on
by the Supreme Court of Judicature Act 1873.96 It is unclear which he relied.
whether this step was in imitation of s 167 of the Indian
Another example of anticipation is found in s 24.

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It provided that, if an inducement was to preclude imputation well-founded, and s 150 empowered
reception of a confession, the inducement had to the court to report the offending questioner to the
be sufficient to give the suspect reasonable grounds appropriate professional disciplinary body. Although
to hope for an advantage or fear an evil. This was a it is unorthodox to put provisions like ss 149-150 into
marked break from the formality of the ‘inducement’ a statutory code, and although an amendment was
test at common law. Something like s 24 came to be unsuccessfully moved in the Indian Legislative Council
the common law in England in the 1970s, and elements on 12 March 1872 to remove s 150, their inclusion
of s 85 of the Evidence Act 1995 correspond with s 24, at is salutary. They back up Stephen’s imperative of
least in its general effect. preventing an abuse of the power to cross-examine.
This is simply an illustration of the profound, crippling and tragic amnesia which has
increasingly come to afflict English legal memory ever since the United Kingdom entered
Europe – that is, became merely part of a large Continental bureaucracy. Its courts no longer
administer the law of their own country and the laws of an Empire from Westminster, but
administer laws of foreign origin.
On 12 March 1872 Stephen informed the Legislative

Another example of Stephen’s anticipation of the
Council:
Evidence Act 1995, s 41, was his concern for the
protection of witnesses. In A General View of the Criminal The Bill as originally drawn provided, in substance, that
no person should be asked a question which reflected on
Law of England97 he criticised rules permitting excessive
his character, as to matters irrelevant to the case before the
attacks on the credit of witnesses. He introduced s 148
court, without written instructions; that if the court
of the Indian Evidence Act, which provides that the considered the question improper, it might require the
court has a discretion not to compel an answer to a production of the instructions; and that the giving of such
question as to credit, and in exercising that discretion instructions should be an act of defamation.… To ask such
questions without instruction was to be a contempt of
was to have regard to the following considerations:
Court in the person asking them, but was not to be
(1) Such questions are proper if they are of such a nature defamation.
that the truth of the imputation conveyed by them would
seriously affect the opinion of the court as to the credibility This proposal caused a great deal of criticism, and in
of the witness on the matter to which he testifies; particular produced memorials from the bars of the
(2) Such questions are improper if the imputation which three presidencies.98
they convey relates to matters so remote in time, or of
Sections 148–150 represent a retreat from that position,
such a character, that the truth of the imputation would
not affect, or would affect in a slight degree, the opinion of
but they do reveal Stephen as determined to enhance
the court as to the credibility of the witness on the matter the dignity and fairness of trials from the point of view of
to which he testifies; the witness. In 1929 s 148 was adopted by Sankey LJ as
reflecting English law in Hobbs v Tinling (CT) & Co Ltd.99
(3) Such questions are improper if there is a great
disproportion between the importance of the imputation That is a relatively rare event. The Indian Evidence
made against the witness’s character and the importance Act has not had much direct influence outside the
of his evidence.
jurisdictions in which it applies. The Indian Evidence Act
Section 149 then imposed what is usually thought has been discussed in the High Court of Australia a few
of as an ethical obligation not to ask s 148 questions times.100 Section 25 was the subject of detailed argument
unless there are reasonable grounds for thinking the by Sir Dingle Foot QC for the Crown in relation to the

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meaning of ‘confession’ in Commissioners of Customs not as freezing development, but as providing starting
and Excise v Harz and Power and this is reflected in the points for future growth in the law. Stephen thought
judgment of Thesiger J in the Court of Criminal Appeal that codes should be revised every ten years. He said:
and the speech of Lord Reid in the House of Lords.101 A The process of codification consists in summing up, from
disquieting sign of changing times, however, is offered time to time, the results of thoughts and experience. One
by R v Horncastle,102 a decision on the compatibility of of its principal merits is that in this way it continually
United Kingdom hearsay legislation with the European supplies, or ought to supply, new points of departure; and
this, instead of hampering or fettering the progress of the
Convention on Human Rights. In Annex 1 the House
law towards the condition of a science, would contribute
of Lords surveyed the treatment of the hearsay rule to it enormously. 106
in certain Commonwealth jurisdictions. But, despite
the status of India within the former Empire and since It is thus paradoxical that the Indian Evidence Act,
independence, and despite the stature of Stephen, though twice examined with great thoroughness by the
nothing was said about the Indian Evidence Act. This is Indian Law Commission, has never been systematically
simply an illustration of the profound, crippling and revised.
tragic amnesia which has increasingly come to afflict One aspect of the Indian Evidence Act turned out to be
English legal memory ever since the United Kingdom not only uninfluential, but much attacked. But a closely
entered Europe – that is, became merely part of a large related feature of the Act has had near universal acclaim.
Continental bureaucracy. Its courts no longer administer It concerns Stephen’s approach to relevance. The Act
the law of their own country and the laws of an Empire calls for three inquiries into relevance. First, s 5 makes
from Westminster, but administer laws of foreign origin, evidence admissible if it goes to the existence of a fact in
sitting, as George Orwell put it in Nineteen Eighty-Four, in issue, which is defined in s 3 as meaning and including:
‘London, chief city of Airstrip One, itself the third most
any fact from which, either by itself or in connection with
populous of the provinces of Oceania’.103
other facts, the existence, non-existence, nature or extent
Stephen has had more influence on writers. The early of any right, liability or disability, asserted or denied in any
suit or proceeding, necessarily follows.
editions of Cross on Evidence contained criticisms of
the common law hearsay exceptions which depended The Act does not describe this evidence as ‘relevant’,
on the death of the declarant. Each of these criticisms though it is a primary category of relevant evidence at
had been met in s 32 of the Indian Evidence Act, and it common law, and Stephen’s language is often relied
is submitted that this circumstance prompted Cross’s on. Secondly, s 5 makes evidence admissible if it is
analysis. The Act has had some influence in the United ‘declared to be relevant’ under ss 6–9, 11 or 13–16.
States. The Act, and ‘An Introduction on the Principles These are provisions which seek to express in statutory
of Judicial Evidence’ which Stephen published with it, form the reasoning processes to be employed in
are discussed in Wigmore occasionally, sometimes with relation to circumstantial evidence (including that
high praise.104 major category known at common law as ‘similar
The most striking feature of the Indian Evidence Act fact evidence’). Again, this is a type of relevance
is its attempt to be clear and rational. While Stephen familiar at common law. Stephen claimed that these
thought that the English law of evidence was ‘full of the ‘circumstantial evidence’ sections were based on J S
most vigorous sense, and is the result of great sagacity Mill’s System of Logic (1843).107 Practical comprehension
applied to vast and varied experience’, he disliked its of how they work, however, is assisted by reading the
‘unsystematic character and absence of arrangement’.105 ‘Introduction’ to the Act published by Stephen in 1872.
Stephen saw the Act, and his other codificatory enterprises, In it he explained how all the evidence in five murder
cases would have been treated under the Act. Thirdly,

