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COPY OF A REPRESENTATION OF THE LORDS OF THE COMMITTEE OF PRIVY COUNCIL FOR TRADE AND FOREIGN PLANTATIONS,
ON THE SUBJECT OF ESTABLISHING A COURT OF CIVIL JURISDICTION IN THE ISLAND OF NEWFOUNDLAND. DATED 10 MAY, 1790.
PAPERS RELATING TO NEWFOUNDLAND, 1718-1793.
May it please Your MAJESTY,
The Merchants and Trades of Dartmouth, Exeter, Topsham, and Teignmouth, carrying on the Fishery and Trade at Newfoundland, have presented to this Committee a Memorial, complaining that a Court was established last Season in the Island of Newfoundland, by Vice Admiral Milbanke, Your Majesty's Governor of the said Island, called a Court of Common Pleas, consisting of Four Commissioners ; and that this Court so established was kept open Daily, to the constant Interruption of the Fishery and Trade, by continually issuing Orders ; by calling away the Agents and Servants of the Memorialists and others on every frivolous Occasion, to serve on Juries ; and by listening to every trivial and vague Complaint ; by sending arbitrary and immediate Orders to attend the said Court, from any distant Part of the Island, with Threats to fine those who did not attend, without Regard to the Neglect of their Business, Personal Hazard, or any other Consideration ; all which Proceedings must necessarily be prejudicial to a Fishery which totally depends on Personal Attention and Industry : And the Memorialists further complain, that the said Court demanded exorbitant Fees.
The Lords of the Committee thought it their Duty, immediately, to send a Copy of the said Memorial to Vice Admiral Milbanke, calling upon him to inform the Committee how far the Facts stated in the said Memorial were well founded ; and in case the said Court was a new Establishment, to assign his Reasons for having formed such Establishment ; but if it was only an Alteration of a former Establishment to assign the Reasons which had induced him to make such Alterations ; and further to certify to the Committee whether any, and what Fees were taken by the Judges, or other Officers of the said Court.
Admiral Milbanke's Reasons for forming the said Court will be found at
Length in his Report hereunto annexed, which he transmitted to this Committee in a Letter, dated 11th February last : And in a Letter, dated the 20th of the same Month, he justified the Proceedings of the said Court by alledging, that from the 4th September, when the Court first began to sit, to the Admiral's Departure for England on the 26th October, there were only Four Courts, neither of which lasted more than Five Hours ; whereas the Court of Session, in which such Causes are said to have been formerly tried in the said Island, never sat less than Twice a Week, seldom got through more than Three Causes in a Day, and those in such a Manner as frequently to occasion their being tried Two or Three Times over. That One Judge of the new established Court sat however every Day, in order to save Trouble to the Plaintiffs, who had thus an Opportunity at all Times to present Petitions, and make the proper Affidavits for commencing Suits, after which there was no further Trouble given than such as must have attended every Suit in the most trifling Cause in a Court of Conscience. That by comparing the Court established by him with the former Court of Session, or that of Vice Admiralty, it will be found that the new Court is formed on simple Principles, and cannot fail to distribute equal and immediate Justice to all, without Respect to Persons— That the Two former Courts herein
before mentioned are without Form or Order, and if not glaringly partial, only harrass, perplex, and waste the Time of many Individuals, instead of doing their Business for them— That the Attendance upon Juries in the new Court is not greater than heretofore ; for that the Court of Session never proceeded on any Cause of Consequence without a Jury ; and that even the Vice Admiralty Court, in consequence of Complaints from the Merchants, during Vice Admiral Campbell's Government had frequently summoned Juries.— That of Twenty-eight Causes completely disposed of by the new Court, the least of them was for upwards of £5. most of them for more than £10, and some for near £200 ; and out of the Whole only Two Verdicts were given against the Plaintiffs.—That, except in One Instance, no Person was sent for to attend this Court from out of the District of St. John's ; and that, in that One Case the Defendant might have avoided the Inconvenience, which was wholly occasioned by his Obstinacy. —That the Fees taken in the new Court were considerably less than those taken in the Court of Session, and not a Quarter of the Sum charged by the Court of Vice Admiralty.— That the Court of Session has always conducted their Business in a very irregular and bad Manner, owing to the Justices being kept in continual Dread by the Merchants, who frequently threaten to prosecute them for their Decisions.— That the Court of Vice Admiralty had likewise been cornplained of by the Merchants as a great Grievance, and the same Merchants now wish to represent the new Court as likely to ruin the Fishery ; so that whatever Judicature may be established in the Island, it is likely to meet with Opposition from the Memorialists, who aim at sacrificing the real Interests of the Fishery to their private Views.—— For further Particulars the Committee presume to refer to the before mentioned Letter of Admiral Milbanke, dated the 20th February last.
