The New Zealand Judiciary, the roll of which after a century and a quarter still carries fewer than 70 names, dates from 10 January 1842 when the first Judge of the Supreme Court in the infant colony took the oaths of office. He was William Martin, M.A., of Cambridge, and the Inner Temple, who had been appointed by the Colonial Office in London to be Chief Justice of New Zealand. The Supreme Court of New Zealand was barely three weeks old, having been established by Ordinance (No. 1) at the second session of the new Legislative Council. Up to that time New Zealand law had been the law of the Supreme Court of New South Wales, and justice had been administered by the holders of Commissions of the Peace. Of this period before the Supreme Court was ready to function, Sir John Logan Campbell wrote in Poenamo, “Very primitive were our ways. We had parsons without churches and magistrates without Courts; but we scrambled through our divinity and law somehow”. New Zealand's white population at this time was approximately 10,000, with about six times as many Maoris.
Ordinance (No. 1), dated 22 December 1841, marked the end of the authority of the Supreme Court of New South Wales in New Zealand. Clause 2 provided that the new Court should “have jurisdiction in all cases as fully as Her Majesty's Courts of Queen's Bench, Common Pleas and Exchequer at Westminster” and “be a Court of Oyer and Terminer and Gaol Delivery, and Assize and Nisi Prius.” Other clauses included equity, probate, and lunacy. (All have been repeated in enactments conferring jurisdiction ever since, and form part of the present Judicature Act.) The legal connection with New South Wales was completely severed in March 1842 when all ordinances of that territory in force in New Zealand were repealed and declared to be of “no force or effect whatever in the Colony”. Rules of practice for the new Court came next. These were drafted by Martin and William Swainson, the colony's second Attorney-General, who had travelled out to New Zealand together – “English lawyers, imbued with English spirit, and eager to relieve the Colony from the baneful influence of a convict code”, as Swainson put it in later years.
On 26 December 1843 Henry Samuel Chapman, of the Middle Temple, took office as a second Judge and, in January of the following year, “Rules and Forms Touching the Practice of the Supreme Court of New Zealand, Settled and Approved by William Martin C.J. and H. S. Chapman J.” were approved and gazetted. These were added to, with the effect of statute, on 2 May 1844 and 12 May 1845.
Meanwhile, the inaugural sitting of the Supreme Court had been held by the Chief Justice in Auckland in the third week of February 1842, the first case called being a murder charge against a young Maori chieftain, Maketu, who was subsequently hanged.
Provision for the appointment of further Judges was made in a new Supreme Court Ordinance (Session III, No. 1) in January 1844, such Judges as were appointed to hold office only during Her Majesty's pleasure. This arrangement, which could mean that the judiciary in certain circumstances might be subject to political influence, was hardly satisfactory to the Judges, but it persisted throughout the whole of the term of the two then Judges, and was not repealed until the Supreme Court Judges Act 1858, which ensured the independence of the judiciary by providing that Judges would hold office during good conduct instead of during the Queen's pleasure.
In those early days, as Mr Justice Chapman has recorded, there was “no appeal or writ of error from one Judge to the other – for that would be inconsistent with the spirit of English law”. A Full Court must await the appointment of another Judge. But in 1846, a quaint “Court of Appeals” was established. It comprised the Governor and the Executive Council, but with the exclusion of the only lawyer on the Council, the Attorney-General. Its function was to hear appeals from the Supreme Court, “only for error of law apparent in the record”: Supreme Court Amendment Ordinance (Session VII, No. 3). It is doubtful whether the “Court” ever operated, as its jurisdiction was always suspect, and it is clear from one appeal at least that the Attorney-General preferred the Privy Council to his lay colleagues. (See The Queen v. Clarke (1851) N.Z.P.C.C. 516.)