The Times/1932/Obituary/Sir Herbert Stephen

Sir Herbert Stephen
an eminent legal authority

The news of the death of Sir Herbert Stephen, Clerk of Assize on the Northern Circuit from 1889 to 1927, which we announced on another page to-day, will be received with great regret, especially by readers of The Times, who for many years have enjoyed his contributions to our correspondence columns upon legal and other topics of general interest. For logical thinking and lucid expression Herbert Stephen was probably unsurpassed as a newspaper controversialist, and his almost faultless command of English diction made his letters a delight, even if they provoked, as they often did, profound disagreement on the part of the reader with the views they expressed.

Herbert Stephen came from a family pre-eminent for its intellectual qualities, whose members have for a century and half played prominent parts in literature, law, and the public service. His great-grandfather, James (born in 1758), was the associate of Wilberforce in slave emancipation and one of the founders of the "Clapham Sect"; a great-uncle, Henry John, was the author of the famous "Commentaries on the Laws of England," still one of the students' textbooks most in use; his grandfather, Sir James Stephen, was Under Secretary for the Colonies, and was even better known as the author of "Essays in Ecclesiastical Biography" and other works of high literary merit; his father was Sir James Fitzjames Stephen the eminent Judge and legal and philosophical writer; his uncle was Sir Leslie Stephen, the first editor of the "Dictionary of National Biography"; one of his brothers (who succeeds him in the baronetcy) is Sir Harry Stephen, formerly a Judge of the Hight Court of Calcutta; the other was J. K. Stephen, ("J. K. S."), whose premature death cut short a brilliant literary career; and a sister Katherine, was for many years Principal of Newnham.

The Northern Circuit

Herbert, who was the Judge's eldest son, was born on June 25, 1857, and was educated at Rugby and Trinity College, Cambridge, where he took his LL.M. He was called to the Bar by the Inner Temple in 1881, reading with Baugh Allen, one of the last, if not the very last, of the Special Pleaders, and he was also one of the many brilliant pupils of Gorell Barnes, afterwards Lord Gorell He joined the Northern Circuit, where, with his name and pronounced ability, it might been supposed that a substantial practice awaited him, but this probability was never put to the test as in 1889 he was appointed Clerk of the Assize for the circuit, and his work in that capacity, with his literary and other interests, henceforth fully absorbed his life.

In the course of time he came to recognized as one of the leading authorities upon criminal law and practice, and it was an open secret that he was the trusted adviser of the Bench to a remarkable degree, and especially of new Judges. In conjunction with his brother, Sir Harry Stephen, he re-edited several times his father's famous works, "A Digest of the Criminal Law" and A Digest of the Law of Evidence"; and he also wrote "The Law Relating to Malicious Prosecution; A Digest of the Law of Criminal Procedure in Indictable Offences," "Prisoners on Oath, a book upon County Council Law, and a great number of articles in magazines and newspapers bearing upon the subject of criminal law.

But to the public at large the name of Herbert Stephen was best known through the letters which at short intervals have for 30 years or more appeared in The Times. They ranged over many subjects of controversy:"The Ethics of Betting," in which his chief opponent was the late Bishop Percival; "Prisoners on Oath" (a principle to which he was opposed); "Criminal Appeal" (which he favoured); "Crime and Insanity"; "The Age of Consent" (in which he pleaded for balanced judgment); "The League of Nations" (which , after the Italian bombardment of Corfu, he subjected to a pitiful analysis); and many others too numerous to recall.

Controversial powers

As an enemy of loose thinking Stephen was unequalled as a controversialist, He always knew his facts; he was never rude; but his logic was merciless, and he never shrank from its consequences. In politics he was in theory at least a reactionary Tory; in Church matters a through-going Erastian with a good deal of his family's interest in religious matters, one of the odd manifestations of which was displayed in a sweepstake that he always promoted with his friends whenever there as an election to the papal See. His sense of justice was profound and if favoured a drastic administration of the criminal law with which modern sentiment is not generally in accord, at the same time it should be emphasized that he always leant towards giving a prisoner every chance, and it was this feeling that prompted his strong opposition to allowing prisoners to enter the witness-box, for feat that it would operate to their disadvantage.

In his early days Stephen did a good deal of journalism. He wrote much for the old Saturday Review and for Henley in the Scots (afterwards National) Observer. He was also a large contributor of legal biographies to the "D.N.B." His services were frequently employed on committees concerned generally with criminal practice, those on insanity in its relation to crime, and women jurors being among the more important.

Though strangers sometimes found Stephen's rather stiff and solemn matter disconcerting, his friends delighted in the whimsical and unexpected wit, and the real kindness of heart that lay behind it; and, given the right society, he was a most amusing companion from whom something unexpected could always be drawn, In his latter years racing—of which he had a wide knowledge and bridge at the Savile Club (of which he had been a member for over half a century and whose history he wrote) absorbed much of his leisure, when not on circuit. At the Athenaeum he was until a few years before his death, also a well-known figure, and smokers there own a debt for his persistent and successful efforts to extend their privileges.

He married in 1927 his cousin, Mary Hermione, daughter of the late Sir Henry Stewart Cunningham, at one time Judge of the High Court of Calcutta and also a well known as a writer.