This article was published in Australian Dictionary of Biography, Volume 6, (MUP), 1976
Sir Alfred Stephen (1802-1894), chief justice and legislator, was born on 20 August 1802 at Basseterre, St Christopher (St Kitts), West Indies, fourth son of John Stephen and his wife Mary Anne, née Pasmore. He returned to England with his mother in 1804 and lived at Alphington near Exeter. In 1807 they moved to Shefford, Bedfordshire, where he attended the village school and was taught knitting to keep him quiet. In 1810 he went to Charterhouse, London, and next year to a small school kept by Rev. W. Valentine at Martock, Somerset; he completed his schooling under Dr Richard Lewis at Honiton Grammar School. In 1815 Stephen went back to Basseterre where he read Blackstone's Commentaries, acted as clerk to his father, and in 1817 was commissioned a lieutenant in the local Militia Regiment of Foot (Fusiliers). In 1818 he returned to London and entered Lincoln's Inn on 16 May where he read for the Bar under his cousins Henry Stephen, serjeant-at-law, and (Sir) James Stephen. Although impecunious, Alfred led a gay life, enjoying the theatre, concerts, pleasure trips, walking tours and visits to his relations on which he met prominent politicians and members of the Clapham sect. He recalled that 'Paganini on his unearthly violin, and Lindley on the violincello, were a delight to me'. On 20 November 1823 he was called to the Bar, having already joined Girdlestone and Cooper 'in Business Chambers'.
On 22 June 1824 at St George the Martyr's Church, Queen Square, Holborn, Stephen married Virginia, daughter of Matthew Consett, a merchant. On 31 July James Stephen wrote to his friend Lieutenant-Governor Arthur asking for his good offices towards Alfred: 'He is a pleasant, lively, talkative youth, who has neither thought nor read deeply upon any subject … generally well informed, though not profound in his own profession as a lawyer; … I am afraid he is something of a spendthrift … He is coming out to Van Diemen's Land to live by the Law'. The Stephens arrived at Hobart Town in the Cumberland on 24 January 1825. Arthur, assailed by R. W. F. L. Murray in the Hobart Town Gazette and doubting the loyalty of his attorney-general J. T. Gellibrand, availed himself 'of the timely arrival of Mr Stephen', and on 9 May appointed him solicitor-general and ten days later crown solicitor with a salary of £300. His duties included drawing up all conveyances of government property.
Stephen soon protested against Gellibrand's intimacy with Murray and his habit of drawing pleadings for and accepting fees from both sides. In August Arthur refused to accept Stephen's resignation pending a commission of inquiry, which five months later found his charges against Gellibrand substantially proven. Stephen complained to Arthur on 3 October that he had been compelled to give up his practice, had 'been made the unceasing object of gross scurrility and invective … and [had] no opportunity for resorting to advice better than my own'. Arthur commended him to Lord Bathurst as he had 'done himself the most material personal injury in the cause of the Crown'.
In 1825 Stephen, having goods and cash to the value of £3000, was granted a block fronting Macquarie Street where he built a two-storied stone house with a walled garden 'studded with the choicest fruit trees'. Founding vice-president of the Hobart Town Mechanics' Institute in 1827, he was a churchwarden of St David's in 1827-31 and registrar of the Archdeacon's Court in 1828-31 at £60 a year. Stephen was an original shareholder in the Derwent Bank until asked by the lieutenant-governor to sever his connexion in 1828, and was involved in speculative financial ventures. He also borrowed money from Arthur to buy real estate and to lend out on mortgages, which he believed to be 'the best mode of investing, & the most profitable'. After repeated requests in 1829 his salary was increased to £600 in lieu of extra fees.
In 1828 Stephen questioned the validity of all land titles in the colony on the grounds that grants had been made in the name of the governor rather than the sovereign. After 'laborious researches', in 1831 in four massive reports he exposed extensive land jobbery and wilful violations of conditions of grants. He argued that a royal warrant and subsequent proclamation were insufficient to validate titles, for 'to confirm grants so grossly and extensively inaccurate' would perpetuate confusion and error and involve the people in massive litigation. The lieutenant-governor acted upon Stephen's advice to set up a land board to issue new titles after proper description and inquiry.