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the Act renders evidence admissible if it is ‘declared to be Whitworth’s second criticism, and stated the definition
relevant’ by ss 10, 12 or 17–55. These provisions do not of ‘relevance’ in Art 9 accordingly.108 It provided:
use the word ‘relevant’ in a common law sense. Rather Facts, whether in issue or not, are relevant to each other
their function is, for the most part, to codify various when one is, or probably may be, or probably may have
hearsay exceptions in a streamlined form – though the been
word ‘hearsay’ is not used in the Act. the cause of the other;
the effect of the other;
In 1875, three years after the Act was enacted, a an effect of the same cause;
member of the Bombay Civil Service published a a cause of the same effect:
pamphlet – The Theory of Relevancy for the Purpose of or when the one shows that the other must or cannot
Judicial Evidence. Its capable author, G C Whitworth, have occurred, or probably does or did exist, or not;
deserves to be more widely known. He criticised the Act or that any fact does or did exist, or not, which in the
in two respects. The first criticism was that the meaning common course of events would either have caused or
have been caused by the other ….’
of ‘relevant’ differed between the ‘circumstantial
evidence’ sections and the ‘hearsay exceptions’ The following year Stephen modified this structure by
sections. In the circumstantial evidence sections the abandoning that definition and inserting a new definition
word ‘relevant’ referred to the natural probative of relevance in Art 1.109 That definition was:
tendency of the evidence. In the hearsay exceptions The word ‘relevant’ means that any two facts to which it is
sections the word ‘relevant’ referred to the question applied are so related to each other that according to the
of whether inherently probative evidence should or common course of events one either taken by itself or in
should not be excluded for prudential reasons – reasons connection with other facts proves or renders probable
the past, present, or future existence or non-existence of
other than its lack of probative tendency. Employing
the other.
the term ‘relevant’ in the latter context strained
language. Whitworth’s second criticism was that the There is here a combination of the elements of the
theory of relevancy employed in the circumstantial definition in s 3 of the Indian Evidence Act and Art 9 of
evidence sections was too narrow. It rested on the view, the Digest as it stood in 1876. That definition of relevance
stated in the ‘Introduction’, that relevance depended has been cited with approval innumerable times. Lord
on a relationship of cause and effect. Yet one fact can Oliver of Aylmerton said that ‘relevant’ could not ‘be
be relevant to another, even though neither caused the better defined’,110 and Brennan J agreed.111 Other
other: they can be the effects of a single cause, for members of the High Court have approved it several
example. times – in 1912,112 1998,113 2002114 and in 2008.115
Whitworth’ s two criticisms were repeated by others The Privy Council approved it in 2003116 and 2005.117
over the next 20 years. The criticisms are generally So have members of the Supreme Court of Canada.118
thought to be sound. But the aspects criticised do not Despite the criticism in ALRC 26 of some aspects
seem to have caused practical trouble in India. The of Stephen’s approach to relevance, the definition
scheme has not been changed. This seems to be a result appearing in s 55(1) of the legislation modelled on
of Stephen’s skilful transposition of hearsay exceptions the Evidence Act 1995 (Cth) (which can be found in cl
into categories of evidence ‘declared to be relevant’. 43(1) of the Bill in ALRC 26 and cl 50(1) of the Bill in
ALRC 38) was said by Gleeson CJ not to be materially
In 1876, in his Digest, Stephen generously accepted different from that of Stephen in the Digest.119

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Stephen’s Digest The Bill – number 274 – was then withdrawn, and
was never reintroduced after the fall of the Gladstone
This discussion of Stephen’s treatment of ‘relevance’ has
government. Despite Coleridge’s statement that he
moved from the Act to the Digest. What has been the
proposed to print it, and Stephen’s statement that he
influence of the Digest in other respects?
believed it was ordered to be printed,123 it does not in fact
Stephen’s Digest owed its origins to the following
appear to have been printed.124 This author has never seen
circumstances.
the 1873 bill, nor any discussion of it by anyone who
While in India he had decided that the works of the claims to have done so. To examine a copy of it, if one
then current writers on evidence were unsatisfactory still exists and can be located, would be of profound
for use in India by practitioners or courts. That decision interest. On the evidence scholar it would have the
impelled his solutions in the Indian Evidence Act, same impact as the discovery of one of the lost books
particularly in relation to its structure and style. When of Tacitus would have on the Roman historian. That is
he began lecturing on evidence at the Inns of Court, he because it contained reforming elements, which, if we
concluded that those works were unsatisfactory for law knew them, would reveal what Stephen thought English
students as well. Those works even now, with respect, law ought to have been, as distinct from what he
are far from contemptible, and repay examination on thought Indian law should be (as reflected in the Indian
particular points, but Stephen was right. The fourth Evidence Act) and what he thought English law was (as
edition of Starkie (A Practical Treatise on the Law of reflected in the Digest).
Evidence) was published in 1853, with 880 pages of
Since the bill never proceeded and appears to have
text. The fifth edition of Taylor on Evidence published in
been lost, it had no direct influence on the law of
1869 was a substantial work in two volumes, containing
evidence. But Stephen decided that his Evidence Bill
1,598 pages of text. The sixth edition, 1872, contained
could be used as the basis for a short work – A Digest of
1,596 pages of text. The fifth edition of Best on Evidence
the Law of Evidence. He omitted the amendments to the
published in 1870 was 910 pages long. Stephen’s own
law contained in the Evidence Bill, since, he claimed,
seventh edition of Roscoe’ s Digest of the Law of Evidence
the Digest was ‘intended to represent the existing law
in Criminal Cases, published in 1868, was 984 pages
exactly as it stands’. That statement is to some degree
long. Of these works, Stephen said:
questionable, but the Digest is certainly much closer
The knowledge obtained from such books and from to received English law than the Indian Evidence Act.
continual practice in court may ultimately lead a barrister
But the Privy Council was wrong to say, as it once did,
to acquire comprehensive principles, or at least an
that the Digest ‘reproduced’ the Indian Evidence Act ‘in
instinctive appreciation of their application in particular
cases. But to refer a student to such sources of information substance’ for England.125 They appear to have been misled
would be a mockery. He wants a general plan of a district, by Stephen’s statement in the first edition of his Digest
and you turn him loose in the forest to learn its paths by that it was ‘intended to represent the existing law exactly
himself.120 as it stands’ – a reference to the Digest, not the Act. They
When Stephen returned from India in 1872, the may have been misled by Stephen’s statements that the
attorney-general, Sir John Coleridge, asked him to use Digest was based on his Bill, and that the Bill ‘was drawn
the Indian Evidence Act as the basis for a bill for an on the model of the’ Indian Evidence Act.126 Many parts
evidence code for England. He had completed it by 7 of the Digest are the same as the Indian Evidence Act, but
February 1873.121 Coleridge introduced the Bill to the House many other parts diverge from it. This was partly because
of Commons on 5 August 1873. He made a speech some of the origins of the Indian Evidence Act lay in
acknowledging Stephen’s authorship, after saying: earlier Indian legislation, and partly because Stephen
often chose to modify English law. As just noted, the Bill
He had never proposed to do more with the Bill this
Session than to introduce it, print it for the consideration probably diverged from Stephen’s Digest. He saw the
of Members, and, if he should have the opportunity, Digest as being:
endeavour to pass it into law in a future Session.122

