Obituaries Australia

Sir Alfred Stephen, by Samuel Calvert, 1873

State Library of Victoria, IAN31/12/73/220

Sir Alfred Stephen's long and honourable life came to a peaceful close yesterday morning. All that the love of children and the affection of friends could suggest was done to prolong the valued career, but the end came at 9 o'clock. In his last moments Sir Alfred was surrounded by members of his family.

Sir Alfred had been fast failing for several weeks, but his intellect was bright and clear to the last, and even at the time of dissolution he was in a peaceful and happy frame of mind.

Dr Scot-Skirving, who had been attending Sir Alfred for many years, says he had always been a remarkably healthy man - hale, clear headed, and active. He had not been in the habit of attending public meetings for over 12 months past, and for six months he had kept to his house. During the last five or six months it was seen that advancing age was tolling upon him, and that he was gradually becoming weaker. Still he was always cheerful, and busied himself with writing and with his books. Although very feeble he could not keep to his bedroom, but would come down to the drawing-room during the day. Thus he had never been absolutely confined to his bed. Even on the Sunday - the day before he died - he was in the drawing-room. Here, when he was tired, he used to rest on the sofa. Dr Scot Skirving states that it was well known for some weeks past that the end was approaching, but Sir Alfred remained thoroughly healthy to the last. He simply passed away peacefully and painlessly.

Immediately upon hearing of the death of Sir Alfred Stephen, the Premier, Mr George H. Reid, wrote to the representative of the family in Sydney offering a public funeral as a compliment from the people of the colony, which the career of Sir Alfred Stephen eminently deserved, but finding that the members of the family were averse to a public funeral, the matter was not pressed. The funeral will in consequence be private, and it is the special wish of the family, and it was also the wish of Sir Alfred Stephen, that the custom of sending wreaths should not be observed in connection with his funeral.

His Excellency the Governor has written to the family of Sir Alfred Stephen offering his sincere condolences on the loss of so eminent a citizen.

A Government Gazette extraordinary, with a heavy mourning border, was issued yesterday afternoon, as follows -"Chief Secretary's Office, Sydney, 15th October, 1894. His Excellency the Governor, with feelings of sorrow, announces to the colony the death this morning of the Right Honourable Sir Alfred Stephen, P.C., G.C.M.G., C.B. His Excellency would have desired to mark officially the long and valuable services of so distinguished a public servant by directing the closing of the Government offices, but as the funeral, at the desire of the family, is to be a private one, his Excellency can only place on record the expression of his deep regret at the death of so eminent a personage, and invites all public officers to attend who desire to be present at the funeral, which leaves College Street on Wednesday at 10 o'clock a.m. His Excellency also directs that the flags on the forts and public buildings be hoisted half-mast high. By his Excellency's command, James N. Brunker, Chief Secretary."

Mr Cecil Stephen is the representative of the family in Sydney, Mr Justice Stephen is at present away on circuit, and Mr Septimus Stephen is ill at Bowral.

The remains will be laid to rest in St Jude's cemetery at Randwick, whither the procession will start at 10 o'clock to-morrow morning.