By 1830 he was finding that he could not 'discharge with satisfaction to myself both my public & private professional duties'; refusing to give up his practice as his salary would not maintain his family, he asked for either a large increase in salary or higher office. Promised the attorney-generalship, on 22 January 1832 Stephen took his wife and five children to England to visit her ageing parents. In January 1833 he asked for extended leave because of illness, but he so pressed his views on the Colonial Office that he confided to 'Cousin James' that he was 'afraid of being thought rather too impertinent a person for a “Colonial Attorney-General”'. He was pleased that some of the new rules of the Supreme Court of Van Diemen's Land had been 'followed' in England, and also with the admiration accorded the two pictures of John Glover that he had taken with him: moreover, the Consetts had settled £5000 on Virginia and the children.
The Stephens returned to Hobart on 14 November 1833. Confirmed as attorney-general on 6 May 1832 with a salary of £900, he found great arrears of work; he was also a member of the Legislative Council ex officio and his new duties included drafting all legislation and piloting it through the council. Always a strong advocate of trial by jury, on 5 November 1834 he carried the Trial by Jury Act. He was also very proud of the Deserted Wives and Children Act of 1837 that allowed a deserting husband to be sued for maintenance. In 1836 Arthur allowed Stephen to relinquish the duties of crown prosecutor, as he still complained of overwork partly because of 'the most lucrative and extensive private practice, of any of the Barristers in the Colony'. Stephen managed to engraft 'upon the Colonial Code a large portion of those reforms in the law and in the practice of the courts which have recently received the sanction of the Imperial Legislature'. Nevertheless in the scandal-loving and backbiting society of Hobart with its scurrilous press he made many enemies, especially among opponents of Arthur's government.
On his return from England, Stephen had a misunderstanding with Arthur over the possibility of the lieutenant-governor's recall and replacement by James Stephen. Late in 1835 they became estranged after Alfred's brother George allegedly cheated while playing cards with Henry Arthur, the lieutenant-governor's nephew; he intervened on his brother's behalf, feelings ran high and in a strange scene at an inn in New Norfolk in the early hours, Alfred was challenged to fight a duel by an emissary of Henry Arthur. The local police constable bound him over to keep the peace. Indignant, Stephen begged the lieutenant-governor to restore George 'to Society'. The affair rankled for months and led to the alienation of old friends. From July 1836 he was in conflict with Judge Montagu whom he accused of 'violent conduct & most improper language' on the bench. Montagu retorted that Stephen had 'attacked the Judges and had endeavoured to lower both the Government & the Court in public esteem' by disrespectful behaviour, such as 'eating sandwiches from a basket and drinking wine and water out of a flask' while sitting in court. Arthur severely admonished them.
On 23 January 1837 Virginia Stephen died in childbirth leaving two daughters and five sons; two daughters had died in infancy. Grief-stricken, and with his health impaired, Stephen resigned as attorney-general on 19 September and soon sold his house. He made £3000 a year in private practice, but a new phase of his life had begun, with sober assessment replacing his earlier carefree outlook. On 21 July 1838 at St David's Church he married Eleanor Martha Pickard (d.1886), daughter of Rev. W. Bedford; with many virtues but lacking humour and an inquiring mind, she was an admirable stepmother and bore him four sons and five daughters; one son died in infancy. Next year he accepted a temporary judgeship in Sydney despite a pecuniary sacrifice.
