This article was published in Australian Dictionary of Biography, Volume 2, (MUP), 1967
John Stephen (1771-1833), judge, was the son of James Stephen, of Aberdeen, Scotland, and Sibella Milner, of Poole, Dorsetshire. Some of the children of this union and some of their descendants were to secure to the Stephen clan a very distinguished place in the legal history of England and several of her colonies. The most influential of them in British colonial history was James Stephen junior, who from 1836 to 1847 was permanent under-secretary of state for the colonies. John Stephen was his uncle, and to his nephew he owed the appointment that brought him to New South Wales in August 1824.
In early manhood John Stephen built up a lucrative practice as an attorney and barrister in Basse Terre, St Kitts, West Indies. Having acquired a competency there, he returned to England about 1808, and in 1810 bought a beautiful little estate near Wells, Somersetshire. Unfortunately for him and his family, he speculated unprofitably, and in 1815 was obliged to resume his practice at Basse Terre. But he was unable to regain his previous footing and, as his son Alfred recorded, 'dear mother was compelled to be frugal in all things'. Relief came from nephew James. A legal office requiring a man of Uncle John's qualifications had been created at Sydney by the New South Wales Act of 1823 and, at the request of James Stephen, Earl Bathurst 'enabled' John Stephen, in his nephew's words, 'to change the land of slaves for the land of convicts'.
On 20 January 1824 Bathurst informed Governor Sir Thomas Brisbane that 'His Majesty [had] been pleased to nominate John Stephen, Esqre., Barrister at Law, the late Solicitor General of the St. Christopher's Government, as the Commissioner of the several Courts of Requests which are to be at present established in New South Wales'. His Majesty had overlooked the fact, however, that the New South Wales Act, section 20, provided that the said Courts of Requests were to be held by a commissioner appointed by the governor of the colony. This power was so promptly exercised by Governor Brisbane that, several months before Bathurst's dispatch was received, Dr Henry Grattan Douglass had been appointed to the position. In the result he was given another post at a higher salary, and on 7 August 1824 John Stephen entered on duty. Fortune now favoured him. On the day following his appointment as commissioner of the Courts of Requests, His Majesty had appointed him solicitor-general of New South Wales. He was thus the first to hold that office in the colony. No salary was attached to it, but as he had the right of private practice it enhanced his status at the Bar and he was soon in receipt of fees for assisting Attorney-General Saxe Bannister. Moreover within twelve months his official salary was raised from £600 to £800.
One of the first, if not the first, briefs held by John Stephen in 'the land of convicts' arose out of the opinion which he had given certain justices of the peace, that Bannister was in error in holding that, under section 19 of the Act of 1823, free persons arraigned in Courts of Quarter Sessions must be tried before an ordinary jury of twelve of the citizenry. The issue was determined by Chief Justice (Sir) Francis Forbes on 14 October 1824. He upheld Bannister's contention. A month later, on the motion of D'Arcy Wentworth who declined nomination for the position, John Stephen was unanimously chosen as chairman of the Courts of Quarter Sessions. After 'the experiment', as Brisbane described it, of trial by a civil jury in criminal cases in such courts had been in operation for a year, the governor asked Stephen to give him his opinion as to the success or otherwise of it. 'I have found in the Juries of this territory', replied the commissioner, 'as much attention to regularity and regard to their duty, as in any Juries in England or in any part of His Majesty's Dominions. I am persuaded that the Institution of Juries in this Colony in all cases would be highly beneficial'.
In November 1824 Forbes accompanied Brisbane on a tour of inspection, by way of Port Macquarie, to the Brisbane River. In his absence Stephen, under a commission issued by the governor, acted as chief justice. On 17 August 1825 the Legislative Council, in Forbes's absence through illness, resolved that, in view of the multifarious and heavy duties of the chief justice and their obvious effect upon his health, provision should be made without delay for the appointment of an assistant judge in the Supreme Court, and instanter they passed a short Act authorizing the governor to do this. Within the hour Brisbane appointed John Stephen to the position. He thus became the first puisne judge of the Supreme Court of New South Wales. There was grave doubt, however, as to whether this Act, 6 Geo. IV, no 16, was intra vires the Legislative Council. Under the New South Wales Act the power to make any such addition to the bench of the Supreme Court was reserved to the Crown. This doubt was never resolved. By a warrant under the sign manual, 1 April 1826, Stephen was formally appointed puisne judge, and in due course the secretary of state directed that his salary of £1500 as such should be backdated to 17 August 1825. In February 1826 Governor (Sir) Ralph Darling appointed him to act as chief justice during the absence of Forbes on sick leave for about three months. 'I trust', wrote the governor, that 'the necessity, which has caused the arrangement, will not exist for any length of time, as I apprehend, from Mr. Stephen's general health and constitution, that he would prove unequal to the burthen, which Mr. Forbes's absence has just now imposed upon him'.