Sir Alfred Stephen was the fourth son of Mr Justice Stephen, who for some years was a Judge of the Supreme Court of New South Wales, and who died in 1833. Born in the island of St Christopher, in the West Indies, on 20th August, 1802, the subject of our notice was sent at an early age to England, and placed in the London Charterhouse School, and at the Grammar School, Honiton, Devonshire, but at 13 years of age he accompanied his father, who was then Solicitor General for the Leeward Islands, back to the West Indies, and two years afterwards received an appointment of second lieutenant in a militia corps of Fusileers formed for the defence of St Christopher. His tastes, however, soon manifested themselves in the direction of the law, and returning to England he commenced to study for the Bar, first under Sir John Stephen and subsequently as a pupil of Sir James Stephen. He was called to the Bar at Lincoln's Inn in November, 1823, and commenced practising immediately as an Equity draughtsman. The following year he married the daughter of Matthew Consett, a London merchant, and not long afterwards, being attracted by the prospects of advancement and success offered in the Australian colonies, he and his wife embarked for Tasmania, and arrived there before the first year of their marriage had expired. At that period of Australian history, though, the colonies had a growing reputation in England, their actual condition was far different and far inferior to what it became when official oppression and blundering were at an end, and the blessings of liberal institutions and popular government appeared in the rapidly increasing happiness and progress of the several communities. New South Wales was naturally ahead of those younger colonies which were in the position of her offspring, but even her condition was far from that of a properly-governed State, and Tasmania was perhaps in a worse plight than any. Yet that colony offered at the time a wide field for the energies of an able and upright lawyer, and seeing that the country was labouring under a system of government which produced occasions when colonists doubted whether justice was to be had in the land, and which in the almost absolute power of the Governor and his immediate associates was constantly giving rise to irritation, discontent, and public injury, the arrival from England, to practise in the law, of one who afterwards became known throughout Australia for his great abilities as a lawyer, and his conscientious and honourable career as a Judge, appears at this time to have been an event of much more than ordinary importance. Mr Stephen landed in Tasmania in April, 1825, while Colonel Arthur was Governor of the colony, and his first appointment was that of Crown Solicitor and Solicitor-General. The year 1825 is remarkable in Tasmanian history as that in which Lieutenant-General Darling, the Governor of New South Wales, declared Tasmania to be an independent colony, and the spirit of progress becoming more pronounced among the people, there was at once a larger scope for the talents of able men. Occupying the position he did in the community, Mr Stephen could exercise considerable influence for good or evil, and there are to be found in Tasmanian records several instances of that influence being used in the right direction. One of his first efforts at the colonial Bar was directed towards the abolition of a practice then, if not now, recognised by the Bar in England of a barrister receiving fees from one of the parties to an action and afterwards acting against him, and though the contest which this effort provoked gave rise to personalities and considerable bitterness of feeling, it did some good towards purifying the Bar to a course of proceeding which must be considered as highly objectionable, however much it might have been in accordance with professional habit. The main question at the time was whether a barrister holding a general retainer could, without license, advise the opposite party, or whether he could draw pleas for both. Mr Stephen considered the practice to be dishonourable and dangerous, and if allowed to continue it "would compel him to relinquish the profession, or seek an honourable pittance elsewhere." In 1829 the attention of Mr Stephen was led to the land titles of the colonies, and after careful examination he discovered a fatal error in all of them, the Royal instructions to the Governor having authorised his Excellency to grant lands in the name of the King, and the Governor having issued the grants in his own name instead of in that of his Sovereign. It was held by Sir Stephen and by the Judges that in every case, whether it were that of a subject or of the Sovereign, the conveyance must be made in the name of the owner of the lands, and that the grants which had been made were therefore utterly void. This decision led to much confusion, and also to injustice, but it was admitted on all sides that the decision was a right one. The defect was removed in New South Wales by special legislation, but in Tasmania every grant was subjected to an examination. The Secretary of State, being consulted upon the matter, gave authority to Colonel Arthur to amend the form of grant, and upon recommendations made by Mr Stephen, adopted by the Governor, and approved by the Secretary of State, the error in the titles was removed as far as it possibly could be.

In 1832 Mr. Stephen left the colony for England, and whilst on his way to the home country was gazetted Attorney-General of Tasmania. The following year he returned to the colony, and at once entered on the duties of his new office, which he retained until the year 1838, when he resigned his appointment, partly through a quarrel with Judge Montagu, one of the Judges of the Tasmanian Bench, who had assailed him with great abuse in open court. As a law officer of the Crown, Mr Stephen was said to display great legislative skill, and to exhibit in a considerable degree qualities which justified his subsequent elevation to a Judgeship in New South Wales. He was appointed to a vacant position on the Bench of the Supreme Court of this colony in 1839, but before leaving Tasmania he interested himself very much in an effort that was made about this time to secure for the colony the blessings of British institutions. With that object he promoted a petition to the Crown, and though the movement was one remarkable for the unanimity of the colonists in supporting it, and for the favourable countenance which Governor Sir John Franklin, who had succeeded Colonel Arthur, gave to it, the prayer of the people was not at that time successful in obtaining what they desired. It assisted, however, to pave the way for concessions to popular wishes at subsequent periods, and therefore was not without its value. Mr Stephen come to Sydney shortly after his appointment as Judge, bringing with him his second wife, the late Lady Stephen, who was married to him in 1838, and is a daughter of the late Rev W. Bedford, D.D., senior chaplain of Tasmania. From 1839 until 1844 Mr Justice Stephen sat in the Supreme Court of New South Wales as one of the Puisne Judges, and on the death of Sir James Dowling he was appointed Chief Justice of the colony. The appointment gave general satisfaction. The office was claimed, in accordance with English practice, by Mr Plunkett, then Attorney-General, but the claim having been referred by the Governor to the Executive Council it was disallowed, and that course taken which was afterwards followed by the Parkes Government in appointing Sir James Martin to the Chief Justiceship on the retirement of Sir Alfred Stephen, giving the office to the man believed to be best fitted for it. As the head of the Supreme Court in New South Wales Sir Alfred Stephen displayed an unremitting attention to his duties, extreme carefulness, sound judgment, and great ability. The intimate acquaintance with crime in all its forms which his position necessarily gave him and his utter detestation of crime gave to some of his sentences the appearance of severity, but no suspicion was ever raised of his impartiality or his justice, and throughout he upheld the honour and the dignity of his position.