The Committee having maturely considered the Reasons assigned by Your Majesty's Governor for establishing the said Court of Common Pleas, and the several Facts alledged by him in Justification of the Proceedings of the said Court, thought it right to examine the said Governor, viva voce ; in which Examination he gave an Account, as will be found in the Paper hereunto annexed, marked (A) of the several Courts, Civil and Criminal, which have hitherto subsisted in the Island of Newfoundland, and of their Manner of proceeding.
After a full Consideration of what is before stated, the Committee were of Opinion, that a proper Court of Civil Jurisdiction should be established in the Island of Newfoundland, specially constituted for the Purpose of trying such Questions as are not now provided for by any Act of Parliament ; they therefore thought it right to take the Opinion of Your Majesty's Attorney and Solicitor General, upon the following Questions ; viz.
1. Whether the Court of Common Pleas, erected by Vice Admiral Milbanke last Year, in the Island of Newfoundland, is founded in any Authority legally given to the Governor of Newfoundland by Your Majesty's Commission, or can be supported or justified by Law ?
2. Whether in any Act of Parliament, or in Your Majesty's Commission, appointing the Governor of Newfoundland, there is given any Power for erecting any Court of Civil Jurisdiction in the Island of Newfoundland, or for authorizing any of the Courts of that Island to try Civil Causes there, except in the special Cases mentioned in the Acts 10 and 11 W. III. Ch. 25. Sect. 13, 14, 15 ; 15 Geo. III. Ch. 31. Sect. 18 and 34 ; 26 Geo. III. ch. 26. Sect. . And whether, in case no such Power has hitherto been given, Your Majesty may not, by a Commission under the Great Seal, erect a Court of Civil Jurisdiction in the Island of Newfoundland, specially constituted for the Purpose of trying all Questions that may arise between one Fisherman and another, or between the Fishermen and their Hirers or Employers, or between the said Fishermen and the Merchants of whom they purchase what is necessary for their Subsistence and Comfort during the Continuance of the Fishing Season ?
3. What the Nature and Constitution of a Civil Court, erected for the Purposes before mentioned, should be ?
The Committee accompanied the said Questions with the following Observations, respecting the Policy which has always been observed by the Government of this Country, in carrying on the Trade and Fishery at Newfoundland ; viz.
Mr. Attorney and Solicitor General are desired to take Notice, that the Government of this Country, having always considered the Trade of Newfoundland, merely as a Fishery, to be carried on solely by the Subjects of His Majesty's European Dominions, it has always been the Wish of Government o bring back the Fishermen at the End of every Season to the Ports of the
said Dominions, and to prevent their establishing themselves as a Colony in Newfoundland. With this View no Civil Commission was given to the Governor, who goes out Annually, till about the Year , and no Court was established for trying Crimes of any Sort till about the Year , but all Criminals were to be brought Home to Great Britain, to be tried under the Authority of the Act of 10th and 11th W. III. Ch. 25. That of late Years a greater Number of His Majesty's Subjects continue to reside at Newfoundland during the Winter, after the Fishing Season is at an End, than formerly. That the Committee of Privy Council see this Circumstance with Regret, thinking it contrary to ancient Policy, and the true Interests of this Country, and wish to prevent it as much as possible. The Attorney and Solicitor General are desired also to take Notice, that much the greater Number of the Fishermen are extremely poor and ignorant, and thereby very much exposed to be defrauded by those with whom they deal.