After laudatory farewells in Hobart and Launceston, Stephen reached Sydney in the Medway on 7 May 1839 and took his seat on the bench on the 14th. He was soon involved in differences of opinion with Judge J. W. Willis, particularly over equity procedure, and in 1840 corresponded with Chief Justice Dowling about the Supreme Court rules. Appointed a puisne judge in 1841, he gradually introduced the Westminster system of pleading at Common Law and drafted the Administration of Justice Act that provided for circuit courts. He continued to draft legislation and afforded 'great assistance' with the Insolvency Act. In 1843-45 he published a treatise on the Constitution, Rules, and Practice of the Supreme Court of New South Wales, which W. B. Dalley in 1883 asserted was still 'the best authority on the subject'.
In 1844 Dowling's fatal illness and the departure of Judge Burton for Madras, left Stephen the only effective judge. In October he and Attorney-General J. H. Plunkett claimed the vacant chief justiceship; but Stephen was appointed in an acting capacity and confirmed in office on 2 June 1845: James Stephen played no part in the decision. He was knighted in 1846 after pointing out that the two previous chief justices had been thus honoured. Presiding over his court with courtesy, he guarded its dignity and strove to appoint sufficient officials to it. A capable administrator, he protested to the government about the squalid and insanitary state of the building, suggesting improvements supported by plans drawn by the colonial architect Edmund Blacket. In the 1850s he made representations about the incomplete state of the Criminal Court House, Darlinghurst. Although fussy about his health, he 'possessed a robustness beyond the ordinary' to survive sitting constantly in the Sydney court-houses. In 1848 the Privy Council, upholding Stephen, had reversed the Supreme Court decision in Bank of Australasia v. Breillat, and that year he chaired the law commission on the Supreme Court which recommended the appointment of an additional judge. He argued that the judges should have leisure for professional and general reading: 'All my own studies, and almost all my office work, have been at night'.
A prominent Anglican layman, Stephen in the 1840s was a member of the Australian Diocesan Committee and in 1858 was a delegate to the synodical conference. He was vice-patron of the Commercial Reading Rooms and Library and a committee-man of the Temperance Society. From the 1850s he served as president of the Sydney Female Refuge Society and the Sydney Ophthalmic Institution, as a director of the Society for the Relief of Destitute Children, on the committee of the Diocesan Board of Missions, as a vice-president of the Australasian Botanical and Horticultural Society and as an official trustee of the Australian Museum. In 1861 he was a founder and president of the Home Visiting and Relief Society, and in the 1860s a director of the Sydney Eye and Ear Institution and a vice-patron of the Orpheonist Society.
In 1853 Stephen published a pamphlet, Thoughts on the Constitution of a Second Legislative Chamber for New South Wales, in which he advocated an Upper House of twenty-five members, twelve nominated for life and twelve elected for nine years by the Legislative Assembly, with the chief justice as ex officio Speaker. He repudiated a wholly nominated chamber because of the danger of 'swamping', but defended the power of nomination as 'an ancient and valuable prerogative of the Crown'. On 13 May 1856 he was appointed to the new Legislative Council. Although (Sir) Edward Deas Thomson had refused the presidency as a political appointment, Stephen thought otherwise and accepted the office. Delighted, he carefully prepared all the rules and forms of the House and those respecting communications between both Houses. Determined not only to administer the law but also to make it as perfect as possible, Stephen made the most of his opportunities in the council. In 1856-58 he introduced fourteen law reform bills of which six were enacted. By identifying 'party' with rancour and prejudice, he could deny he was a party man and assert that his duties were 'calmly to consider, deliberately to investigate, and impartially … to decide'. Nevertheless, he wrote confidentially to Thomson, vice-president of the Executive Council, to ask if his resignation 'would inconvenience the government'. He resigned as president on 8 January 1857 but, despite criticism from the Empire and attacks from the assembly, did not resign from the council until 16 November 1858. He complained to James Macarthur that 'there is no man of authority, or of note — out of N. S. Wales, — who has advanced the opinion that Judges ought not to be in the Legislature'.
