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.

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'.

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.

Funeral of John Stephen, Esq
Published in The Australian (Sydney, NSW, 1824–1848) it was an English language newspaper published in Sydney, New South Wales, Australia. It first appeared in 1824 and was the second newspaper to be printed on mainland Australia after The Sydney Gazette (1803).

Brother John Stephens, was originally buried at Devonshire Street Cemetery. The Stephen Family plot was relocated to Rookwood Necropolis before Devonshire Street Cemetery was redeveloped into Central Railway Station.


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.

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Fraternally - Bro.L Salvo
April 2020