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such a statement of the law as would enable students to The Digest was a short compact work, 184 pages in
obtain a precise and systematic acquaintance with it in a the first edition. It was organised into articles not
moderate space of time, and without a degree of labour
unlike the sections of a statute or code, interspersed,
disproportionate to its importance in relation to other
branches of the law.127 like the Indian Evidence Act, with illustrations, and
containing only limited citation of authority. Stephen
He also said: understandably said of the work: ‘The labour bestowed
I have attempted … to make a digest of the law, which, if upon it has … been in an inverse ratio to its size.’ 132 In
it were thought desirable, might be used in the preparation terms of longevity at least, the Digest is one of the most
of a code, and which … will, I hope, be useful, not only to successful students’ works ever published. By 1936
professional students, but to everyone who takes an
there had been twelve editions, and the twelfth edition
intelligent interest in a part of the law of his country bearing
directly on every kind of investigation into questions of
was reprinted with corrections in 1946 and with further
fact, as well as on every branch of litigation. 128 corrections in 1948.133 The 1948 version had grown,
but only to 273 pages. Its structure and style had
Although the Indian Evidence Act is different in detail changed very little. In 1934 there was an adaptation
from the Digest, the goal of each was similar, for for use in courts martial.134 There were reprints in the
Stephen’s aim with the Act was as follows: United States.135 There were numerous editions in the
By ‘boiling down’ the English law, and straining off all the United States.136 Some were published for particular
mere technical verbiage, it would be possible to extract a jurisdictions, such as an edition in 756 pages published
few common-sense principles and to give their applications
from the fifth English edition (1899) in 1904 for New
to practise in logical subordination and coherence. That
Jersey, Maryland and Pennsylvania by George E Beers,
which seems to be a labyrinth in which it is hopeless to
find the way until experience has generated familiarity assisted by Arthur L Corbin. There were local editions
with a thousand minute indications at the various turning in other parts of the common law world, such as New
points, may be transformed, when the clue is once given, South Wales.137 It had some influence on Wigmore.138
into a plan of geometrical neatness and simplicity. 129 It had a large influence on other writers in the United
Maine in 1873 saw the object of the Indian Evidence Act States.139 There are nineteenth and early twentieth
as being: century academic textbooks that have survived longer
– for example, Anson on Contract (dating from 1876)
to alleviate the labour of mastering the law of Evidence,
and Salmond on Torts (dating from 1907). There are
whatever form it might take, and, so far as might be
possible, to place the civil servant overwhelmed by also practitioners’ works of greater age, for example,
multifarious duties, the native judge and the native Chitty on Contracts (dating from 1826), Clerk and
practitioner on a level with the English lawyers of the Lindsell on Torts (dating from 1889) and Dicey on the
Presidency towns, who have hitherto virtually claimed a Conflict of Laws (dating from 1896). But there are not
monopoly of knowledge on the subject. 130
many in either category. Few of those works changed
Stephen’s goal was reflected in the speech of Sir as little from the form adopted in their first author’s
George Campbell, lieutenant-governor of Bengal, to lifetime as Stephen’s Digest. And, taking into account
the Viceroy’s Legislative Council on 12 March 1872. considerations of influence, a glance, for example, at
He justified the Indian Evidence Act as enabling a non- the early English editions of Sir Rupert Cross’s Evidence
specialist judge who might not be on an equal footing will reveal how it affected that master of 20th century
with a specialist advocate to say: ‘I am as good a man evidence law .
as you: if you raise a question of evidence, there is the law A full account of the influence of the Digest would depend
by which your question can be decided’.131 The needs of on the performance of tasks which it may now be
legally untrained officials and Indian barristers who had impossible to perform. One would be to discover how
not been educated in England had much in common many copies of each edition and impression were sold,
with those of law students. where and to whom. Another would be to work out
which institutions prescribed it for use by law students.

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It may have been prescribed at the University of Sydney of party calling a witness to contradict that witness;181
Law School, for example, as late as the early 1950s. evidence of complaint;182 non-existence of privilege for
Another would be a complete survey of all evidence matrimonial communications;183 reception of whole
cases since 1876 to see how often it was cited by the of admissible statement against interest;184 evidence
bar and by the bench. of witnesses in previous proceedings;185 admissibility
of parole evidence;186 definition of ‘document’;187
There is certainly a steady stream of citation in the
accreditation of witnesses after they have been
High Court. In 1907 O’Connor J did so in relation
discredited in cross-examination;188 presumption of
to the burden of proof.140 In 1908 Isaacs J did so in
death;189 cross-examination of witnesses on character;190
relation to presumptions.141 In 1913 Barton ACJ did so
finality of answers in cross-examination on credit;191
in relation to res gestae.142 In 1915 Isaacs J did so in
evidence of reputation as going to character;192
relation to presumptions.143 In 1919 Barton, Isaacs and
admissibility of evidence that witness would not believe
Rich JJ did so in relation to admissions of the contents
another witness on oath;193 power of court to prevent
of a document.144 In 1928 Isaacs J did so in relation to
cross-examination as to credit where ‘the truth of the
satisfaction of the standard of proof,145 and in relation
matter suggested would not … affect the credibility
to presumptions from silence.146 In 1929 Starke J did
of the witnesses to the matter to which he is required
so in relation to the meaning of evidence.147 In 1931
to testify’;194 admissibility of evidence on construction
Dixon J and Evatt J did so in relation to the competence
of documents to show ‘the genesis and aim of the
of children to take oaths.148 In 1936 Evatt J did so in
transaction’;195 and other questions of contractual
relation to presumptions of fact,149 and in relation to
construction.196 Further, the Digest has often been cited
similar fact evidence.150 In 1937 Evatt J did so in relation
in argument in leading evidence cases, from a time
to the presumption of death.151 In 1989 Toohey J did so
very soon after it was first published.197
in relation to res gestae.152 In 2001 McHugh J did so in
relation to admissibility of evidence by the accused.153 In The Digest has not lacked praise. In 1932 Judge Parry
2007 four justices did so in relation to the competence called it a ‘great textbook’. He said: ‘The big books of
of the accused on summary charges.154 cases are valuable mines in which to quarry when you
are in search of a jewel with which to illuminate your
Counsel before the High Court have often quoted
argument, but Stephen’s book is a chaplet of pearls that
Stephen’s Digest on such issues as circumstantial
should be worn unostentatiously under your gown.’ 198
evidence;155 burden of proof;156 res gestae evidence;157
As late as 1968, in seeking to determine the meaning
the definition of evidence;158 similar fact evidence;159
of ‘character’ in 1898, the House of Lords relied on the
the admissions of co-conspirators;160 and the standard
Digest and described it as ‘a well-known textbook’.199 In
of proof of crimes in civil proceedings.161
2005 Lord MacPhail, sitting in the Outer House of the
Turning to other courts in Australia, and to English and Court of Justiciary, described the Digest as ‘influential’.200
Canadian courts, one can find extensive citation of the
These are laudatory remarks, but the stature of Stephen
Digest from soon after it was first published in 1876. The
is greater than they might suggest. Isaacs J spoke
topics include: the shifting of the burden of proof;162
of Stephen’s restatement of a proposition of Lord
formal admissions;163 confessions;164 facts discovered in
Mansfield CJ’s as ‘clothed with the most eminent and
consequence of confessions;165 admissions;166 reception
most authoritative recognition’.201 In 1909 Phillimore J,
of depositions of deceased persons;167 declarations against
after quoting a passage in the Digest which F E Smith
pecuniary interests;168 competence of witnesses;169
KC had cited, and referring to a passage in Taylor, said:
testimonial incompetence;170 administering oaths
‘The authority of Taylor is not so high as that which I have
to children;171 proof of motive;172 judicial notice;173
just cited, and before accepting [Taylor’s] statement as
leading questions;174 police informers;175 similar fact
conclusive one would prefer to look at the cases cited
evidence;176 expert evidence;177 effect of judgments;178
in support of his proposition.’ 202 That is, a statement by
circumstantial evidence;179 hostile witnesses;180 power

