A Cautious Beginning: The Court of Civil Jurisdiction 1791
by Christopher English and Christopher Curran
1. 31 Geo. III, c. 29 : An Act Establishing a Court of Civil Jurisdiction in the Island of
Newfoundland, for a Limited Time. On the continuity and adaption of the Act since 1791 see,
Newfoundland Law Reform Commission, Legislative History of the Judicature Act, 1791-1988 (1989).
2. Great Britain. Colonial Office [C.O], 194, 21, 23, 49, 64, 70, 80, 81, Office of the Colonial
Secretary, "Abstract of Census and Return for the Several Electoral Districts of Newfoundland",
1793-1830, Maritime History Archives, Memorial University of Newfoundland [hereafter
3. 10/11 William III c. 25 [King William's Act, 1699]; 15 Geo. III c. 31
[Palliser's Act, 1775].
4. The indispensable study of official policy and the migratory fishery
remains Keith Matthews, A History of the West of England-Newfoundland Fishery,
D. Phil. thesis, Oxford University, 1968.
5. Keith Matthews, Lectures on the History of Newfoundland, 1500-
/830 (1973) at p.35; F.F. Thompson, The French Shore Problem in
Newfoundland: An Imperial Study (1961).
6. The 1615 instructions issued to Captain Richard Whitbourne by the
Court of Admiralty to impanel juries, make inquiry on oath, and regulate abuses
in the fishery are oft-quoted and as quickly passed over since he attempted to do
so during one season only in the north-eastern harbour of Trinity. John Reeves,
History of the Government of the Island of Newfoundland (1793) at pp. 5-8.
7. D.W. Prowse, History of Newfoundland from the English, Colonial and
Foreign Office Records (1895) at p. 226.
8. H.W. Arthurs, "Without the Law". Administrative Justice and Legal
Pluralism in Nineteenth Century England (1985).
9. Reeves, supra n. 6 at pp. 14-20.
10. Reeves, supra n. 6 passim; Peter Neary, "John Reeves", Dictionary of Canadian Biography, [hereafter DCB] VI (1987) at pp. 636-7. On the dominant interpretative framework within which historians and commentators, taking their cue from Reeves, placed Newfoundland history down to the 1960's see Keith Matthews, "Historical Fence Building: A Critique of Newfoundland Historiography", Newfoundland Quarterly, 74, 1 (1978) at pp. 21-30. Prowse, supra n. 7 at p. 225, lamented: "At this distance . . . we cannot understand how any intelligent minister could have propounded such a Bill; but William's Government was notoriously corrupt. It is only through the strong influence of Devonshire and bribery that we can explain . . . such a measure".
11. Reeves, supra n. 6 at p. 31.
12. Campbell v. Hall (1774), 9 ER 848.
13. Reeves, supra n. 6 at pp. 35, 53, 55-63.
14. Arthurs, Without the Law, at pp. x, ix. The story of the
emergence and functioning of an informal customary system for maintaining social
peace and resolving individual disputes must, like the separate but parallel
regime of native aboriginal law, be deferred for discussion in another forum.
15. I5 Geo. III c. 31; 26 Geo. III c. 26 . Keith Matthews, "Richard Hutchings", DCB, v (1983) at pp. 443-4.
16. Paul O'Neill, The Story of St. John's, Newfoundland
(1975-1976), II. p. 533. The centres were: Placentia, St. John's, Carbonear, Bay
Bulls, St. Mary's, Trepassey, Ferryland, Bay de Verde, Trinity, Old Perlican and
17. Reeves, supra n. 6 at pp. 154-5; Osborn to the Duke of
Newcastle, 14 October 1729 in Prowse, supra n. 7 at p. 287.
18. John Reeves, Second Report on the Judicature of Newfoundland to
Rt. Hon. Henry Dundas, 1792, Great Britain, Public Record Office, Board of
Trade [hereafter PRO.BT.], 1/8, MHA.
19. Reeves, supra n. 6 at p. 73; Prowse, supra n. 7 at
20. Reeves, supra n. 6 at pp. 112-13, 155.
21. Governors Waldegrave (1799), Barton (1801) and Gower (1805) recommended the
deportation of dieters and were assiduous in preventing the exploitation of waterfront premises in
St. John's for non-fishery purposes. Linda Parsons, "Dieters" in J.R. Smallwood, ed.,
Encyclopedia of Newfoundland and Labrador, I (1981), p. 623.
