Legal System, 1815-1832

The Newfoundland and Labrador legal system underwent dramatic changes during the reform era. It was formally constituted under British law and became more structured and firmly established than ever before. New legislation in 1824 replaced surrogate courts with circuit courts, made it mandatory for judges to possess proper legal training, created a court of civil jurisdiction in Labrador, and expanded the Supreme Court's jurisdiction into fishery and other maritime matters.

Changing Society and Legal Reform

Judicial reform sprang from rapid social, economic, and political changes taking place in Newfoundland and Labrador in the late-18th and early-19th centuries. During this period, the migratory fishery gave way to a resident industry, the colony experienced an economic boom, and its permanent population expanded rapidly. Alongside fish workers, the island's larger centres supported physicians, shopkeepers, journalists, farmers, artisans, clergy, teachers, and a variety of other workers by the early 1800s.

As Newfoundland and Labrador society became more complex, anchored, and prosperous, some residents felt the system of administration had grown outdated. Since 1729, Britain had appointed governors to rule the colony, who in turn appointed judges, constables, and other officials to administer the public. Over time, governors altered the legal system to accommodate the changing needs of the colony's growing year-round population. Governor Henry Osborn, for example, appointed the colony's first winter magistrates in 1729, while Governor George Rodney formalized a system of surrogate courts in 1749 to operate in the outports; governors usually appointed naval officers to preside over these courts as surrogate judges.

Newfoundland Governor Henry Osborn, n.d.Newfoundland Governor Henry Osborn, n.d.
Henry Henry Osborn appointed Newfoundland's first winter magistrates in 1729.

Courtesy of the Provincial Archives of Newfoundland and Labrador (PANL VA 27-1), St. John's, NL.

By the end of the 18th century, the colony's legal system consisted of surrogate courts, a Supreme Court in St. John's to preside over civil matters, a Vice-Admiralty Court with jurisdiction over naval and maritime affairs, Courts of Session to settle minor wage disputes, and a Court of Oyer and Terminer to hear all criminal cases except treason.

Rapidly changing population dynamics in the early 1800s, however, prompted some residents to question the ability of the government and judiciary to properly administer the colony. A reform movement emerged to lobby for the establishment of representative government in Newfoundland and Labrador, which would allow eligible citizens to elect candidates into a local House of Assembly.

Lundrigan and Butler

Although the movement initially focused on political reform, it began to advocate for judicial reform in 1820, when controversial court rulings against two resident fishers sparked widespread discontent with the surrogate court system. Fishers James Lundrigan and Philip Butler were separately charged with owing money to merchants, but failed to appear in court when summoned. Surrogate judges John Leigh and David Buchan placed each man in contempt of court, sentenced them to public whippings, and evicted them from their homes, alongside their wives and children. Similar offences were not uncommon in Newfoundland during the early 1800s, yet never resulted in corporal punishments. The Lundrigan and Butler cases were unique in that both men had wives who publicly challenged court officials when they tried to seize their property – Lundrigan's wife Sarah Morgan, for example, threatened to blow out the brains of the constable who tried to serve her a writ.

Many residents believed the punishments were unnecessarily harsh and called for an overhaul of the judicial system. The public was primarily discontented with the government's practice of appointing surrogate judges who had no formal legal training – most were officers in the Royal Navy or merchants and other educated members of society. Leigh, for example, was a member of the clergy, while Buchan was a naval commander. By 1820, a growing number of residents questioned the impartiality of surrogate judges and worried they did not have a good enough understanding of the law to properly administer justice.

Surrogate Judge David Buchan, n.d.
Surrogate Judges David Buchan and John Leigh presided over the controversial Lundrigan and Butler cases.

From James P. Howley, The Beothucks or Red Indians: The Aboriginal Inhabitants of Newfoundland (Cambridge: Cambridge University Press, 1915) Plate VIII.
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Surrogate Judge David Buchan, n.d.

Reformers effectively promoted the Lundrigan-Butler scandal as evidence that the judiciary had grown out of touch with contemporary society and was not fit to administer the people. They called for a civil court system, properly trained judges, and a local legislature, arguing political and legal reform would eliminate archaic laws, result in more reasonable punishment for minor offences, and provide the public with greater control over its own governance.

With encouragement from reformers, Lundrigan and Butler launched countersuits against Leigh and Buchan in the colony's Supreme Court in November 1820. Although Chief Justice Francis Forbes ruled the surrogates had acted within their rights, he faulted the judges for delivering overly severe sentences and criticized the colony's legal system for allowing unqualified individuals to serve as surrogate judges. Forbes's harsh words further fuelled the reform movement and added to mounting public discontent with the judiciary.

1824 Judicature Act

Reformers sent a petition to the British government in 1821 denouncing the surrogate courts and requesting an overhaul of the judiciary. Britain responded by passing a Judicature Act in 1824 that dramatically revamped the colony's court system. The act created a permanent Supreme Court with full civil and criminal jurisdiction, dismantled the surrogate court system, and replaced it with circuit courts. The Vice Admiralty Court retained power over naval matters, while the Supreme Court expanded its jurisdiction to include the fishery and sea crimes.

The Act made it mandatory for the chief justice and his assistant judges to possess proper legal training and required that they have at least three years' experience working as barristers in the British Empire. It divided the island of Newfoundland into three districts – central, northern, and southern – and determined that the Supreme Court would operate in the central district, while circuit courts (presided over by assistant judges) would administer the remaining two districts.

The Act also created a Court of Civil Jurisdiction in coastal Labrador, where Moravian missionaries and commercial traders had provided the only previous form of government administration. The St. John's-based government, however, dismantled the Court of Civil Jurisdiction in 1834 because it felt the system was too expensive to maintain.

Reformers, merchants, and many members of the public welcomed the 1824 Judicature Act as a major step forward. The new legislation not only ended the almost century-long authority of naval commanders over a civilian population, but also laid the groundwork for the legal system currently operating in the province of Newfoundland and Labrador.

Article by Jenny Higgins. ©2009, Newfoundland and Labrador Heritage Web Site

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