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Stephen was seen as authoritative independently of its acquainted. Careful reports of great cases are perhaps the
sources; not so a statement by Taylor. In similar fashion, most instructive kind of legal literature; but I know
nothing which so completely enervates the mind, and
in 1954 Harman J was prepared to accept a statement
prevents it from regarding law as a whole, or as depending
in the Digest that there was no authority on a point as upon any principles at all, as the habit of continually
conclusive of the proposition that there was none.203 These dwelling upon and referring to minute decisions upon
judges viewed Stephen as not simply an able writer, but every petty question which occurs. 207
as having a more fundamental significance.
He saw it as important to concentrate on basic principle
What is that significance? Evatt J said that Stephen as expressed in a relatively low number of leading
‘endeavoured to explain the rules of evidence upon a or illustrative cases, not on a thin stream of over-
rational basis’.204 That points to one aspect of the power complex doctrine which meanders through a mass of
Stephen displayed in the Digest. Another was stated footnotes and constantly changes direction. The law
by Phipson in the introduction to the first edition of might change as conditions changed – that is why he
his book: he said he had tried to write a work which favoured revising codes every 10 years – but excessive
would take a middle place between ‘the admirable but citation of authority was damaging both to codes and
extremely condensed Digest of … Stephen, and that great to the common law. While Stephen loved debate,
repository of evidentiary law, Taylor on Evidence.’205 There and while he was capable of changing his mind, as
is here an element of criticism, which Cross repeated in he did throughout his life on many issues great and
1978. He said of Stephen’s digests on evidence and small, including evidentiary issues, his was a confident,
criminal law that they: naturally decisive, even authoritarian mind. English law
were remarkable achievements and the succinct statements as treated in evidence books in the 1870s, like Indian
of the effect of the mass of case-law which they contain law before 1872, seemed piecemeal, jumbled, wordy
give Stephen claims to be regarded as the first nineteenth- and disorganised. In it really fundamental points were
century writer on the two subjects who could plainly see
scattered amongst the mundane. One aspect of Stephen’s
the wood for the trees, yet they tend to fall between two
stools. From the point of view of the practitioner the skill was to separate out the former from the latter. The
citation of authority is insufficient, and from the point of impression given by both the Indian Evidence Act and
view of the student the statements of principle are too the Digest is their authorship by a mind having total
concise.206 confidence in its own abilities, and possessing the
judgment to discriminate, to discard, to modify, and
There is some truth in the latter criticism. Stephen’s
to clarify.
compressed expression makes it not easy to understand
his world when one first enters it. What of the former Stephen would have disliked the modern practices
criticism? pursuant to which judges entertain debates, sometimes
long debates, about admissibility; pursuant to which
Stephen’s approach to the citation of authority stems
they deliver long judgments, sometimes reserved,
partly from his hostility not only to the swollen bulk of
rather than short decisive rulings; and pursuant to
the textbooks available in the 1870s, but also to what
which masses of authority recorded on computer
he saw as the over-reporting which had led them into
are available for citation. In part these practices have
that condition. On 16 April 1872, just before Stephen
arisen because jury trial has declined, because even
left India, he told the Legislative Council:
where it has not declined it has changed, and because
I do not believe that one case in twenty of those which are
avenues for discretionary exclusion of evidence have
reported [in the Indian reports] is at all worth reporting;
and when we think what the High Courts are, it seems to
greatly increased. But he would have deplored the
me little less than monstrous to make every division consequential effect in terms of delay. Stephen would
bench into a little legislature, which is to be continually have appreciated the following point made by Mr
occupied in making binding precedents, with all of which Justice Wells:
every Court and Magistrate in the country is bound to be
The principles and rules [of evidence] were largely

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fashioned, not in the refined atmosphere of appeal courts authority did not much matter and, anyway, would not
or in courts of equity, but at nisi prius, in the heat and conflict have been brought to court. That was only an informal and
of forensic strife. They comprise principles together with
crude exemplification of the much more sophisticated
numerous associated corollaries in the form of working
rules. They provide an enormous reservoir of guidance for techniques employed in the Digest.
trial judges, who have to resolve practical problems ‘on
The Indian Evidence Act and the Digest reacted strongly
the run’. 208
against the contemporary evidentiary works and
In a world where evidentiary issues arose unexpectedly towards a search for first principles. The reactions were
and suddenly, Stephen saw that what was needed was a perhaps too strong, but they were beneficial. They
volume which, with effort, could be readily assimilated illustrate an inevitable swing back and forth that is
into the practitioner’s mental equipment, and appealed likely to be eternal, reflecting a tension between the
to quickly to resolve disputes. The Digest was an search for fundamental principle and the search for
epitome of the guidance to be found in the decisions universal coverage of detail in a case-based system of
of earlier times for the resolution of contemporary justice. Because Stephen’s techniques form part of that
forensic controversies. inevitable action and reaction, they are likely to retain
some influence.
The utility of the model employed in the Indian Evidence
Act and the Digest is confirmed by three other instances Will Stephen’s opinions on the substantive law retain
in living memory in our country. First, in South Australia, any influence? No doubt as the law becomes more and
in 1963, Andrew Wells published An Introduction to the more dominated by statutes, often increasingly detailed
Law of Evidence. It was a short work intended for police statutes, there is less room for the particular doctrines
officers, but it ran into several editions. It had the same expounded by him or any other individual. But many
characteristics as Stephen’s Digest – it was terse, spare, of them operate at a deeper level. The opinions of
elegant and trenchant. a thinker like Stephen on matters of fundamental
principle are likely to survive, if only because it is very
The second instance may be found in Harold Glass –
hard to modify them by legislation.
the greatest evidence lawyer ever produced by the New
South Wales Bar. He favoured an enterprise like that
Endnotes
which evolved into the Evidence Act 1995 (Cth) because
* Lecture delivered to the NSW Bar Association on 21 June 2010. I am
of its capacity to simplify the materials available to indebted to Kim Pham and Jane Taylor for their assistance in preparing it.
solve evidentiary disputes and hence to shorten the 1. Mabo v Queensland (No 2) (1992) 175 CLR 1, 107: on 14 March
1841 he wrote of the ‘proprietary rights in the Soil’ of the Australian
time needed for that task. It is doubtful whether he Aboriginal people.
would have been happy with the swollen case law 2. Quoted by R J White, ‘Editor’s Introduction’ in R J White (ed), Liberty,
Equality, Fraternity (1967, reprint of 2nd ed 1874) 4. Eton affected
which the last 15 years have produced in relation to
a contemporary, Robert Cecil, future Prime Minister, similarly. ‘His
that legislation, just as it is doubtful whether Stephen pessimism about human nature, his assumptions about the cowardice
would have been happy with the latest edition of Sarkar of the silent majority, the cruelty of the mob and the vulnerability
of the rights of the individual were instilled in him by his Eton
on Evidence, which expounds the Indian Evidence Act in experiences’ : Andrew Roberts, Salisbury: Victorian Titan (1999) 11.
2,586 pages. 3. James Fitzjames Stephen, Defence of the Rev Rowland Williams, DD
(1862).
Thirdly, until a couple of generations ago – ending 4. Williams v Bishop of Salisbury (1863) 2 Moore PC (NS) 375; 15 ER
943.
during the professional lifetime at the bar of Mr Justice
5. J B Atlay, The Victorian Chancellors (1908) vol 2, 264.
Meares’s generation, from the 1930s to the 1950s – 6. See R W Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of
there was a tradition of the small book. Barristers would Law (2008).
7. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895),
keep small books in which they would write down 231–232. Chamberlain’s praise is significant – for though both
key propositions and the main authority for them. were Liberals, both broke with Gladstone over Irish Home Rule,
both declined to join the Conservative Party, both were fervent
They reflected a lack of concern with anything other
Imperialists and both employed aggression and asperity as standard
than principle and basic authority – for non-essential tools of communication, the one was an autodidact, a left wing