The opening on 22nd May, 1856, of the Parliament which was called together under the new Constitution Act was an event of lasting importance to the colony, and the address of Sir Alfred Stephen as the first President of the now Legislative Council bears to-day the interest of an historical utterance. It is no less remarkable for a deep sensibility of the solemn nature of the duties which he had been called upon to perform than for an earnest desire to have the country governed constitutionally and well. Few persons could read it without feeling admiration for the sentiments it expresses. Addressing the House on an occasion, as he described it, "so new, in a great measure, to all its members, so remarkable as the commencement of an era in our history, of deep significance and interest, and so striking, as that of the inauguration of a political constitution the realisation of which, in whatever light it be regarded, is a most important national event," he said.

"For myself I have to solicit those who hear me, and are to share in the discharge of the duties which we have this day undertaken, that they will look with indulgence on the many deficiencies of which I am conscious. Placed in this chair, not to direct or control, but simply as primus inter pares, to assist in regulating the debates of the House, it will be obvious that I cannot hope for success without your ready support. It is and ever will be my earnest, my most anxious desire to at all times to shape my course in the high and honourable position for which I have been selected and in contributing to the legislation of the country as to be of use to my fellow-colonists, and finally to obtain your approval and that of my Sovereign and the community. In these efforts I know that not sincerity alone and singleness of purpose will be required, but ability, experience and sound judgment. The inattention of an hour, the incaution of a moment, might be fatal to them. But of one thing, gentlemen, you may be assured. He of whom I speak will ever remember - nor would those with whom he is associated permit him to forget - that in becoming President of the Council he did not cease to be a Judge. And it is assuredly not necessary to the duties of a legislator nor naturally incident to the full and most efficient discharge of them to share in any degree in the disputes of partisanship or descend to the contests of political warfare. Those duties, in my estimation of them, and, I am persuaded, in your own, are in sacredness of character scarcely inferior to any, and by devoting ourselves to them in an enlightened and unselfish spirit, with the aid of all that learning and reflection can bring to the task, we shall establish for ourselves a claim to the respect, if not the gratitude of the country. Let not the prediction be thought visionary, that within these walls no sinister object, no unworthy motive, will ever be found to intrude, that here every measure intended to benefit the commonwealth in which we have so deep an interest, come from what quarter it may, will receive a calm and dispassionate consideration, that it will be discussed with ability and temper in the one only desire to elicit truth, that preconceived opinions brought to the test of sound reasoning will never impede or interfere with an honest conviction, and that our resolutions (guided by philosophy which shall not disdain the lessons of the past and directed by aspirations of which conscience shall approve), if liable to the errors which no care nor skill can at all times avoid, will in the main be found to promote largely the public welfare."

During the Earl of Belmore's term of office as Governor of New South Wales a commission of gentlemen learned in the law was appointed to suggest reforms in the civil and criminal jurisprudence of this country, and Sir Alfred Stephen, as Chief Justice, being at the head of the commission, devoted a considerable portion of his time to the inquiry. A large number of recommendations in the details of administration were made in the report of the commission, and a bill embodying many of the recommendations was drafted for the consideration of Parliament. It was supposed that, although the report did not advocate those sweeping changes which are never to be expected from professional guides, it would lead to important practical reforms, and especially remove some anomalies which are found to be extremely inconvenient.

