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Archives In Brief 123 - Justices of the Peace

This Archives in Brief provides a brief overview of the major sources held by State Records that relate to Justices of the Peace in New South Wales.

Historical background

List of Magistrates in NSW (Volume front cover image)The Royal Letters of Patent under the Second Commission of Governor Phillip dated 2 April 1787 appointed the Governor, Lieutenant Governor and the Judge Advocate of the colony as the first Justices of the Peace. The authority derived from the Letters Patent also gave the Governor the sole power to appoint and dismiss Justices of the Peace within the colony.

The early Justices of the Peace were drawn from the colony’s landowners, civil and military officers. The position conferred increased power and status along with with great responsibilities.

The Reverend Samuel Marsden was one of the most famous of these honorary magistrates.

Justices of the Peace were authorised to keep the peace for the territory of New South Wales by being able to arrest, take bail, bind to good behaviour and to suppress and punish riots. [1]

They belonged to the class now generically known as magistrates. Their judicial duties enabled them to sit in court and to adjudicate in petty crimes and minor civil matters, and to commit the more serious cases for trial by higher courts.[2] Early Justices of the Peace administered both the police force and the convict system. Their responsibilities in the latter area included overseeing convict musters, convict assignment and discipline as well as the granting of tickets of leave. [3]

The introduction of paid magistrates, known as police or stipendiary magistrates, from the mid 1820s heralded the steady erosion of both the powers and responsibilities of the Justices of the Peace. The Summary Jurisdiction Act of 1832 reigned in the judicial powers of the magistrates by specifying both the offences over which they had jurisdiction and the punishments accompanying these offences. [4] By 1850 the paid magistracy was a well entrenched feature of the local legal system. [5] NRS 13629, Commission of the Peace for Ella Simon

The Justices of the Peace (Jurisdiction) Act 1850 further regulated both the judicial and ministerial duties of Justices. Under The Justices Amendment Act 1853 every Justice of the Peace in New South Wales was declared a Justice for the colony generally and the letters JP after the signature were introduced to denote that the person who bears that signature is a Justice of the Peace. [6]

Prior to 1901 the commission of a Justice of the Peace lasted until the death of the Sovereign. Under the Demise of the Crown Act (No. 57, 1901) the office of Justice of the Peace became a lifetime appointment. [7]

The Justices Act 1902 further limited the judicial powers of Justices of the Peace. Under Section 13 of this act Justices performed no judicial functions in the Metropolitan, Newcastle, Parramatta, Ryde and Wollongong Police Districts and the Municipality of Windsor. In outlying areas the Justices were limited to dealing with minor charges and emergencies. [8]
The passing of the Women’s Legal Status Act 1918 (No. 50) paved the way for the appointment of the first female Justices of the Peace in New South Wales in 1921.

Ella Simon, the first Aboriginal Justice of the Peace in New South Wales was appointed in 1962.
Since the foundation of the colony Justices of the Peace were appointed in New South Wales under inherited English law. The power to appoint JPs under local legislation was not given until the passing of the Imperial Acts Application Act 1969.

NRS 4346 Hay Court HouseIn 1975 administration of Justices of the Peace was transferred from the Chief Secretary to the Attorney General. Applicants were required to be Australian citizens by birth, descent or naturalization; to be between 18 and 70 years; to be an enrolled elector in New South Wales; to be of good character; and not to be a discharged bankrupt. [9]
All current appointments of Justices of the Peace in New South Wales are made under the Justices of the Peace Act 2002. Lifetime appointments were abolished under this Act and five year terms were introduced. It was also made mandatory to maintain a publicly accessible register of Justices of the Peace. [10]

The functions of a Justice of the Peace are currently limited to administering oath declarations or affidavits, witnessing signatures and attesting and certifying documents.

Select list of sources

Main series

Supreme Court Prothonotary

NRS 13629, Commissions of the Peace, 1865-1958 [7/6997-7083]
Letters patent appointing Justices of the Peace bearing the Governor's signature and enrolled in the Supreme Court of New South Wales.

Indexes

These commissions have been indexed by Kaye Vernon and Billie Jacobsen and are available in three volumes on CD ROM or in book form. The indexes on CD ROM are available in the reading room. You can search by surname or by year of commission (item number). The index gives name, year of commission and residence. Please note that this series is incomplete.