Meanwhile in 1854-55 Stephen had been president of the commission for the Paris Universal Exhibition of 1855 and conducted all the relevant correspondence. That year he was chairman of the committee to found an affiliated Anglican college within the University of Sydney. He collected for its building fund, drafted the legislation and ensured its freedom from diocesan control. In 1856 he became a founding fellow of the council of St Paul's College. He confessed to Thomson that his interest in the college 'amounts to something like mania'. When not sitting late in court he delighted to play with his children and his pets, ranging from a dog to a marmoset. By the late 1840s his sons were starting to follow him in the legal profession: Matthew Henry was his father's associate and M. Consett a newly admitted solicitor. As Eleanor told her stepdaughter Virginia, 'The law seems the easiest and most natural of the professions for our boys … Papa's position gives him the opportunity of putting his sons forward in the Law, whereas other professions require what he has not — money'.
In 1859 the Cowper ministry refused Stephen's application for leave. William Forster's ministry granted it but his salary was dependent on a vote of the Legislative Assembly. On 7 December a motion providing for his full salary (£2600) was 'violently opposed by Mr Arnold and Mr Windeyer in very offensive speeches', but carried on 25 January 1860. Stephen sailed for England on 14 February, but Forster's government fell in March before implementing the vote. On 4 April (Sir) John Robertson's ministry, amid angry scenes, carried a motion to pay Stephen £1400; (Sir) James Martin had it rescinded on 11 April and £2000 was voted. Stephen was so outraged that he applied for the chief justiceship of Madras, but was refused on the score of his age. He even contemplated retiring.
Stephen returned on 17 February 1861, restored in health but saddened by the death of his beloved 21-year-old daughter Eleanor. Attacks on him continued; in April in an acrimonious Legislative Assembly debate, he was accused by (Sir) Terence Murray of breaching parliamentary privilege, but was exonerated by a select committee. Stephen was having difficulty in administering the court because of greatly increased litigation, which largely comprised complicated wills and settlements and disputed land titles, 'including that most embarrassing class called squatting actions', caused by Robertson's 1861 land Acts. Lady Stephen recorded that he was often in court after 11 p.m. and on several occasions sat up all night to write judgments. At his farewell dinner in 1860 he had referred to the arrears of the Supreme Court 'which tend much to the injury of suitors there' and said it was impossible for three judges to 'deal with the admiralty business, the ecclesiastical business, the common, the equity and the criminal law'. His pleas to the government to appoint an additional judge were unavailing until after the deaths in 1865 of judges Milford and Wise. However, he regarded the government's appointment of Alfred Cheeke, J. F. Hargrave and Peter Faucett as infelicitous.
Every year Stephen went on circuit which involved dangerous voyages or difficult travelling over bad roads. He kept careful notes of routes and the best inns: he found the Willow Tree Inn 'Tolerable but bedrms seemed close & damp. Good Australian Wine'. At Goulburn in September 1863, despite seldom rising from court before 7 p.m., he went to a meeting of the Philharmonic Society; members of the Bar and local worthies dined with him on most days, and at the end of the sittings he visited F. R. L. Rossi at Rossiville. Stephen became known for his severe sentences. No case created a greater stir than that of Mary Ann Brownlow, whom he had sentenced to death at the Goulburn Circuit Court on 11 September 1855 for the murder of her wastrel husband; he repudiated 'the very dangerous idea that mere absence of a preconceived design to take life … can make the act of taking life less than murder'. In November 1894 the Bulletin used the case as evidence of his severity.
In a memorandum to the Colonial Office dated 19 July 1864, Stephen supported the retention of hanging for attempted murder and rape; he argued that it was the only penalty dreaded by criminals, but concluded that the death sentence 'should never be pronounced … if the Judge himself entertains a scintilla of Doubt as to the Prisoner's Guilt'. To the administrators of justice the upsurge of bushranging in the 1860s seemed like a breakdown of law and order. In 1865 the Felons Apprehension Act made it a felony to harbour or assist a bushranger, a measure he had recommended to the government in February 1863 and helped to draft. In 1864 he tried Frank Gardiner, who had already been acquitted on a charge of attempted murder, for armed robbery and two indictments of robbery, and sentenced him to thirty-two years labour. In 1874 when Governor Robinson decided to pardon the bushranger on condition of his exile, Stephen submitted notes he had made on the activities of Gardiner and his family connexions with Ben Hall, and took exception to the remarks the governor made about him in a controversial minute to the Executive Council. Robinson replied that he had 'never intended to imply, and I did not think, that in passing such a sentence you had either exceeded your legal authority or been influenced by any circumstances which you were not perfectly justified in taking into account'.
