Government, 1730-1815
Until recently, government in Newfoundland during the century
after 1730 has been misunderstood. Nineteenth-century
commentators portrayed this era as marked principally by conflict
between fishing admirals and civil magistrates. It represented a
chapter of our past best left forgotten. Passed down from
reformers like Patrick Morris, the picture of ignorant fishing
admirals and authoritarian naval governors remains with us to the
present day. We tend to see justice in the pre-modern period as a
hopelessly confused mishmash of laws and traditions.
Nevertheless, government between 1730 and 1815 was remarkable for
its relative stability and effectiveness.
The primary legal resources
consisted of the naval governor (appointed by annual commission
from the British government), his junior officers (who acted as
surrogates),
the magistrates in each district (most importantly the
justices of the peace),
and the fish merchants who dominated St.
John's and the outports. Although the fishing admirals had
sharply contested the authority of the governor and magistrates
as late as the 1740s, by the 1760s they were no longer an
independent force. In the second half of the 18th century
the fishing admirals were absorbed into the island's
government, and often assisted local justices of the peace.
As in the 17th century, government in Newfoundland after 1730
had a form of dual authority, but it was a cooperative system of
naval and civil officials. By the mid-1760s the island was
divided into nine districts, administered by civil magistrates,
and five maritime zones, governed by naval surrogates. At the
lower level, justices of the peace took
depositions, held
petty sessions, and organized
quarter sessions.
Each year the governor appointed several naval commanders to act
as surrogate judges, ordered to the various bays to settle
disputes and to preside over autumn quarter sessions—termed a
surrogate court—usually with the local justices of
the peace. Governors worked to consolidate authority, but the
overlapping jurisdictions remained localized and varied
considerably according to regional customs and accessible
resources. Whereas St. John's and Harbour Grace maintained
regular appointments of justices and
coroners, commissions of the
peace for other areas, such as Trinity and Bonavista,
periodically lapsed for several years.
View of King's Beach, St. John's, ca. 1770
From D. W. Prowse, A History of Newfoundland (London: Macmillan, 1895) 349.
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The most important theme in the history of law and government
in this period is the process by which the island's
institutions adapted to local conditions. Aside from the
court of oyer and terminer,
which heard serious criminal offences,
four courts dominated the administration of justice in
Newfoundland: the governor's court in St. John's; the
surrogate courts; the sessions held by justices of the peace; and
the
vice-admiralty court at St. John's.
Each of these
institutions evolved beyond its formal jurisdiction. For example,
while naval officers were authorized by parliamentary statute
(King William's Act of 1699) only to act as appeal judges,
in practice they judged a wide variety of civil and criminal
cases. The surrogate courts were based on
customary law,
in other words, the practices which came over the years to
be recognized as legitimate authority. Such customary practices
were, in fact, an accepted part of the English common law
tradition. When the British parliament passed a new act for the
Newfoundland fishery in 1775, known as Palliser's Act, it
merely codified existing customary laws.
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Palliser's Act
The cover and first page of the Act of King George III, more commonly known in Newfoundland as 'Palliser's Act.' Originally printed in London by Charles Eyre and William Strahan, 1775.
Copy courtesy of the Centre for Newfoundland Studies, Memorial University of Newfoundland Library, St. John's, NL.
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From 1787 to 1791 the legal system in Newfoundland experienced
a major crisis. An appeal heard in England against a decision by
a surrogate judge threw the island's judiciary into
confusion. Cases piled up by the hundreds while authorities tried
to decide how best to reform the courts. In 1789 the crisis
deepened further when a shipload of Irish convicts was landed at
Bay Bulls and Petty Harbour. Admiral Mark Milbanke, who had just
been appointed governor, had to overhaul the judiciary at the
same time as he dealt with the dangers posed by the convicts.
Faced with these problems, the British government conducted an
investigation into law and government in Newfoundland. An act
passed in 1791 gave Newfoundland a new constitution and its first
chief justice, and the following year another act established a
supreme court.
John Reeves (1752-1829)
The first Chief Justice of Newfoundland.
Artist unknown. From European Magazine June 1798.
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Yet for the next 30 years the government of Newfoundland
functioned largely as it had before 1787. The governor, assisted
by a secretary, presided in St. John's, assisted locally by
surrogates, justices of the peace, and merchants. In official
terms, Newfoundland remained a seasonal fishing station with
neither colonial status nor a local legislature. It is important
to note that this type of government was not relatively backward,
it was relatively different, and certainly just as effective as
that in other British colonies. However, during the Napoleonic
Wars the island experienced massive social and economic change,
and after 1815 a local reform movement emerged to pressure the
British government to grant Newfoundland its own elected
assembly.
Generally speaking, the period of 1730 to 1815 represents the
age of naval government in Newfoundland. The governor was also
the commodore of the naval squadron sent each summer to protect
the fishing fleet; until 1792 all of the surrogate judges were
naval commanders; and the island was seen as a
"nursery" for British sailors.
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George Rodney (1719-1792)
Governor of Newfoundland 1749.
Portrait by Sir Joshua Reynolds ca. 1756, following Rodney's promotion to rear-admiral.
Courtesy of the Provincial Archives of Newfoundland and Labrador (PANL VA27-9), St. John's, NL.
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This era also marks the
beginnings of civil government in Newfoundland, the establishment
of local magistrates, and the development of customary law. Added
to this system of government were the powerful fish merchants,
who became involved whenever they perceived their property to be
threatened. Without an independent press or popularly elected
assembly to question their decisions, authorities in Newfoundland
responded to problems as they saw fit. It may not have been a
very fair or just system, especially when compared to modern
standards, but it operated effectively for nearly a century.
©1997, Jerry Bannister
Text accompanying the image of George Rodney updated September, 2008.