Colonial Secretary

NRS 976, Copies of letters to the judicial establishment, the Sheriff and the Coroners, 1826-1908 [4/3736-75], Reels 624-653
One of the main subjects of these letter books is the appointment of Justices of the Peace and the transmission of oaths taken by them.

NRS 1027, Justice of the Peace Oaths of Allegiance and Judicial Oaths, 1857-1974 [7/6869-89, 7/6900-88, 7/7267-71, 3/6416-37, 7/7767-72, 12/1627-33]
These are forms of Oaths signed by Justices of the Peace prior to issue of Commissions of the Peace.

NRS 1026, Registers of appointments of Justices of the Peace, 15 Feb 1844-1945 [5/3250-57], Reels 3039-3040
These volumes show name, address and date of appointment. They may also give the following details: date of resignation or revocation of commission; date of departure from colony and date of death.

Additional series

Colonial Secretary

Index to Colonial Secretary’s papers, 1788-1825 *ARK
To locate the early records of Justices of the Peace consult the index under ‘Justices of the Peace’ and under individual names.

Commissions appointing Justices of the Peace for the colony of New South Wales, 1824-27
[SR DOCs 1-12] These are original commissions, signed by the Colonial Secretary and sealed. Please consult item lists available in the reading room for names of individuals.

NRS 905 Colonial Secretary's papers, 1826+
These records contain correspondence relating to Justices of the Peace covering both Sydney and country areas.

NRS 906, Colonial Secretary’s Special bundles

The following bundles look at the specific judicial duties of magistrates with respect to the summary trial of convicts

Re law governing summary trial and punishment of the convict population 24 Sep 1832 [SZ 79]

Circulars to Magistrates re summary trial of convicts 30 Sep 1828 [2/8328]

Justices of the Peace – miscellaneous matters 1927-34 [5/5432, 5/5407-09]
These bundles contain applications for the position of Justice of the Peace, lists of newly commissioned Justices of the Peace, details of Justices whose commissions have been revoked as well as general correspondence covering the position and its duties.

Supreme Court Prothonotary: Justice of the Peace Writs of Supersedeas 1868-1947

NRS 13630 [7/7084-97]
These are Letters Patent revoking Commissions of the Peace and bearing the Governor’s signature.

Other sources

NRS 3397, Judge Advocate’s Bench of Magistrates, Proceedings, 19 Feb 1788-13 Jan 1821 [SZ 765-75], Reels 654-59 These are cases heard before the Judge Advocate’s Bench of Magistrates and reflect the Bench’s functions in areas such as setting the price of bread, issuing and cancelling publican’s licences, swearing in constables and controlling the markets. An online index is avialable to search.

Index to the Bench of Magistrates Returns New South Wales, 1822-28, 1830-31
The above indexes compiled by Shirley Doolan are available in our reading room.

NSW Government Gazettes 1885-1954
Justices of the Peace are usually indexed under ‘Commissions of the Peace’.

Online register
An online register of current JPs in NSW is maintained by the Department of Justice and Attorney General .

Further Reading

David Neal, The Rule of Law in Early New South Wales. Cambridge University Press, 1991.
Alex C. Castles, An Australian Legal History. Sydney, The Law Book Company, 1989.
Frank J Smith. Manual for Justices of the Peace in New South Wales. Sydney, John Sands Printer and Publisher, 1896.
G.P.L Hungerford, An Outline of the Duties of Justices of the Peace in New South Wales. Sydney, The Law Book Co. of Australasia, 1939.
Department of Attorney General and Justice, A Guide to the duties of Justices of the Peace in New South Wales, Sydney, Government Printer, 1976.
Department of Justice and Attorney General. A Handbook for Justices of the Peace in NSW (PDF) 6 Dec 2010

Footnotes

1 Historical Records of Australia, Series 4, Vol 1, p.12
2 The Australian Encyclopedia, 4th edition, Vol 6, p.3
3 David Neal, The Rule of Law in early New South Wales, p.119
4 Ibid, p. 136-7
5 Alex C. Castles, An Australian Legal History, p. 212
6 Frank J. Smith, Manual for Justices of the Peace in New South Wales, p.ii
7 G.P.L. Hungerford, An Outline of the duties of Justices of the Peace in New South Wales, p.5
8 A Guide to the Duties of Justices of the Peace in New South Wales, p.13
9 Ibid, p.11
10 A Handbook for Justices of Peace in New South Wales, p.6