The demands of criminal sittings and of appellate hearings consumed so much of Stephen's time that he was anxious to delegate some of his other duties. He refused to be primary judge in Equity and wanted to surrender the burden of being judge commissary in Vice-Admiralty. His efforts in England in 1860 to obtain changes in the organization and practice of the Vice-Admiralty Court had been unavailing, but in 1859-65 the jurisdiction was exercised by Milford. Stephen took over the court from 1865 and had to deal with an increasing number of blackbirding cases. In 1869 after the Daphne had been seized by Captain Palmer, R.N., for slave-trading, he acquitted her master because he was not technically guilty of kidnapping under the legal definition of slavery. Stephen urged the British government to alter the law, and argued that if the Polynesian labour trade were not abolished it should be stringently regulated.
In 1870-72 Stephen was chairman of the Law Reform Commission. Most of the work fell to him and the first report included a draft criminal law consolidation bill of 464 clauses. Collectively his colleagues 'took rather more than their share of the credit for a work so profoundly influenced by Stephen alone and by the stimulus he had derived from reforms to the English criminal law' effected by his cousin Sir James Fitzjames Stephen. He made available to the commission a book in which for over thirty years he had noted down 'every criticism of the rules, and every flaw detected in them during litigation', and 'difficulties arising from the administration of law'. The commission also produced draft lunacy and Supreme Court consolidation bills and recommended reform of the insolvency laws; the Criminal Law Amendment Act was eventually carried in 1883, having been improved by Stephen during its long passage. 'In most matter of legal principle, the law retained, and has continued to retain, the shape and design fashioned for it by the hand of Sir Alfred Stephen'.
On 26 February 1872, after the departure of Governor Belmore, Stephen was called upon to administer the government. He had confessed to Belmore that Prudentia 'is the Deity I regret to say, whom I have least worshipped — & her Temple ought to be the Vice-Regal Mansion'. He was immediately confronted with problems: Judge Hargrave objected to his decision only to 'sit in banc and in Vice-Admiralty Cases', and before sailing the governor had dissolved parliament after supply had been refused. Stephen felt keenly the hardship of the unpaid civil servants and believed they could enforce a claim against the Crown. He therefore sanctioned an arrangement whereby the Bank of New South Wales at its own risk paid the salaries in anticipation of supply being voted. In March, in compliance with instructions from the Colonial Office and after consulting the captains of H.M.S. Blanche and Basilisk, he had accorded de facto recognition to Mr Woods's government under King Cakobau in Fiji and officially informed the British consul that he had done so. Martin strongly protested and disassociated his government from the action.
Martin resigned on 26 April. Stephen was not amused at (Sir) Henry Parkes's successful amendment to the address-in-reply which condemned his agreement with the Bank of New South Wales; but after first asking Forster, he approached Parkes to form his initial ministry; although he made some acerbic comments on the cabinet's members, he recalled his commissioning of Parkes with pride. During his self-styled administration of 'One Hundred Days', Stephen was kept busy. Typically he found time for decorating and altering the hall at Government House and laid the foundation of a portico there. At the end of his term he lamented that it 'was thus my ill fortune … to have met with the disapproval of both the Colonial Executive and Parliamentary authority'.
Stephen was finding his confrères harder and harder to deal with: in 1869 when he judged Rev. Robert Steel innocent of contempt of court in ex parte Hovell, he was overruled. He contemplated resigning and in 1871 asked Sir John Dickinson if he was willing to accept the chief justiceship if he were offered it. Frequently in the minority on the bench, he found it 'little consolation' that his opinion was usually upheld by the Privy Council as he realized that litigants 'cannot always appeal to England'. He complained to Cowper in England of Hargrave's 'insolence, gross & unprovoked insults, & overbearing temper'.
