Law and the Courts
Although law and the courts have figured prominently in traditional historical accounts, until recently we knew little about how Newfoundland's legal system actually operated. The generalizations offered by historians such as D.W. Prowse and A.H. McLintock had never been tested against the evidence of a systematic study of the archival court records. For example, we knew a great deal about how the fishing admirals were reputed to have behaved, but we had no scholarly analysis of how they exercised their duties. Thus popular caricatures and stereotypes have over time become accepted as historical facts. It is widely believed that our early history was dominated by what Tom Cahill calls "rough justice," though this perspective is based largely on the 19th-century pamphlets of political reformers such as Patrick Morris and William Carson, both of whom had a vested interest in discrediting the island's naval government.
Based on recent research, this section of the Silk Robes and Sou'westers web site entitled Law and the Courts re-interprets Newfoundland's judicial history. It provides a new framework in which to analyze the two centuries from the first Western Charter in 1634, to the grant of representative government in 1832, and places both informal and formal types of authority, particularly local customs as well as statutory law, in a new historical context. It rejects the tendency to portray the entire pre-1832 era as an epoch of legal chaos and political anarchy.
It argues that in order to understand the juridical world in which fishing admirals and naval commodores lived, it is important to recognize the dominance of common law relative to statutory law. The heavy reliance on customary law in early Newfoundland is often seen as proof of an inherently backward legal culture, but in fact the island's legal system was neither illegitimate nor ineffective. When placed in the comparative context with other British territories, as well as Georgian England, the development of Newfoundland does not appear to be unusually anomalous or defective. This section is designed to dig beneath the assumption that the island's legal history was simply unique. To those living in 18th-century Newfoundland, its judicial system followed a set of known laws and customs, upheld a recognized state authority, and reflected an established social order.
Law and the Courts is organized into three sub-sections built around an interpretive narrative: from the Western Charter to the appointment of the first naval governor and justices of the peace in 1729; from the beginnings of naval government in the 1730s to the socio-economic transformation which occurred during the Napoleonic Wars; and from the rise of the St. John's reform movement after 1815 to the grant of a local legislature in 1832. Each section contains several articles which explore major themes, such as the rule of the fishing admirals, the role of surgeons in judicial administration, and the reception of law. They trace the evolving relationship between law and politics from the 17th century, through the naval government which dominated the 18th century, to the battle for constitutional reform in the 1820s. The articles employ a variety of methodologies, from case studies of individual trials to textual analysis of legal discourse.
This synthesis of a broad overview with an in-depth analysis of specific issues provides a thorough reappraisal of key aspects of the island's history and culture. By challenging the traditional perspective, the Law and the Courts offers a new framework for re-evaluating not only the familiar legends of rough justice and corrupt fishing admirals, but also the origins of modern courts and liberal democracy in Newfoundland.
© 2001, Jerry Bannister