This part of the Silk Robes and Sou'westers web site contains complete reproductions of eight key primary documents. They span almost 200 years - from the first Western Charter in 1634 to the Royal Charter of 1825 - and provide the means to explore the increasing complexity of law and the courts as Newfoundland was transformed from a seasonal fishing station to a permanently settled colony. By including full copies of these sources in this web site, it is hoped that readers will be better able to make independent evaluations of important issues, such as whether settlement was actually illegal, or whether statute law significantly limited property rights.
The documents cover the main periods of constitutional development outlined in the History of Law and the Courts section. The Western Charter of 1634 and King William's Act of 1699 formed the framework of law prior to the appointment of a naval governor and civil magistrates in 1729. The Western Charter was essentially a modified written record of the local customs which had long governed the migratory fishery: its clauses dealt with minor offences, such as drunkenness, and it gave the fishing admirals primary responsibility for settling local disputes. The Act to Encourage the Trade to Newfoundland, known as "King William's Act," codified many of the Charter's provisions. It confirmed the tradition that the master of the first English ship to arrive in a harbour after March 25th was by right the admiral of that outport for the upcoming fishing season. Admirals had the choice of the best fishing rooms and were empowered to adjudicate disputes over the possession of other fishing premises. King William's Act stipulated that the naval commanders of the warships sent to patrol Newfoundland each summer could serve as appeal judges to the fishing admirals' decisions. The Act reflected imperial policy: the British government viewed the island not as a colony but, rather, a seasonal fishing station to be used solely for the benefit of the West of England fishery.
The documents from Governor Osborne's Commission of 1729 to the Judicature Act of 1792 reflect the system of naval government which dominated the 18th century. As the first naval governor, Captain Henry Osborne was given a commission formalizing the duties of the commodores who commanded the Newfoundland station. It was normally issued only once, at the beginning of the governor's concurrent appointment as commodore (which was usually a three-year post), and any amendment required a new commission to be issued by royal prerogative under the Great Seal. The commission empowered the governor to constitute and appoint justices of the peace, who were to hold quarter sessions according to English law. It also placed Placentia under the governor's jurisdiction and authorized him to build jails and court houses throughout the island.
The Act for the Encouragement of the Fisheries Carried on from Great Britain, passed in 1775 and known as "Palliser's Act," revised the written regulations governing the cod fishery but did not seriously alter the island's system of governance. Named after Captain Hugh Palliser, who was governor from 1764 to 1768, the Act codified existing governors' decrees on wages, debt, contract, and vagrancy. While recognizing the servants' right to a lien on their masters' fish catch, it criminalized breach of contract, providing for the corporal punishment of disorderly servants, as well as stiff penalties for neglect of duty or desertion. Palliser's Act confirmed the judicial role that civil magistrates had performed for over a generation: it empowered justices of the peace to hear and determine any wage dispute or offence committed by masters or servants against its provisions. As a result, statutory law began more closely to reflect local practices that had long been based on common law and local customs.
In response to a crisis in the customary system of surrogate courts in the late 1780s, the British government moved to create a new judiciary. When the Judicature Act was passed in 1791, it provided for a temporary court of civil jurisdiction. The Act was limited to one year, during which John Reeves, the newly-appointed Chief Judge, would assess the requirements for the future administration of law. In 1791-92 Reeves prepared two reports on Newfoundland's legal system, in which he sketched plans for practical reforms, and his recommendations formed the basis of the island's constitution for the next 30 years. The Judicature Act of 1792 created a supreme court for both civil and criminal jurisdiction, and entrenched legally the system of surrogate courts that had long operated customarily. The supreme court and surrogate courts were to have a monopoly on civil actions, save maritime causes (to be heard in the Vice-Admiralty Court) and wage disputes (which could be heard in Courts of Sessions or before two justices of the peace). The Act was for one year only and was renewed annually until 1809, when the judicial system was made permanent in statute law. As these statutes illustrate, the British government tailored formal law to suit the available legal resources, leaving the structure of naval government basically intact well into the 19th century.
The last two documents - the Judicature Act of 1824 and the Royal Charter of 1825 - were byproducts of the struggle for reform which gripped Newfoundland in the early 19th century. Fueling these legal developments were the massive social and economic changes which Newfoundland experienced during the French Revolutionary and Napoleonic Wars: from 1793 to 1815 the island's fishery transformed into a largely resident operation; massive immigration boosted the population dramatically; and a local press emerged. A growing reform movement demanded an end to naval government and the establishment of official colonial status, regular courts of civil judicature, and local institutions of political representation.
The Judicature Act of 1824 represented the reformers' first major victory. It abolished the surrogate courts, created a system for making land grants, and provided for a charter of incorporation to make town bylaws. With the end of the surrogate courts, Newfoundland shed one of the principal features of naval rule: having sat as judges since the 17th century, naval officers finally lost their prerogative to administer law. In 1825 the British government issued a Royal Charter to institute the measures outlined in the Judicature Act. It granted Newfoundland official colonial status, a revamped supreme court, and an Executive Council. It also made the governorship a civil appointment, no longer under Admiralty jurisdiction. With the implementation of the Royal Charter in early 1826, the era of naval government had come to an end.
© 2001, Jerry Bannister