On 12 June 1873 Stephen resigned as chief justice, to take effect from 5 November to allow the government to import a replacement from England if they desired. As the attorney-general E. Butler was a Catholic, his choice of Guy Fawkes Day may have been mischievous, and helped to provoke a major political crisis. He was farewelled by the bench and Bar in Sydney on 26 September and went on circuit to Goulburn. He received many addresses from the magistrates and other citizens in the towns and a silver tea service from the solicitors of the Supreme Court. Wined and dined by the Victorian Bar on 14 November he praised the appointment of Martin as his successor, and claimed that 'had it not been for the fact that a gentleman was appointed to the office of judge of the Supreme Court of New South Wales from political motives purely', he might have been chief justice for the next ten years. Sir Roger Therry commented in 1874 that Stephen's 'acknowledgment that he was put to flight from the bench by that fellow Hargrave was an humiliating one — & his opinion as to Butler's right to the Judgeship was characteristic of his imprudence in not always saying the right thing at the right time'.
The Judges' Salaries Act of 1857 had reduced the scale of pensions for judges after fifteen years service and deprived the chief justice of his patronage in Supreme Court appointments. When Stephen had contemplated retiring in 1871 he asked the Martin government in vain for a pension equal to his salary; he pointed out that had he retired in 1854 as entitled to do, his pension would have been £1610 instead of £1400 and he had thereby saved the colony over £34,000. For a decade he badgered successive governments for increased salaries and pensions for judges. He owned to Thomson 'how pained I was at finding it my duty to accept the moneys raised by public subscription, — not for some public purpose, in memory of me, but for my wife & her daughters … I have never lived on my salary. — I have expended thousands of pounds in the Colony above'. After the failure of the Parkes government to carry a gratuity of £7000 in 1874, nothing was done in 1875-78 despite the support of the governor. In 1879 he was voted £1140, being the £600 of salary he had been deprived of in 1860 and £540 interest. Acting governor when it was carried, he explained his reasons to the Colonial Office for assenting to a grant to himself. In 1883 the Stuart ministry carried the Retired Judges' Pensions Act whereby his pension in future would be calculated on his retiring salary of £2600.
Active in retirement, Stephen was a member of the Council of Education in 1873-80, was nominated to the Legislative Council in 1875 and that year appointed lieutenant-governor; he was acting governor from 19 March to 4 August 1879, from 9 November to 12 December 1885 and from 3 November 1890 to 5 January 1891. A fellow of the Senate of the University of Sydney in 1878-87, he was an enthusiastic trustee of the National Art Gallery of New South Wales from 1876, a trustee of Hyde, Phillip and Cook parks from 1878 and crown trustee of the Australian Museum in 1880-89. He was responsible for many improvements to Hyde Park (he lived opposite it for many years), and was quick to complain of encroachments by the Sydney Municipal Council. He was also a vice president of the 1878 Paris Universal Exhibition and 1879 Sydney International Exhibition commissions, and president of the New South Wales commission for the 1886 Colonial and Indian Exhibition in London.
In 1870 Stephen had resigned from the council of St Paul's College with regret; he told the warden that because of circumstances connected with the administration of Church affairs in this diocese 'I cannot any longer identify myself with any Church Institution or Society whatsoever'. In the 1870s he carried on most of his good works and in addition was chairman in 1873 of the Captain Cook Statue Committee, president of the New South Wales Academy of Art from 1873, the Civil Service Building Society in 1875-82, the Society for the Prevention of Cruelty to Animals, the City Night Refuge and Soup Kitchen, the Charity Organization Society and the Industrial Blind Institution and a life director of the (Royal) Prince Alfred Hospital. In the 1880s he quit some organizations but joined the Primrose League. He was especially interested in the Industrial Blind Institution and was often called on for help by people in distress.
