Sidney Stephen was born at Somerleage, Somerset, England, in 1797. He was a son of John Stephen, puisne Judge at St. Kitts in the West Indies, and later a member of the New South Wales judiciary and acting Chief Justice. Stephen was born to the law almost to the point of having been swaddled in a stuff gown. His father was a Judge and he was cousin to Sir James Stephen, Under-Secretary for the Colonies, of whom it was said in the early decades of the nineteenth century that “he literally ruled the Colonial empire” (including New Zealand). Sidney Stephen was also an uncle of Sir James Fitzjames Stephen (1829–94), Justice of the Queen's Bench Division, who is credited with laying the foundations for the codification of the English criminal law, effected by the Criminal Code Act of 1893. Sidney Stephen's brother, Sir Alfred Stephen, was Attorney-General of Van Diemen's Land (Tasmania) and, later, Chief Justice of New South Wales.
Stephen was educated at Honiton and Charter-house, and was admitted to Lincoln's Inn in 1816. After being called to the Bar in 1818, he joined his family in the West Indies, where he married Miss Margaret Adlam, daughter of a St. Kitts merchant. When his father was appointed a Judge in New South Wales, Sidney Stephen moved to Australia with him. The young barrister of Lincoln's Inn found early in his career that he had to fight a legal monopoly in Sydney which he described on one of his appearances in Court as “exclusive, unjust, ridiculous, anti-progressive and un-English”. He virtually broke the monopoly and won a reputation and a practice. In 1838 he went to Hobart Town, where his brother Alfred was Attorney-General. There he found himself embroiled in a feud between his brother and Mr Justice Montague, of the Supreme Court. Family loyalty soon had him deeply involved. Stephen always believed what he said, and what he said he stood by, too often to the complete disregard of the point of view of others. The inevitable happened. He was confronted with a rule of contempt and his professional integrity was impeached by Montague. The outcome was a disbarment Unable to practise in Van Diemen's Land, and fearful of the tardy processes of his appeal to the Home Government, Stephen, with a wife and seven children, turned squatter in Victoria. Two years later he obtained provisional admission to the Victorian Bar. Here he made an instant impression. Affecting an urbanity and fine courtesy in striking contrast to his normal brusqueness of habit, he did well in Melbourne and strengthened his position greatly by his vigorous support of the anti-transportation movement. On 29 March 1847, five years after his departure from Hobart Town, he learned that the Privy Council had reversed the order of the Tasmanian Supreme Court and had declared that “Mr Sidney Stephen's character and professional conduct are unimpeached”. By way of compensation for personal and professional loss resulting from his disbarment, an appeal was made to the Colonial Office on Stephen's behalf for suitable employment. Earl Grey in London suggested a judgeship in Port Pirie, South Australia, but as there was no vacancy at the time he had to wait until 1850 when he was appointed by Royal Warrant to be a puisne Judge in New Zealand.
On arrival in New Zealand he was given the Southern Judicial District with headquarters at Dunedin. Otago had only the faintest academic interest in the establishment of its first Supreme Court, but even that disappeared when the Scottish Free Church settlers learnt that the luxury was to cost £800 a year — a heavy drain on the meagre provincial exchequer. They protested violently and with good reason, for in the whole of Stephen's term of 18 months at Dunedin, no prisoner was charged before him and no civil plaint was heard. The only case set down for hearing was one of conspiracy of which the learned Judge himself was the alleged victim. It arose from the linking of Stephen's name with a local scandal. The Judge took Court action, and since in the meantime he had assaulted one of his detractors, he appeared before the Magistrates in the dual role of plaintiff and defendant. Both judgments went in his favour by the casting vote of the chairman of a large bench of Justices, and his antagonists were committed to the Supreme Court for trial on charges of criminal libel and conspiracy. As he left the Court, Stephen was challenged to a duel by a fiery local doctor, but he was bound over to keep the peace. The conspiracy trial was never held for the reason that when the fixture date came round, there was no Court, no Judge, and no accuser. Stephen had removed to Wellington, and his exit was marked by a notice in the New Zealand Gazette abolishing the Supreme Court in Otago. Seven years were to pass before it was reopened by Mr Justice H. B. Gresson. In Wellington, following Mr Justice Chapman's departure for Tasmania, Stephen was resident Judge for the newly created Southern District of New Zealand, which comprised the whole of the colony with the exception of the Auckland and Taranaki provinces. He presided over the first sitting of the Supreme Court in Canterbury, at Lyttelton, early in 1852, and three years later moved to Auckland in place of the Chief Justice, Sir William Martin, whose health had broken down. He died in Auckland on 13 January 1858, after a protracted illness. In his translation to the northern centre, Stephen saw promise of succeeding Martin as Chief Justice, and expressed the deepest disappointment and bitterness at the eventual choice for the position in 1857 of “some obscure English lawyer called Arney”. His death followed not long after that appointment, and the Wellington Independent in an obituary notice declared: “It may not, as some assert, have broken his heart, but we believe that a profound sense of Government injustice hurried him to his grave”.
Stephen had a clear, vigorous, and powerful mind, and was a very good lawyer. The general soundness of his judgments was seldom in question, and in collaboration with Martin, C.J., he did much to lay the foundations of Supreme Court procedure of the time. He was a man of substantial pride, setting a great value upon himself, and consequently was no stranger to self-pity. He could be both quarrelsome and vindictive, but was also the possessor of more than average charm. He had neither the qualities nor defects proper to genius, and his downright and almost over-conscientious definiteness of thought not infrequently led him into error, though this was generally in his personal circumstances rather than in any professional capacity. But above all he was always accessible and generous, with a well-developed sense of the rights and needs of the underprivileged, who were a considerable company in his day.
by Ronald Jones, Journalist and Script Writer, New Zealand Broadcasting Corporation, Wellington.
- Chapman Letters (MSS), Turnbull Library
- Wellington Independent, 24 Feb 1858
- New Zealand Law Journal, 5 Aug 1958
- History of Otago, McLintock, A. H. (1949).