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radical, a republican, a self-made businessman, the most extreme of 33. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895), 232.
dissenters and a democratic demagogue, the other the product of 34. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895), 212.
famous institutions, a flower of upper class Evangelical culture, and 35. John W Bicknell (ed), Selected Letters of Leslie Stephen, vol 1, 1864-
a political conservative on the extreme right of the Liberal Party. Yet 1882 (1996) 60.
Chamberlain managed to peer through the fog of these distracting 36. According to Sir Harold Nicolson, Stephen said: ‘There is in the
differences between them to detect and admire Stephen’s strong Asian Continent an empire more populous, more amazing and more
points as counsel. beneficent than that of Rome. The rulers of that great dominion are
8. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895), 211. drawn from the men of our own people.’ These words ‘produced
9. See M C Sarkar, S C Sarkar and others (eds), Sarkar’s Law of Evidence, upon George Curzon an apocalyptic effect. “Asia”, “Continent”,
16th ed (2007). “Empire”, “amazing”, “beneficent”, “Rome”, “rulers”, “dominion”,
10. See R G Padia (ed), Pollock and Mulla: Indian Contract & Specific Relief “men”, “our own people”, – such were the watchwords which
Acts, 13th ed (2006). thereafter guided his life.’ ‘Ever since that day’ he confessed in 1896,
11. See, for example, Sir Courtenay Ilbert, ‘Sir James Stephen as a ‘the fascination and ... sacredness of India have grown upon me’
Legislator’ (1894) 10 LQR 222, 224; Sir Harold Nicolson, Curzon: The (emphasis in original): Curzon, The Last Phase 1919-1925 (1934)
Last Phase 1919-1925 (1934), 12; Sir George Rankin, Background to 12. Curzon also retained ‘a vivid recollection [of] the vast head, the
Indian Law (1946), Preface. heavy pendulous jaw, the long and curling locks ... as he stood at
12. See below, text, notes 120-123. the desk’: G J D Coleridge, Eton in the Seventies (1912) 225, quoted
13. James A Colaiaco, James Fitzjames Stephen and the Crisis of Victorian in K J M Smith, ‘Sir James Fitzjames Stephen’ 52 Oxford Dictionary
Thought (1983), 202-203. of National Biography (2004) 439, 441. See also K J M Smith, James
14. John Hostettler, The Politics of Criminal Law Reform in the 19th Century Fitzjames Stephen: Portrait of a Victorian Rationalist (1988), 156-157.
(1992), 182-189; John Hostettler, Politics and Law in the Life of Sir 37. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895), 378.
James Fitzjames Stephen (1995), 175-197. 38. Sir Keith Thomas, ‘What Are Universities For?’, Times Literary
15. This is wrongly stated as 1874 in Leslie Stephen, The Life of Sir Supplement, 7 May 2010, 15.
James Fitzjames Stephen (1895) 483, R J White (ed) ‘Books by 39. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895), 213-
James Fitzjames Stephen’, Liberty, Equality, Fraternity (reprint of 214 n 2.
2nd ed,1874) 19 and John W Bicknell (ed), Selected Letters of Leslie 40. M M Bevington, The Saturday Review 1855-1868: Representative
Stephen, vol 1, 1864-1882, 118 n 3. Educat ed Opinion in Victorian England (1966), 373-381.
16. Frederic William Maitland, The Life and Letters of Leslie Stephen (1906), 41. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895), 226.
429. 42. John W Bicknell (ed), Selected Letters of Leslie Stephen, vol 2, 1882-
17. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895), 428- 1894 (1996), 434.
429. 43. John W Bicknell (ed), Selected Letters of Leslie Stephen, vol 2, 1882-
18. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895), 435- 1894 (1996) 428.
436. 44. Frederic William Maitland, The Life and Letters of Leslie Stephen (1906),
19. John W Bicknell (ed), Selected Letters of Leslie Stephen, vol 1, 1864- 429.
1882 (1996), 218. 45. Essays by a Barrister (1862) (comprising 33 articles) and the three
20. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895), 348. volumes of Horae Sabbaticae (1892) (comprising 55 articles).
21. Quoted in Leslie Stephen, The Life of Sir James Fitzjames Stephen 46. Stephen had been driven to journalism in part by poverty, and in
(1895), 349. the case of Salisbury, that was the sole cause. He committed the
22. K J M Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist scandalous act of marrying so far out of his class as to trigger the
(1988), 246. refusal of his father, the second marquess, to support him. By the
23. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895), 94. lights of that nobleman, this point of view is reasonable. The lady
24. R J White, ‘Editor’s Introduction’ in R J White (ed), Liberty, Equality, was Georgina Alderson, daughter of Baron Alderson, who remains
Fraternity (1967, reprint of 2nd ed 1874), 3. to this day a highly respected judge, but ‘irredeemably middleclass’
25. Leon Radzinowicz, Sir James Fitzjames Stephen 1829-1894 and his and wanting in money: Andrew Roberts, Salisbury: Victorian Titan
Contribution to the Development of Criminal Law (1957), 5. (1999) 30.
26. T H S Escott, Society in London (2nd ed, 1885), 142-143. 47. Essays by the late Marquess of Salisbury: Biographical (1905) and
27. ‘The First Earl of Lytton’ (1907) 12 Independent Review 332, 333. Essays by the late Marquess of Salisbury: Foreign Politics (1905).
28. K J M Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist 48. R J White (ed), Liberty, Equality, Fraternity (1967, reprint of 2nd ed
(1988), 2, 254 n 17. 1874).
29. He complained that Dickens portrayed so many deaths in order 49. See Law , Liberty and Morality (1963), 16.
to show ‘his skill in arranging effective details so as to give them 50. Reprinted as ‘Morals and the Criminal Law ‘ in Patrick Devlin, The
this horrible pungency’, and that ‘[a] list of the killed, wounded Enforcement of Morals (1965), 1-25.
and missing amongst Mr Dickens’s novels would read like an 51. Patrick Devlin, The Enforcement of Morals (1965) vii.
Extraordinary Gazette. An interesting child runs as much risk there 52. ‘Liberalism and the Victorian Intelligentsia’ (1957) 13 Cambridge
as any of the troops who stormed the Redan’: ‘The Relation of Historical Journal 58, 65 n 38.
Novels to Life’ (1855) Cambridge Essays 148, 174, quoted by K J M 53. Ernest Barker, Political Thought in England: 1848 to 1914 (2nd ed 1947),
Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist (1988), 150.
14. 54. H L A Hart, Law , Liberty and Morality (1963) 16, where he also called
30. Leon Radzinowicz, Sir James Fitzjames Stephen 1829-1894 and his Stephen a master of the common law and ‘the great Victorian judge
Contribution to the Development of Criminal Law (1957), 10-11. and historian of the Criminal Law’.
31. Leon Radzinowicz, Sir James Fitzjames Stephen 1829-1894 and his 55. Frederic William Maitland, The Life and Letters of Leslie Stephen (1906)
Contribution to the Development of Criminal Law (1957), 12-13. 140.
32. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895), 98. 56. K J M Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist

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(1988) 250-251, 317; James A Colaiaco, James Fitzjames St ephen of agency cannot be found in admission by agent); R v Gibson
and the Crisis of Victorian Thought (1983), 206-207. (1887) 18 QBD 537 (res gestae).
57. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895), 441. 83. For example, Brown v Eastern and Midlands Railway Co (1889) 22
58. ‘The Rationalist Tradition of Evidence Scholarship’ in Enid Campbell QBD 391, 393 (distinction between similar fact evidence and proof
and Louis Waller (eds), Well and Truly Tried (1982), 234. of public nuisance by establishing several instances of interference
59. Leon Radzinowicz, Sir James Fitzjames St ephen 1829-1894 and his with a public right).
Contribution to the Development of Criminal Law (1957), 37. 84. (1884) 14 QBD 153.
60. ‘The Law and the Constitution’ in Woinarski (ed), Jesting Pilate and 85. (1884) 14 QBD 153, 163 per Grove J.
Other Papers and Addresses (1997, reprint of 1965 edn), 38-39. 86. It is worth bearing in mind that similar, though more modest, claims
61. (1889) 23 QBD 168. could be made for some of Stephen’s other Indian legislation such
62. (1885) 16 QBD 190. as the Indian Contract Act and the Criminal Procedure Code of 1872
63. (1887) 16 Cox 306. in which Stephen’s originality played less of a role.
64. (1887) 16 Cox 311. 87. So thought Stephen’s predecessor in India, Maine, who described
65. (1866) LR 1 Ex 265. the predicament of judges sitting without juries in India, particularly
66. [1932] AC 562. if they were administrators as well, in ‘Mr Fitzjames Stephen’ s
67. [1935] AC 462. Introduction to the Indian Evidence Act’ (1873) 19 Fortnightly
68. Sir Rupert Cross, ‘The Making of English Criminal Law (6) Sir James Review 51, 53. See also his speech of 4 December 1868 to the
Fitzjames Stephen’ [1978] Criminal Law Review 652. Legislative Council: Imperial Legislative Council (India), Abstract of the
69. R v Z [2005] 2 AC 467, 491 [22]. Proceedings of the Council of the Governor-General of India, Assembled
70. The Queensland legislation was based on Sir Samuel Griffith’s Draft for the Purpose of Making Laws and Regulations, 1868, vol VII (1869)
of a Code of Criminal Law (1897), which set out his draft provisions in 507.
the right hand columns and their sources in the left hand columns: 88. The British Conquest and Dominion of India (1989), 881.
the ‘Bill of 1880’ is often referred to – that is, the Draft Code of 89. British Colonial Law (1962), 253 n 16.
1879, presented to parliament in that year, but referred to a select 90. ALRC 26 (1985), vol 1, 158 [317]. The reference appears to be to
committee just before the Disraeli government fell in 1880. the Indian Evidence Act ss 6-9, 11 and 13-16.
71. See Barry Wright, ‘ Self-Governing Codifications of English Criminal 91. ALRC 26 (1985), vol 1, 158 [318]. See below, text, notes 107-108.
Law and Empire: The Queensland and Canadian Examples’ (2007) 26 92. Cmnd 4991 27-28 [47].
University of Queensland Law Journal 39. 93. 12th ed, 1948, 201.
72. A General View of the Criminal Law of England (1863) 99; A History of the 94. Cmnd 4991 85 [134].
Criminal Law of England (1883) vol 1, 80-85. 95. Wigmore erroneously states that this reform was originally
73. Sir Rupert Cross, ‘The Making of English Criminal Law (6) Sir James introduced by Stephen: J H Wigmore, Evidence in Trials at Common
Fitzjames Stephen’ [1978] Criminal Law Review 652, 661. Law, Tillers rev, 1983, vol 1, 888 [21], n 8.
74. ‘The Characteristics of English Criminal Law’, Cambridge Essays 96. Thus the Digest, Art 140, records r 48 as stating the civil rule, and
(1857) 16; A General View of the Criminal Law of England (1863) 119; K the ‘Exchequer rule’ as stating the criminal rule: 130.
J M Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist 97. (1863) 297-298. See also A Digest of the Law of Evidence (1876), 174-
(1988), 62. 175.
75. (1884) 14 QBD 273. For a discussion of the changing position in the 98. Imperial Legislative Council (India), Abstract of the Proceedings of the
1878 and 1879 Bills, see Sir Rupert Cross, ‘The Making of English Council of the Governor-General of India, Assembled for the Purpose of
Criminal Law (6) Sir James Fitzjames Stephen’ [1978] Criminal Law Making Laws and Regulations, 1872, vol XI (1873) 131.
Review 652, 659. 99. [1929] 2 KB 1, 50-51.
76. A History of the Criminal Law of England (1883) vol 2, 106-107. 100. See, for example, Barry v Heider (1914) 19 CLR 197, 217–218
77. Richard A Posner (ed), The Essential Holmes (1996) 222 (speech (discussing s 115 on estoppel, as considered in Sarat Chunder Dey
to Suffolk Bar Association Dinner, 5 February 1885). Similarly, Sir v Gopal Chunder Laha (1892) LR 19 IA 203); Williamson v Ah On
Courtenay Ilbert, who is unlikely to have known of Holmes’ s speech (1926) 39 CLR 95, 113, 115 (ss 101 and 106 on the burden and
four years earlier, called him ‘the ablest and most consistent advocate standard of proof); Ahern v The Queen (1988) 165 CLR 87, 98-99 (s
of English codification’: ‘Indian Codification’ (1889) 5 Law Quarterly 10 – admissibility of things said, written or done by conspirators in
Review 347, 366. reference to their common intention); Wilson v Anderson (2002) 213
78. It is set out in Pollock’s The Law of Torts, 13th ed (1929), 618- 686. It CLR 401, 445 [94] n 124 (general); Weiss v The Queen (2005) 224
has the style of Stephen’s Indian legislation, flowing from Macaulay’s CLR 300, 310 [24] (s 167 on appeals).
Penal Code, with ‘Illustrations’ and the occasional ‘Explanation’. 101. [1967] 1 AC 760, 780, 817.
79. Editor’s note to Sir Courtenay Ilbert, ‘The Life of Sir James Stephen’ 102. [2010] 2 WLR 47.
(1895) 11 Law Quarterly Review 383, 386. 103. Peter Davison (ed), The Complete Works of George Orwell, vol 9,
80. G H Knoll, ‘Sir James Fitzjames Stephen, Bart’ (1892) 26 American Nineteen Eighty-Four, (1987), 5.
Law Review 489, 493-494. 104. J H Wigmore, Evidence in Trials at Common Law, Tillers rev, vol 1,
81. For example, R v Fennell (1881) 7 QBD 147 (inducements to 1983, 689-690 [12] (relevance), 888 [21], n 8 and 894-895 [21]
confessions); R v Riley (1887) 18 QBD 481 (holding that while a n 12 (test for appeal in relation to evidentiary error: s 167 of the
prosecutrix complaining of rape cannot be cross-examined about Indian Evidence Act described as ‘the only form consistent with
intercourse with persons other than the accused, she was open to common sense and the theory of trials’); Tillers rev, vol 2, 1983
cross-examination about other acts of intercourse with the accused); [25] (circumstantial evidence); 966-967 [27] (nature of judicial
R v Gibson (1887) 18 QBD 537 (Exchequer rule in criminal appeals). investigations: Stephen is described as one ‘of the most original
82. Lamb v Munster (1882) 10 QBD 110, 112-114 (followed in thinkers in the law of evidence’); 1402 [64] (virtue of common law
Bell v Klein [1954] 1 DLR 225, 227-228) (privilege against self- rules restricting proof of parties’ character in civil cases).
incrimination); R v Downer [1874-1880] All ER Rep Ext 1378 (proof 105. ‘An Introduction on the Principles of Judicial Evidence’ in the Indian

