Granted that a fierce light of criticism beat upon all who held judicial office, there were apparently some strange Magistrates in the days before laymen were excluded from the Bench. It was a heartless, critical, unforgiving age. The minutest of errors by these instruments of justice seems to have been viewed through a magnifying glass of what Sam Weller used to call “hextra power”. And no quarter was given. “Blundering ignorance, bad taste, imbecility, partiality, and peculation” were only some of the choice flowers of speech that were scattered benigno cornu by the newspapers. The extent to which the law and the litigant suffered represents one of the less admirable features of the law in the early days of New Zealand, and the reality of the situation is emphasised by the attacks made on the Courts at a time when the Bench displayed an insatiable predilection for the committal of a wide variety of editors and critics for contempt. That these assaults had a solid basis of truth must be inferred from the fact that the Legislature in the seventies was put to a succession of devices, short of a clean sweep of the magistracy, in an effort to correct the position. The whole trouble was that, even in an era of colonial patronage and political privilege, there was an excess of exceptionable elevations of untried appointees unblessed with legal knowledge or experience, unproved of character, and in some cases lacking in anything more than the most elementary education.

The system in operation at the time entirely ignored a principle fundamental to English law – that legal appointments belonged, as of right, to the legal profession, and that the appointment of laymen to any legal office whatever was a violation of the established rights of the profession. The contemporary public, litigious or otherwise, no less than the whole body of legal practitioners, may indeed congratulate themselves on the liberal and well-reasoned character of the amendments that have been effected by successive enactments of the present century. Of all the changes wrought in the constitution and procedure of Magistrates' Courts, none can have exerted a stronger influence than the exclusion of the layman from the Bench, except, of course, in the case of the modern Justice of the Peace. But statutory insistence on professional qualifications in all Magistrates was a long time arriving. In fact, it was less than half a century ago, within the memory of many present-day practitioners, that the Legislature accepted the principle that the law should be left to the lawyers in the same way that plumbing was left to the plumber.

Resident Magistrates' Courts were first set up in 1846. Their circumscribed jurisdiction was amended and revised in varying degrees from time to time until the enactment of the Resident Magistrates Act of 1867, an amending and consolidating measure which repealed all previous ordinances and statutes relating to such tribunals. The framework of the 1867 Act, even though it was repealed in 1893, is still discernible in contemporary legislation represented by the Magistrates' Courts Act of 1947.

All the early statutes were distinguished from the current law on the subject by the inclusion of three significant words “not necessarily qualified”. In the extreme, the Resident Magistrate required no law, and no official attempt was made to groom him for his office, or encourage him to fit himself for it. Section 4 of the Resident Magistrates Act of 1867 opened the field to “all fit persons, being Justices of the Peace who shall be, and be called, Resident Magistrates”. Twenty-six years later, section 13 of the Magistrates' Courts Act of 1893 merely provided that appointees should be “fit and proper persons” and that they should be called Stipendiary Magistrates. Section 15 of the same Act, however, made a distinction in that no person could be appointed to exercise the extended jurisdiction provided for under the Act who was not a barrister or solicitor, or who had not “for a period of five years at the least been continuously and in a competent manner exercising the extended jurisdiction of the Courts”.