'As [Stephen] laboured under considerable infirmity at the time of my arrival, and resigned office in consequence soon afterwards', wrote Governor Bourke in 1834, 'I am not able from personal observation to communicate anything respecting his usefulness as a Judge in this Colony; but I understand he was previously considered a person of considerable professional knowledge and ability'. It may be assumed that this understanding derived from Chief Justice Forbes. With some hesitation because of Stephen's intemperance, in respect of which the latter gave him accepted assurances, but upon which Colonel Henry Dumaresq dilated in a letter to Under-Secretary Robert Hay, Forbes had commended his appointment as puisne judge to Brisbane, and he was in friendly relations with him as a colleague for seven years.
'Mr. Stephen … poor Man', Governor Darling informed the secretary of state in July 1828, 'is a Tool in the hands of the Chief Justice, who works with him as best answers his immediate object'. John Macarthur senior conveyed the same opinion to his son John, but in more opprobrious terms. No specific evidence was adduced by either of these gentlemen in support of this charge. Neither Forbes nor Stephen was acquainted with it, still less given an opportunity to answer it. It is true that, after the manner of the judiciary, Stephen frequently concurred with the chief justice when they sat together, but it is no less true that on occasion he differed from him, as he did in the leading case of R. v. Farrell and Dingle, and in the notable appeal case of Wentworth v. Mansfield when Stephen delivered the minority judgment.
When roused, as when his precedence vis-à-vis (Sir) James Dowling was in question, Stephen showed that he was not of the stuff of which tools and dupes are made. So, too, when he deemed that Darling was encroaching upon the province of the judiciary, or concluded that the legal rights of accused persons were being infringed by superior authority, he independently asserted himself with unmistakable energy. Indeed his unrestrained condemnation from the bench of the practice whereby a military jury was empanelled to try cases in which the governor was, in reality, the prosecutor, contributed to a radical amendment of the law in this respect.
Stephen could be blunt to the point of rudeness. He disregarded the secretary of state's instructions relating to official correspondence in a manner very discourteous to the governor. He allowed Wentworth unusual latitude in cases that came before him touching the honour and dignity of Darling and Archdeacon Thomas Hobbes Scott. At times he expressed himself from the bench in terms that must have grated on the ears of his learned brethren. On several occasions he was sternly admonished by the Colonial Office for being indiscreet, one of the more severe of these censures being written by his nephew James although dispatched over the signature of the secretary of state. 'If I have anything to reproach myself with, in regard to Mr. Justice Stephen', wrote Darling in July 1831, 'it is the forbearance I have shewn in not reporting his unfitness for his Office. I abstained in order to promote the wishes of His Majesty's Government', meaning thereby, it is apprehended, the wishes as conceived by the governor of the judge's very influential relation in the Colonial Office.
The 'unfitness' to which the governor alluded was in part physical. When Mr Justice Dowling first saw Stephen in February 1828 he appeared to him 'very infirm, shattered and in bad health. [He] seemed to be marked down for another world'. Repeated and protracted attacks of gout kept him off the bench for months on end, and thus added to the already heavy burdens of the chief justice and of Dowling, the second puisne judge. Yet Stephen clung to his seat. In October 1831 when, according to his son, he was 'so infirm in body and in memory that he [was] incompetent to the discharge of his public duties', he tendered his resignation to the secretary of state conditional on receiving a retiring allowance of £750 a year. Viscount Goderich fixed the figure, however, at £500, and in consequence Stephen was still in office when his successor, William Burton, reached Sydney in December 1832. Ten days later under pressure from Bourke and on the understanding that his salary was to continue until the end of the month, Stephen, grumbling the while, resigned. He died on 21 December 1833. His widow died in 1863 in her eighty-ninth year.
Any sketch of the life of Mr Justice John Stephen would be inadequate without some reference to the Stephen ménage. He and his wife Mary Anne, née Pasmore, had six boys, one of whom died aged 10, and three girls. His fourth son, Alfred, was appointed a puisne judge of the Supreme Court of New South Wales in 1839, and was chief justice in 1844-73. Of the other children, John and Francis, and the eldest daughter Sibella, by reason of her marriage to Captain Robison, were often in Darling's mind. John gave him abundant cause to dismiss him from the public service. Robison, for much less cause, Darling cashiered and successfully prosecuted in London. Francis was a lively young spark who hobnobbed with Wentworth, Robert Wardell, John Mackaness and other Adullamites whom Darling detested. He and Edward Smith Hall were the leaders in organizing a final, but abortive demonstration against the departing governor. It follows, therefore, that Darling's name must have been a byword at Ultimo House, the town residence of Mr Justice Stephen. It is extremely likely that this home was the source of some of the leakages to the hostile press for which Darling blamed Chief Justice Forbes. Stephen resented the imputations, and his dislike of the governor, which was avowedly shared by his nephew in Downing Street, became the more intense.
C. H. Currey, 'Stephen, John (1771–1833)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/stephen-john-1292/text3775, published first in hardcopy 1967, accessed online 5 September 2015.
This article was first published in hardcopy in Australian Dictionary of Biography, Volume 2, (MUP), 1967