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Evidence Act (1872), 7. 133. There are bibliographical problems with the Digest. The publishing
106. ‘Codification in India and England’ (1872) 18 Fortnightly Review 644, history as recorded in the twelfth edition (revised) published in
672. 1948, iv does not correspond either with the usage of judges and
107. ‘An Introduction on the Principles of Judicial Evidence’ in the Indian writers or with the way some earlier editions described themselves.
Evidence Act (1872), 18-51. Several High Court judges have said there was a fifth edition of the
108. A Digest of the Law of Evidence (1876), 135-137. Digest in 1887 – Evatt J in Cheers v Porter (1931) 46 CLR 521, 538,
109. The twelfth edition, reprinted with editions in 1948, described McHugh J in Palmer v R (1998) 193 CLR 1, 24 [55] n 54 and Gleeson
the publication containing the new definition as the first edition CJ in Goldsmith v Sandilands (2002) 190 ALR 370, 371 [2] n 2 (see
reprinted ‘with many alterations 1877’: A Digest of the Law of Evidence, also McHugh J, 377 [31] n 8). Wigmore spoke of a ‘third ed 1876’ –
12th ed, (revd), 1948, iv. Chadbourn rev, vol 7 [1986] 245 and a ‘3rd ed 1877’ – [1981] 210
110. R v Kearley [1992] 2 AC 228, 263. n 20. The Joint Courts Library has a ‘Second Edition’ published in
111. Pollitt v R (1992) 174 CLR 558, 571. 1876 which seems to be what the 1948 version refers to as a reprint
112. Harris v Minister for Public Works (New South Wales) (1912) 14 CLR with slight alterations.
721, 725 per Griffith CJ. 134. Sir Harry Lushington Stephen and Captain R Townshend-Stephens
113. Palmer v R (1998) 193 CLR 1, 24 [55] n 54 per McHugh J. (eds), A Digest of the Law of Evidence in Courts Martial (under the Army
114. Goldsmith v Sandilands (2002) 190 ALR 370, 371 [2] n 2 per Gleeson and Air Force Acts) (1934).
CJ and 377 [31] n 8 per McHugh J. 135. For example, there was a ‘second edition’ in 1879 (reprinted by
115. HML v R (2008) 235 CLR 334, 425 [275] per Heydon J. Garland in 1978).
116. R v Randall [2004] 1 WLR 56, 62 [20]. 136. For example, a second American edition (from the sixth English
117. Jairam v Trinidad and Tobago [2005] UKPC 21, [11]. edition) by George Chase in 1898 – at 469 pages an enormous
118. Seaboyer v R [1991] 2 SCR 577, 679 per L’Heureux-Dubé and expansion – reprinted by F B Rothman 1991; a fourth American
Gonthier JJ. For other approval in various jurisdictions, see edition by William Reynolds in 1905.
Commissioners of Customs and Excise v Harz and Power [1967] 1 AC 137. For example, a New South Wales edition by Henry Giles Shaw,
760, 785; Bortolotti v Ontario (Minister for Housing) (1977) 76 DLR barrister and police magistrate (1909). The work is still commonly
(3d) 408, 416; Jeppe v R (1985) 61 ALR 383, 393; Sydney Steel v cited: eg Maher v Bayview Golf Club, [2004] NSWSC 275, [27]. It was
Mannesmann Pipe (1985) 69 NSR (2d) 389, [15]; D v Hereford and cited by the NSW Court of Criminal Appeal on a point no longer part of
Worcester CC [1991] Fam 14, 22; R v Raso (1993) 68 A Crim R 495, the law in R v Connors (1990) 48 A Crim R 260, 267.
509; R v Hazim (1993) 69 A Crim R 371, 377; AJ v Western Australia 138. J H Wigmore, Evidence in Trials at Common Law , Tillers rev, vol 1,
(2007) 177 A Crim R 247, 251 [5]; Azarian v Western Australia [12] 689-690 (relevance); Chadbourn rev, vol 3A, 861 [986] n 16
(2007) 178 A Crim R 19, 29-30 [34]. (doctrine of ‘privilege against disgracing answers’); Chadbourn rev,
119. Goldsmith v Sandilands (2002) 190 ALR 370, 371 [2] n 2. vol 6, 432 [1828] n 9 (unsworn evidence of children); Chadbourn
120. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895) 377. rev, vol 7, 210 [1981] n 20 and 245 [1986] (reputation of witnesses).
121. John W Bicknell (ed), Selected Letters of Leslie Stephen, vol 1, The History of English Criminal Law and other writings of Stephen
1864–1882 (1996) 118 n 3. were also quite frequently quoted or referred to in Wigmore.
122. Hansard HC, 5 August 1873, 1559. 139. See, for example, the citations in David P Leonard, The New
123. A Digest of the Law of Evidence (1876), iii. Wigmore: A Treatise on Evidence: Evidence of Other Misconduct and
124. See Bills – Public, (1873) vol 2, 355, where it is stated that Bill Similar Events (2009) § 4.3.1 text, nn 27-33 and 57-65.
274 was not printed. An officer of the Parliamentary Archives has 140. Cullen v Welsbach Light Co of Australasia Ltd (1907) 4 CLR 990, 1013-
advised that no copy exists in its possession. It is quite possible 1014.
that no copy exists, for Stephen was impetuous and careless with 141. Tasmania Gold Mining Co Ltd v Cairns (1908) 5 CLR 280, 282-283.
papers. Leon Radzinowicz, Sir James Fitzjames Stephen 1829-1894 142. Brown v R (1913) 17 CLR 570, 582.
and his Contribution to the Development of Criminal Law (1957) 51 143. South Australian Co v Richardson (1915) 20 CLR 181, 196.
incorrectly suggests that that bill is what he describes as ‘the Code 144. Dent v Moore (1919) 26 CLR 316, 326.
of Evidence, 69, 1872, Parl. Papers, Bills (1872) vol 1, p 685’: but 145. Houston v Wittner’s Pty Ltd (1928) 41 CLR 107, 123.
the bill so referred to was introduced while Stephen was still in 146. Webb v Bloch (1928) 41 CLR 331, 367.
India. Intrinsically interesting though it is, it does not appear to be 147. Cheney v Spooner (1929) 41 CLR 532, 539.
traceable to Stephen. C J W Allen, The Law of Evidence in Victorian 148. Cheers v Porter (1931) 46 CLR 521, 532, 538, 542-543.
England (1997) 27, says that that bill was a private member’s bill 149. Davis v Bunn (1936) 56 CLR 246, 270.
read for the first time on 28 February 1872, was dropped at the 150. Martin v Osborne (1936) 55 CLR 367, 383-384, 386, 397.
second reading and may have triggered Coleridge’s request to 151. Axon v Axon (1937) 59 CLR 395, 412.
Stephen to draft an evidence code bill. 152. Harriman v R (1989) 167 CLR 590, 606-607.
125. Terunnanse v Terunnanse [1968] AC 1086, 1092. 153. Azzopardi v R (2001) 205 CLR 50, 102 [151] (also citing Stephen’s A
126. A Digest of the Law of Evidence (1876), iii. History of the Criminal Law of Evidence).
127. A Digest of the Law of Evidence (1876), v. 154. Cornwell v R (2007) 231 CLR 260, 275 [39] n 33: 276-277 [41]-[42]
128. A Digest of the Law of Evidence (1876), vii-viii. the positions taken up by Stephen’s 1878 Bill and the Commission’s
129. Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895), 274. 1879 Bill were discussed.
130. H S Maine, ‘Mr Fitzjames Stephen’s Introduction to the Indian 155. Mountney v Smith (1904) 1 CLR 146, 151.
Evidence Act’ (1873) 19 Fortnightly Review 51, 55. 156. Cullen v Welsbach Light Co of Australasia Ltd (1907) 4 CLR 990, 992.
131. Imperial Legislative Council (India), Abstract of the Proceedings of the 157. Brown v R (1913) 17 CLR 570, 571 (NSW edition).
Council of the Governor-General of India, Assembled for the purpose of 158. Cheney v Spooner (1929) 41 CLR 532, 535.
Making Law s and Regulations, 1872, vol XI (1873), 141. Sir George 159. Martin v Osborne (1936) 55 CLR 367, 369.
Campbell was one of the original judges of the Calcutta High Court. 160. Ahern v R (1988) 165 CLR 87, 91 (7th ed, 1905).
132. A Digest of the Law of Evidence (1876) vii. 161. Helton v Allen (1940) 63 CLR 691, 693-694.

