When Governor Gipps was running through the long list of people who had complained about Judge Willis, he mentioned that eighteen magistrates had come forward with complaints about Willis’ behaviour. How did people get to be magistrates in Port Phillip in the early 1840s?
A bit of back-tracking first. The role of ‘magistrate’ has a long history. In England they have been a feature, in one guise or another, of the justice system for the past six centuries. Traditionally the gentry families of the countryside, almost as a matter of course, appropriated the role as their right within the village system of deference and moral responsibility that underpinned English rural life. The magistrate, who usually held unreported hearings in his own house, had wide latitude over many areas of life; magistrates knew the villagers (their families, their entitlements and their histories) and were known themselves (their families, their entitlements and their histories) by the village inhabitants.
In the early years of penal settlement in New South Wales and Van Diemens Land, there were very few free settlers and at first nearly all magistrates held other positions. As more free settlers arrived and took up large land grants, they were called upon to police the work and leisure of the convicts who worked on their properties. Have no illusions about this: the colony depended on the forced labour of convicts, and the efficiency of this dispersed, in effect privatized, system depended on the surveillance, assiduousness and authority of the magistrates.
The Colonial Office back in London appointed the main office-bearers for Colonial positions, shifting, juggling and negotiating individual careers as part of a huge chess-game, with influential spectators on the side making their ‘suggestions’, pulling their strings and calling on and bestowing favours in the swirl of patronage and reciprocity. The appointment of magistrates was, however, one of the positions in the gift of the local Governor in the colony- and he used it. And eager aspirants knew that and approached him too, with their letters of introduction and recommendation from patrons both at home and those who had preceded them to the colony.
The early magistrates in Port Phillip were appointed from Sydney, both paid and unpaid. There was a sniffiness about paid (or stipendiary) magistrates, and certainly the London-based Colonial Office preferred honorary magistrates who did not need to be paid. But from about 1822-42 the courts had increasing oversight over magistrates’ activities and the issue of conflict-of-interest became more pressing. Unlike in England, the landed proprietors of New South Wales were not a leisured class: they were entrepreneurial men on the make themselves, who were anxious for quick returns on their capital, which in turn depended on convict productivity. The rapid extension of settlement necessitated the appointment of paid magistrates in charge of an organized, generally ex-convict, police force. On the anxious fringe of frontier settlement, there was increasing demand for police magistrates which was on one level resisted by the local government on grounds of cost, but acceded to as a ‘temporary’ measure because it meant that personnel could be shifted to meet population movements and changing needs, unlike honorary magistrates who were appointed because they were already established in a particular locality.
Patronage power tended to be diluted the further one travelled from the metropole. The Colonial Office could, and did, ask that particular men be appointed magistrates- F. B. St John, the Police Magistrate in Port Phillip was one such Colonial Office request. But generally, the magistracy was one area of patronage, interwoven as it was with local status and visibility, that the Colonial Office was prepared to devolve to the Governors. Once La Trobe arrived in Port Phillip, Gipps shared aspects of this patronage with La Trobe. He always consulted La Trobe before ratifying appointments and he entertained suggestions from La Trobe’s end. But the actual gift of the magistracy rested with him.
Gipps’ practice was to avoid making magistrates from among practising doctors and from the clergy (unlike earlier times- the Rev Samuel Marsden was commonly known as a whipping parson). He insisted that magistrates must have been in the colony for one year, and must be at least 24 years of age. Gipps relied on La Trobe’s opinion and asked him to vet the appointments amongst others in the locality- for instance, before appointing Stephen and Edward Henty to the position of magistrate in Portland, La Trobe consciously sought out people who thought they should not be appointed- to no avail. Gipps advised La Trobe to broach the topic with nominees beforehand: “I hope you always obtain a man’s consent to act before you recommend him as it is very necessary to do so.” Gipps suggested that La Trobe make the recommendation directly to him (Gipps) or to his Private Secretary as “a man might not want his qualifications for the Magistracy discussed in public office” (Gipps to La Trobe 1 March 1840, Shaw Gipps-La Trobe Correspondence p.17)
By the early 1840s the magistracy was no longer seen primarily as a penal surveillance mechanism, but had been overlaid with other municipal, moral, licensing and public order issues. The honorary and police magistrates were responsible for the “regulation and control of a community” including the administration of regulations over buildings, fire prevention, roads, cleanliness etc. as well as petty crime and public safety. When the Melbourne Town Corporation was created in 1842, a separate division of magistrates was created from among the town councillors.
One thing that you did not need was legal training. In the 1830’s Plunkett published his book which came to be known as “Plunkett’s Australian Magistrate” and the mainstay of legal advice for magistrates and the first Australian practice book of its kind. As the 1840s went on, there were increased bureaucratic demands made of magistrates in terms of documentation and official oversight.
Paul de Serville in Port Phillip Gentlemen lists the magistrates appointed in 1841. Several held other government positions e.g. Edwards,, Le Souef, Parker, Robinson and Sievwright were all magistrates by virtue of their positions as Aboriginal Protectors; Airey, Fyans and Powlett were also Commissioners of Crown Lands. Lieutenant Russell as Commander of the Mounted Police was a magistrate; as was James Simpson as Police Magistrate until replaced by the Colonial Office’s suggestion of F. B. St John. Alongside these were the honorary magistrates recognized for their importance in the community. As part of the gentlemanly identity that they all projected and drew upon, all magistrates were involved in myriad civic and business activities.
As might be expected given Willis’ temperament, he clashed with several of the magistrates under his purview. He strongly embraced the educational aspects of his role as Supreme Court judge, insisting that the magistrates attend court to familiarize themselves more fully with the law. He was critical of magistrates who were involved in speculation – or at least, those who got caught out in the financial distress of the early ‘4os, and clashed with Simpson, Farquhar Mc Crae, Lonsdale and Brewster. He was often critical of the Aboriginal Protectors, especially Sievwright who was by this time under a cloud over other improprieties as well. In one of the frequently-retold vignettes from Judge Willis’ courtroom, he clashed on several occasions with J. B. Were, most famously when he without warning ordered Were, attending court as a magistrate, to take the witness stand to testify. When Were protested that he could not remember certain details, Willis awarded him one-two-three-six months in jail for contempt of court. Needless to say, J. B. Were was one of the 18 who protested Willis’ behaviour. But not all magistrates opposed him. Willis looked favourably on Robert Martin, William Verner and J. D. Lyon Campbell- all of whom happened to live nearby to Willis in Heidelberg- and they gave him their unstinting support. The split in support or opposition to the Judge amongst the magistrates mirrored the division in public opinion more generally.