Stephen and his wife campaigned for early closing; he went on circuit to Grafton in 1875 as acting judge, took endless trouble to discover whom Port Jackson was named after, spoke at meetings for famine relief and sent the Colonial Office unsolicited advice on legal aspects of imperial legislation such as the Mutiny Act, the Fugitive Offenders Acts and guano licences. He also wrote many letters to the Sydney Morning Herald, often under known pseudonyms such as 'Respublica', 'Justitia' and 'Nominus Umbra'.
Stephen maintained his interest in the temperance movement although not a teetotaller himself, believing that strong drink was responsible for much crime. In 1870 he published as a pamphlet his Address on Intemperance and the Licensing System. He had given evidence on the subject before the Legislative Council select committee on intemperance in 1854 and the Legislative Assembly's select committee on the Sunday sale of liquors prevention bill in 1878. Unlike his contemporaries he recognized drunkenness as a disease which affected all classes of the community as early as 1854. In 1886 in evidence to the royal commission on the excessive use of intoxicating drink, he was explicit about the evils that wives suffered from drunken husbands.
In the Legislative Council Stephen introduced eighteen bills, some of them repeatedly, and many connected with law reform, of which four were enacted. He failed four times with his animals protection bill and twice with his medical bill, which had provisions against charlatans and sought a medical council to decide who was qualified to practise. In the 1879-80 clash with the assembly he played a conciliatory role and vainly sought to change the Constitution Act by removing the council's power to amend money bills. He improved legislation that came up from the assembly, acted as unofficial parliamentary draftsman for many private members' bills and served on sundry standing and select committees. He published many pamphlets, including speeches he had made in the council. His most important legal work was the Criminal Law Manual, Comprising the Criminal Law Amendment Act of 1883 published with Alexander Oliver in 1883. In 1879 when called on to act as governor, Stephen failed to convince Parkes that it was unnecessary to resign from the council, and claimed that he would prefer to resign 'that barren honour' if necessary, as 'the seat in the Legislature, employing my mind, on matters familiar to me, affords me much pleasure — and (pardon the conceit) moreover is of service to the country'. On this occasion his term as acting governor was shadowed by his exercise of the prerogative of mercy in two rape cases. Advised by the Executive Council to allow the law to take its course, he was inundated with petitions for mercy and deputations and abused in the assembly, while 'monster meetings' took place in Sydney. After much agonizing he reprieved two of the condemned men.
Despite Stephen's earlier protests against David Buchanan's successful efforts to extend to women the right of divorce for simple adultery, in February 1886 he moved the first reading of a bill extending the grounds of divorce to cover desertion, habitual drunkenness, imprisonment for at least seven years and assault on the petitioner. He deliberately excluded incurable insanity as an act of God. Carried in the next session the Divorce Extension Act was refused the royal assent. It provoked violent controversy both within and without parliament. When Stephen reintroduced the bill every session until 1890 it encountered filibusters, count-outs and adjournments and so lapsed. Exasperated, he failed in 1889 to carry a bill to prevent the lapsing of bills through prorogation.
Stephen wrote nine pamphlets defending divorce extension, some reprinted from his letters to the Sydney Morning Herald. The most important was The Law of Divorce: (a Reply to Mr. Gladstone) (Sydney, 1891), reprinted from the London Contemporary Review (June, 1891); it cost him 'a world of trouble' to write as it required 'great care & accuracy'. Among the authorities he corresponded with on the question were Lord Carnarvon, Lord Hannen, president of the English Divorce Court, Rev. Samuel Dike in North America and D. Dudley Field, a noted New York law reformer. In 1890 the bill was carried in the council and Stephen, who was acting governor, provoked strong criticism by sending a message of thanks to his supporters from Government House. The Divorce Amendment and Extension Act was carried in the session of 1891-92; it received the royal assent on 6 August 1892. Only Stephen, with his unique prestige in the colony, could have carried such a radical measure in the conservative council.