In Return to which Questions Your Majesty's Attorney and Solicitor General, in their Report, which is hereunto annexed, have answered to this Effect :
That the Court of Common Pleas erected last Year by Your Majesty's Governor is not founded on any Authority legally given to the said Governor, and cannot be supported or justified by Law.
That they do not find that any Court of Judicature is established in the Island of Newfoundland, excepting in the Special Cases mentioned in the Acts of Parliament 10th and 11th W. III. Ch. 25 ; and 15th and 26th of Your Majesty, Ch. 31 and 26 : And that as Your Majesty is not precluded, by any Provision in the Acts before mentioned, nor by any other Acts with which they are acquainted, from so doing, Your Majesty may, by virtue of Your Royal Prerogative, by Commission under the Great Seal, establish a Court of Civil Judicature in Newfoundland for the Purpose of hearing and determining all Questions that may arise of the Nature hereinbefore mentioned.
And they further report, that after paying due Attention to the peculiar Policy of this Kingdom, with respect to the Territory of Newfoundland, which has always been directed to discourage the Subjects of these Kingdoms from establishing themselves in that Island, and to encourage the Return of the Fishermen and Seamen to these Kingdoms, they had, prepared, comformably to the Directions of the Committee, a general Outline of a Court of Civil Judicature, in Cases not yet provided for by any Act of Parliament ; which is as follows, viz.
That Your Majesty, by Your Royal Letters Patent, should direct and appoint, that there should be within the Island of Newfoundland a Court, to be called the Court of Civil Jurisdiction ; and that an English Barrister, of not less than Five Years standing, together with Two fit and proper Persons, to be appointed by the Governor for the Time being, should preside in such Court.
That such Court should have full Power and Authority to hear and determine, in a summary Way, all Pleas concerning Debts, Accounts, or other Contracts, and all other Personal Pleas whatever, excepting such as may now be heard and determined by any Jurisdiction established in the said Island by any Act or Acts of Parliament.
That such Court should have Power to grant Probates of Wills, and Letters of Administration ; and that in the Cases above mentioned, the Court should proceed by Complaint in Writing ; Summons of the Defendant in Cases where the Matter in Question is under such Value, as to Your Majesty's Wisdom may seem best adapted to the Circumstances of the Island ; and by Arrest of the Defendant, in Cases where the Sum demanded shall exceed that Amount ; such Court having Power to take Bail for the Defendant's Appearance and Performance of such Judgment, as the Court shall pronounce : And that such Court should have Power to execute the Judgment so given, and enforce the Payment of the Costs of Suit, by Warrant of Execution, by Sale of the Defendant's Goods and Chattels, rendering to him the Overplus, and to imprison the Defendant until such Judgment shall be satisfied.
That it may be proper, if the Party against whom Judgment may be given shall think himself aggrieved, that a Power should be given to such Party to appeal to Your Majesty in Your Privy Council, within a limited Time, upon giving proper Security, in Cases where the Matter in Dispute shall exceed the Value of and that the Court below should have Power to proceed in a summary Way, by Foreign Attachment of Goods, Debts, and Effects of Debtors, in the Possession of other Persons residing in the Island of Newfoundland.
That it would be most conformable to the Policy which has been observed by this Kingdom with respect to the Territory of Newfoundland, that the Court hereinbefore described should hold its Session from the 1st Day of June to the 1st Day of December in each and every Year, and should take Cognizance of no other Suits than such wherein the Cause of Action has arisen within Two Years previous to the Commencement of such Suit.
And the Committee having taken the before-mentioned Plan of a Court of Civil Judicature into Consideration, humbly offer it as their Opinion to Your Majesty, That it may be adviseable for Your Majesty, by Your Royal Letters Patent, under the Great Seal of Great Britain, to erect a Court of Civil Jurisdiction within the Island of Newfoundland, according to the Plan before mentioned, with the following Alterations and Additions :
FIRST, That the Person appointed to preside in this Court be either an English Barrister of Five Years standing, as advised by Your Majesty's Attorney and Solicitor General, or some other Person who, all Circumstances considered, may be thought equally well qualified for this Station.
SECONDLY, That in case the Judge recommended to be so appointed should die during the Fishing Season, the Governor should appoint a Person, then