At the swearing-in of Sir Alfred Stephen as Administrator of the Government on the occasion of the departure from the colony of the Earl of Belmore, on the 23rd February, 1872, the terms of the Governor's commission provided for the appointment of the Chief Justice to this position, or in case of his death, incapacity, or absence from the colony, the senior Judge for the time being wholly different from the change which was made after the claim preferred by his Honor Sir James Martin on the occasion of the visit of Sir Hercules Robinson to Fiji. Now, as our readers are aware, the duty of administering the Government in the absence or incapacity of the Governor falls upon the Lieutenant Governor or the President of the Legislative Council. Lord Belmore retired from office at a time when the state of politics was very unsettled, in the midst of a political crisis, and when the country was virtually without a Government. The vexed question of the Border Duties had placed the Martin-Robertson Government in a minority in Parliament, and an appeal to the people having led to the defeat of the Ministry - principally, however, because of a policy they had adopted with regard to a curtailment of the public expenditure - a new Administration became necessary, and upon Sir Alfred Stephen fell “the most delicate of all duties, the appointment of a new Cabinet.” We had occasion at the time to point out how no man had enjoyed a longer experience of colonial life or had acquired a higher reputation for judicial knowledge and integrity than Sir Alfred Stephen, and the confidence which was felt in his ability to deal with the difficulties of his new and important office was not misplaced. The course he took in sanctioning the raising of money for the ordinary expenses of the public service by the Government pledging the State to a contract, in which the Bank of New South Wales was authorised to pay money that had never been voted, was one which raised a strong protest from those who upheld the principle of the Constitution which places the public expenditure under the control of Parliament, but it was defended on a plea of necessity arising out of delay in Parliament in making proper provision for the payment of the Civil servants, and the sudden dissolution of the Assembly. Sir Alfred Stephen "obeyed what appeared to be the claims of humanity towards a large body of deserving men," but it was generally considered that he would have acted more in conformity with his position as representative of the Crown had he resisted instead of sanctioned the evasion of the law. He relinquished the duties of administrator on the arrival of Sir Hercules Robinson in June, 1872, and "took back to his hardly less important office the undiminished respect of the colony."

The following year he carried into effect a resolution which for some time previous had been pressing its claims upon his attention: he resigned his office of Chief Justice and retired from the Bench. Such an event could not but arrest public attention, and call forth an expression of opinion upon the services of a Judge who had been actively engaged in the duties of his office almost uninterruptedly for no less a period than 31 years. On the 26th September, the day upon which he delivered from the bench of the Supreme Court his valedictory address, both floor and gallery of the courtroom were crowded with members of the Bar, solicitors, and the general public - everyone taking the greatest interest in the proceedings. Upon the bench supporting Sir Alfred Stephen were their Honors Mr Justice Hargrave and Mr Justice Faucett, and the late Mr Justice Cheeke; and at the head of the gentlemen of the legal profession in the body of the court was the late Mr Edward Butler, then occupying the position of Attorney-General. The Chief Justice, much affected at these evidences of the high regard in which he was held by the community, spoke with some difficulty, but addressed the assembly in words which, as they form an interesting chapter in our legal history, are worth reproducing in full. He said -

"It is not merely in compliance with a time-honoured custom, but because of memories crowding thickly around me, and of feelings which I should endeavour in vain to repress, that after more than 34 years of service on this bench, sitting here for the last time, I address a few words of farewell to my colleagues and my brethren of the Bar, as well as to the officers of my court and the other members of the legal profession, from all of whom I have received during that long period so much attention and respect, and with whom I have for the most part been on such happy terms of intimacy. I took my seat as a Judge of this Court, after having held office in Tasmania as Solicitor and Attorney General for above 12 years, on the 7th day of May, 1839, and on the 6th November, 1841, I was appointed Chief Justice. No-one, therefore, who knows anything of the laborious nature, the anxieties, the sense of responsibility of the judicial office will feel surprised that in my 72nd year I seek the relief of comparative repose. Broken down by an accumulation of duties which in prudence ought not to have been undertaken, I was compelled in 1860 to ask for a year’s interval of absence, but with that exception, and the relaxation of two short trips to the sister colonies, I have known no cessation of work, and those whom I address will be aware that it has not been of the lightest character. In May, 1839, its amount was naturally not overwhelming, but the business of the Court, especially in suits and civil proceedings generally, has during the last 20 years enormously increased. At the time of my arrival the roll of barristers in Sydney comprised 20 names only - Mr Wentworth's at its head, Mr Ross Donnelly's the last on the list. On the solicitors' roll there were the names of not more than 52. In 1863 the Bar - those in actual practice, excluding those bearing office - numbered 44, - while the solicitors had increased to 137. In the present year their numbers are respectively 65 and 243, of whom above 100 reside in Sydney, the others, greatly to the advantage of the country, being spread over the vast districts of the interior. It is painful to me to remember that of the small band of practitioners first mentioned, four barristers and seven solicitors alone are now living. Of the Judges with whom I originally sat and those who next succeeded none now remain in the colony - the greater number have gone to their last rest, and of the profession whom I now address the far larger proportion have entered it - many of its members have been born - since my accession to office. Truly it is time for me to retire, and leave the field to younger men. Of my own career I have nothing to say: it must be judged by others. I ask no extenuation of my short-comings; I have no fear that anything will be set down concerning me in malice, but I would beg those who may be disposed to think lightly of the judicial office or its work to be assured of this one thing, that nothing but evil to the country can result from depreciating either. No object is or ought to be of higher moment, of greater interest, to any community than the integrity, the independence, and the learning of the Judges of the land, and, therefore, the preservation of their station from reproach and their characters from unthinking comment or undeserved obloquy. The Bar should command scarcely inferior considerations, for of them our Judges are made. I shall trespass on you, friends all, no more. It would not be possible for me to bid you farewell without deep emotion but that I part from you only to resume shortly our pleasant intercourse, although in relatively changed positions. I may not speak of many long years, for nature denies the expectation; but while I live I shall bear vividly in my memory the kindly - I might almost say the brotherly - feeling that has ever existed between us, and I trust, is I am sure, that it will to the last continue."