In 1888 Stephen had caused a flurry when he had resolutions passed in the council to change the name of the colony of New South Wales to Australia. He told Parkes that if the neighbouring colonies objected he would 'adopt the East or Eastern addition'. In 1890 he introduced a labourers' protection bill to protect non-union workers, exchanged unfriendly letters with Admiral Lord Charles Scott over precedence while acting governor, and in October offered himself as a mediator between the Trades and Labor Council and the New South Wales Employers' Union. With great regret in February 1891 he declined renomination to the council because of increasing fragility and resigned as lieutenant-governor on 27 April. Created a C.B. in 1862, K.C.M.G. in 1874, G.C.M.G. in 1884, he was appointed Australia's second privy councillor in 1893.
Handsome, sprightly and joyous, with wit and charm, and 'the family perception of the ridiculous and humorous side of things', Stephen greatly enjoyed social occasions all his life. In 1866 he wrote to Cowper suggesting the postponement of a ministerial trip to Bowenfels as 'a Ball is (I have just heard) to be given by Mrs Knox on Friday'. He played the flute, frequented the theatre, dined with the Shakespeare Club and entertained most visiting dignitaries. On terms of warm friendship with the governors and their families, leading colonial families, scholars such as Thomas Woolley and Charles Badham and younger colleagues such as (Sir) Frederick Darley and (Sir) Edmund Barton, he was probably closest to Sir William Manning. Stephen was no snob: above anything he loved the company of Parkes, Martin and Dalley. In 1877 he had bought a block of virgin bush adjoining Martin's Numantia in the Blue Mountains, where he built a rude wooden cottage, Alphington. 'In that valley, or at that classical retreat, I have with those men enjoyed many a pleasant intellectual and festive hour'. He went there most weekends until he found the expense too great and sold it in 1882 for £3800. He also carried on a lifelong correspondence with his godson Leslie Stephen and his other English relations. He started to write his 'Jottings from Memory', enthusiastically swopped his reminiscences with Parkes and philosophized with him over old age. In 1893 he wrote 'For many years past, I have never dared to rely on even a day's continuation of my life; and I never expected to live beyond my eightieth year'.
Stephen had faults: among them were 'his great failing in meddling in matters that did not concern him' observed by Therry, and his 'overweening vanity' noted by 'Cassius' in the Freeman's Journal; he confessed to Parkes of having 'said too many things in the excitement of debate, & speaking in Court wh: I have found to be mistaken, & which I have regretted'. Yet Therry thought Stephen 'really was a clever pains-taking judge, & … an excellent public officer'. Martin appreciated 'the depths of his learning, the acuteness of his intellect, and his unfailing courtesy to members of the Bar'. Sir John Darvall discerned his kindness to the Bar, impartiality and incapability 'of nourishing the slightest feeling of resentment'. His decisions were often models of lucidity and show his versatility over the whole range of the law, but were also pragmatic, narrow in application and have not endured as precedents. As a judicial administrator of great ability, he made the law respected in New South Wales in the face of such obstacles as personal antipathies between the judges, antique procedure, excessive litigation and inadequate accommodation.
Stephen died of senile decay on 15 October 1894 in his house 24 College Street, Sydney, and was buried in St Jude's churchyard, Randwick. He was survived by two sons and a daughter of his first wife, and by three sons and four daughters of his second wife. His estate was sworn for probate at almost £12,000. His portrait, attributed to John Prescott Knight, R.A., is in the Supreme Court of New South Wales; marble busts by Simonetti are in the Art Gallery of New South Wales and the Legislative Council, and a bust by Allen Hutchinson is also in the Art Gallery.
Martha Rutledge, 'Stephen, Sir Alfred (1802–1894)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/stephen-sir-alfred-1291/text7645, published first in hardcopy 1976, accessed online 3 August 2015.
This article was first published in hardcopy in Australian Dictionary of Biography, Volume 6, (MUP), 1976