162. Reynolds v G H Austin & Sons Ltd [1951] 2 KB 135, 145;Taylor’s DLR 213, 219; Middlemiss v Middlemiss [1955] 4 DLR 801, 811; Re
Central Garages (Exeter) Ltd v Roper (1951) 115 JP 445; Apollo Shower Miller (1978) 92 DLR (3d) 255, 257.
Screens Pty Ltd v Building and Construction Industry Long Service 190. Selvey v Director of Public Prosecutions [1970] AC 304, 326.
Payments Corporation (1985) 1 NSWLR 561, 565. See also Cummings 191. Zwicker v Young [1929] 1 DLR 602, 604.
v Vancouver [1911] 1 WWR 31, 34; R v Kakelo [1923] 2 KB 793, 795; 192. Donaldson v State of Western Australia [2007] WASCA 216, [65].
Stoney v Eastbourne Rural District Council [1927] 1 Ch 367, 382-383; 193. R v Gunewardene [1951] 2 KB 600, 608-609; R v Hoban [2000] QCA
Dixon v McAllister [1945] NI 48, 59; MacLeod v R [1968] 2 CCC 365, 384, [26]; R v BDX [2009] VSCA 28, [35]-[37].
368; Procter & Gamble Co v Cooper’s Crane Rental Ltd (1972) 33 DLR 194. Hally v Starkey; Ex parte Hally [1962] Qd R 474, 478 per Gibbs J;
(3d) 148, 151. Hooper v Gorman [1976] 2 NSWLR 431, 440.
163. Ulrich v R [1978] 1 WWR 422, [5]. 195. This is a proposition which Judge Cardozo extracted from Art 91(5)
164. R v Sileski (1921) 32 BR 135; R v Markadonis [1935] 2 DLR 105, 106; and (6) of the first ed (Art 98(5) and (6) of the twelfth ed) in Utica
R v Matchette (1946) 19 MPR 132, 137; Commissioners for Customs v City National Bank and Gunn 118 NE 607, 608 (1918), quoted by
and Excise v Harz and Power [1967] 1 AC 760, 783, 788-792 (CCA) Lord Wilberforce in Prenn v Simmonds [1971] WLR 1381, 1384. See
and 795, 801, 808, 814 (HL); R v Sweezey (1974) 27 CRNS 163, [32]; also Appleby v Pursell [1973] 2 NSWLR 879, 890.
R v Hayter [2005] 1 WLR 605, 608. 196. Korner v Witkowitzer [1950] 2 KB 128, 163.
165. R v McCafferty (1886) 25 NBR 396, [15]. 197. For example, Massey v Allen (1879) 13 Ch D 558, 560; R v Riley
166. R v Black (1922) 16 Cr App R 118, 120; Falcon v Famous Players Film (1887) 18 QBD 481, 482; Ballantyne v MacKinnon [1896] 2 QB 455,
Co [1926] 2 KB 474, 481. 457; Mercer v Denne [1905] 2 Ch 538, 549; R v Ball [1911] AC 47,
167. R v Hall [1973] QB 496, 502. 54; Tucker v Oldbury Urban District Council [1912] 2 KB 317, 318;
168. Lloyd v Powell Duffryn Steam Coal Co Ltd [1913] 2 KB 130, 137. R v Cohen (1914) 10 Cr App R 91, 95; R v Baskerville [1916] 2 KB
169. R v Connors (1893) 5 CCC 70, 70-71. 658, 661; Conquer v Boot [1928] KB 336, 337; Re Davy [1935] P 1,
170. Karpati v Spira, unreported, Supreme Court of New South Wales, 6 June 4; Teper v R [1952] AC 480, 485; Corke v Corke [1958] P 93, 94-95;
1995. Murdoch v Taylor [1965] AC 574, 579; Myers v DPP [1965] AC 1001,
171. R v Bannerman (1966) 55 WWR 257, [95]. 1017; Selvey v DPP [1970] AC 304, 315; R v Z [2005] 2 AC 467,470.
172. R v Barsalou (1901) 4 CCC 347, 349; R v Castellani (1967) 59 WWR 198. Richard Harris, Hints on Advocacy, 16th ed, 1932, introduction by
385, [94]; R v Ma (1978) 44 CCC (2d) 511, 517. Judge Parry, vi.
173. Marshall v Wettenhall Bros [1914] VLR 266, 269; R v Wagner [1931] 2 199. Director of Public Prosecutions v Selvey [1970] AC 304, 326.
WWR 650, [7]; McQuaker v Goddard [1940] 1 KB 687, 700; Harrison 200. Haddow v Glasgow City Council (2005) SLT 1219, 1223.
v Flaxmill Road Foodland Pty Ltd (1979) 22 SASR 385, 386-387; Saul v 201. Houston v Wittner’s Pty Ltd (1928) 41 CLR 107, 123.
Menon [1980] 2 NSWLR 314, 325. 202. Ex parte Bottomley [1909] 2 KB 14, 21.
174. Ex parte Bottomley [1909] 2 KB 14, 21, 23; R v Saunders (1985) 15 A 203. Re Overbury (decd) [1955] Ch 122, 126.
Crim R 115, 121-122. 204. Martin v Osborne (1936) 55 CLR 367, 383.
175. Haydon v Magistrates Court [2001] SASC 65, [114]. 205. Sidney L Phipson, The Law of Evidence, 1st ed (1892) v.
176. R v Bond [1906] 2 KB 389, 402; R v McLean (1906) 11 CCC 283, 206. Sir Rupert Cross, ‘The Making of English Criminal Law (6) Sir James
286; Perkins v Jeffery [1915] 2 KB 702, 708; R v Belliveau (1954) 36 Fitzjames Stephen’ [1978] Criminal Law Review 652, 655.
MPR 154, 160; R v Heidt (1976) 14 SASR 574, 586. 207. Abstract of the Proceedings of the Council of the Governor-General
177. Preeper v R (1888) 22 NSR 174, [11]; Fa v Morris (1987) 27 A Crim R of India, Assembled for the Purpose of Making Laws and Regulations.
342, 352. 1872, vol XI, Office of the Superintendent of Government Printing,
178. Ord v Ord [1923] 2 KB 432, 440; Woodland v Woodland [1928] P Calcutta (1873) 406-407.
169, 172-173; Hollington v F Hew Thorn & Co Ltd [1943] KB 587, 208. ‘A Critique of the Australian Law Reform Commission Draft Evidence
594; Hull v Hull [1960] P 118, 120; Field v Field [1964] JP 336, 348; Bill’ (1992) 9 Australian Bar Review 185, 186.
In the Marriage of Wakely (1979) 35 FLR 138, 148.
179. Corke v Corke [1958] P 93, 98.
180. R v Smith (1909) 2 CrAppR 86,87; R v Pitt [1983] QB 25, 32; R v
Prefas and Pryce (1986) 86 Cr App R 111, 114.
181. R v Deacon [1947] 1 WWR 545; R v Prefas and Pryce (1986) 86 Cr
App R 111, 114; R v Cairns [2003] 1 WLR 796, 803 [37]-[39]; Re
Madden [2004] EWCA Crim 754; [2004] PNLR 37.
182. R v Lillyman [1896] 2 QB 167, 176; R v Reindeau (1900) 4 CCC 69.
183. Shenton v Tyler [1939] Ch 620, 640.
184. Polak v Polak (1962) 38 DLR (2d) 333.
185. Town of Walkerton v Erdman (1894) 23 SCR 352.
186. Sigroum Office Management v Milanis (1985) 4 CPC (2d) 243.
187. Fox v Sleeman (1897) 17 PR (Ont) 492, 494; Misener v Hotel Dieu
Hospital (1983) 42 OR (2d) 694, 696; Reichmann v Toronto Life
Publishing Co (1988) 66 OR (2d) 65.
188. Toohey v Metropolitan Police Commissioner [1965] AC 595, 606.
189. Ivett v Ivett (1930) 29 Cox CC 172, 175; Beattie v Beattie [1945] 1
DLR 574, 582-583; Re Bell [1946] OR 854, 861; Re Jones [1955] 5

The Influence of Sir James Stephen On The Law of Evidence : Features

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| features |

The influence of Sir James Stephen on the

Stephen’s career in summary

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could be called ‘great’ as an advocate, he established

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Influence of Stephen’s decisions

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Malaysia, Singapore, Brunei, Kenya, Nigeria, Uganda,

On the strength of the Indian Evidence Act, Stephen

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On 12 March 1872 Stephen informed the Legislative

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