"At the conclusion of the address," said the newspaper report of the proceedings, "there was a spontaneous burst of sympathetic applause from all present," and Mr Justice Hargrave and Mr Butler expressed their sincere regret at Sir Alfred's resignation, their deep sense of the loss sustained by the profession and the public, and their fervent hope that the step which his Honor was taking would add many years of happiness to the well-earned and honoured tranquility of his declining years.

"Your brother Judges," said Mr Justice Hargrave, "alone carefully appreciate how laboriously and how successfully you have maintained the high reputation of our Supreme Court, not only in the most difficult cases before the Appellate Court of her Majesty's Privy Council, but also in all the ordinary judicial business of this Court during the long period of above 34 years. I would especially desire to thank you for the two great characteristics which seem to me to have especially distinguished your judicial career: first, the vigorous earnestness with which you have always brought your whole mental powers to bear upon the investigation of the real state of the law, upon every point in every case before us in Banco; and, secondly, the unhesitating courage with which you have always followed out your reasonings to their utmost legitimate conclusions. We would also add," he said in conclusion, "that we have constantly admired the singular faculty of methodical mental labour which has been so eminently distinctive of your judicial career."

After his retirement from the Bench Sir Alfred Stephen devoted a considerable portion of his time to the assistance of charitable movements and other organisations for the public good. In 1874 he had the rank of K.C.M.G. conferred upon him, and in the following year was made Lieutenant-Governor of the colony, the duties of which office he was subsequently called upon to fill during the time that elapsed between the departure of his Excellency Sir Hercules Robinson to assume the Governorship of New Zealand and the arrival here of his Excellency Lord Augustus Loftus. To enable him the better to perform the functions of Lieutenant Governor he resigned his seat in the Legislative Council, to which he was summoned the second time in March, 1875, but on surrendering the reins of government to Lord Augustus Loftus he was reappointed to the higher branch of the Legislature, and took an active part in the debates and business of that House during what was one of the most important periods of its career. For several years he was a member of the Council of Education, and did good service in assisting to administer wisely and well the beneficent provisions of our education system.

In 1885, during the interregnum which occurred between the departure of Lord Augustus Loftus and the arrival of Lord Carrington, Sir Alfred again acted as Lieutenant-Governor, and resigned his seat in the Legislative Council. When Lord Carrington left the colony on 1st November, 1890, Sir Alfred was once more sworn in as Lieutenant-Governor, and in consequence resigned his seat as a member of the Legislative Council. He filled this position until the arrival of Lord Jersey, in January, 1891. When relieved from Vice-regal duties, Sir Alfred did not, as on previous occasions, resume his seat in the Legislative Council. His increasing years rendered it necessary for him to abandon active political work, and consequently, since his last term of office as Lieutenant-Governor, he remained in comparative retirement.

In addition to the other honours already conferred upon him, Sir Alfred was in 1884 created a G.C.M.G. Among the many services which he has rendered to the nation it may be mentioned that in 1880 he was appointed President of the National Art Gallery, a position which he has filled with honour ever since. During his remarkable career he witnessed the administrations of 11 Governors, and helped in the foundation of four colonies. He is the father of 18 children, nine boys and nine girls; by two marriages, and has 66 grandchildren.

Perhaps the chief subject with which Sir Alfred Stephen's name will ever be associated is the Divorce law of the colony. For years he made the most strenuous efforts to bring about a reform in the direction of divorce extension, and the respect which his aid and experience commanded undoubtedly had great effect in awakening the popular mind to a sense of the evils wrought by the late system. Both from the Bench and by means of his pen, Sir Alfred pleaded powerfully the cause of oppressed womanhood, and several attempts were made to record his views on the Statute Book of the colony. His chief aim was to enable a wronged wife to obtain freedom when, by desertion, brutality, or habitual crime, all the real objects of marriage had been defeated. The law of the colony to-day is a standing testimony to the necessity for the change in Divorce law so strenuously advocated by the late knight, since the Act now in force embodies all the reforms which he urged.