22. Ibid.; Keith Matthews, "The Class of '32: The Newfoundland Reformers on the Eve of Representative Government", Acadiensis, VI, 2 (Spring 1977), pp. 80-94; W. S. MacNutt, The Atlantic Provinces (1965), p. 74.
23. Keith Matthews, "The West Country Merchants in Newfoundland" (n.d.), mss. MHA, pp. 4-5.
24. MacNutt, supra n. 22 at pp. 20, 73.
25. Reeves, supra n. 6 at pp. 113, 127.
26. Prowse, supra n. 7 at p. 319.
27. 26 Geo. III c. 26 in 1786 extended the bounties (s. 1), and removed the Vice-Admiralty Court's jurisdiction to hear disputes on seamen's wages "because of the unfavourable impressions . . . made respecting the practice . . . in that court" (Reeves, supra n. 6 at p. 156). It stiffened the penalties against seamen for unwarranted absences to five days wages for each day absent (s. 6) and provided for the arrest of those deserting to the employ of foreign states (s. 12). Deportation or, if the offender was neither English nor Irish, imprisonment for up to 12 years might follow (s.13). 29 Geo. III c.53  added further regulations for the whale fishery.
28. 28 Geo. III c.35 in 1778 updated the provisions of the treaties of Utrecht (1713) and Paris (1763) to take account of the Treaty of Versailles (1783). St. Pierre and Miquelon were ceded fully to France. France's access to the French Shore was reconfirmed but given new geographical limits. Permanent settlements created by French fishermen on the Shore were to be removed, as were English fishing facilities erected there.
29. Reeves, supra n. 6 at p. 136; Prowse, supra n. 7 at p. 319.
30. Olwen Hufton, The Poor of Eighteenth Century France (1974) notes that a fifth of the French population was probably landless and propertyless, a vast, volatile and transient element which might be the scourge of the more fortunate. G. Deir, "A Study of Capital Crimes in Newfoundland, 1750-1800" (St. John's, n.d.), p. 12, MHA.
31. Brenda Griffin, "Law and Order in Newfoundland in the Eighteenth Century (1741 -1792)"
32. 28 Geo III c. 35, s. 1. .
33. Deir, supra n. 29 at p. 8. He found only one case in which London balked, in 178O, when
Michael Darrigan was guilty of the vicious murder of Cornelius Gallery.
34. Douglas Hay, "Property, Authority and the Criminal Law" in D. Hay et al., eds., Albion's
Fatal Tree (1975), pp. 26, 29; Deir, supra n. 30 at p. 6, citing the Governor's report to the
Colonial Secretary, 1780.
35. Graham may have been an English Lawyer. He returned to England in 1791 and was a
persuasive witness in the parliamentary committee hearings which led to the Judicature Act,
1792. Calvin Evans, "Aaron Graham", DCB, V, at p. 361. On Governor Mark Milbanke see
Frederic F. Thompson, ibid., at pp. 595-6.
36. Lord Granville spoke for the government in 1789: "Newfoundland is in no respect a British colony and is never so considered in our laws. On the contrary, the uniform tenor of our laws respecting the fishery there . . . goes . . . to restrain the subjects of Great Britain from colonizing that island". George Story, ed., Christmas Mumming in Newfoundland (1969) at p. 18. Matthews, supra n. 4 at pp. 555-87. He overlooks 31 Geo. III c. 29.
37. John Reeves, "Report on the Judicature of Newfoundland". December 1791. PRO.BT., 1/8,
MHA; Matthews, supra n. 4 at p. 567.
38. Matthews, supra n. 4 at pp. 752-3.
39. Lake Doyle's Servants v. Receiver of the Voyage (1821),
1 Nfld. L.R. 263.
40. The Board of Trade issued "A Table of Fees of the Newfoundland Court in 1792 prorated in accordance with the value of the action pursued", PRO.BT, 1/2, MHA.
41. 49 Geo. III. c. 27 . The amendments provided: (1) that the civil jurisdiction of the
courts be extended to cause of action arising in Great Britain or Ireland; (2) that either party to a
civil action over 40s. could demand a jury trial; (3) that the Chief justice decide the mix of
English law and Newfoundland judicial custom prescribed by s. 1 of the Judicature Act. In this
form the Act was reissued as part of the Royal Charter which bestowed colonial status on
Newfoundland in 1824: 5 Geo. IV. c. 67. See Edward M. Archibald, ed., Digest of the Law of
Newfoundland (including the Judicature Act, Royal Charter, Rules and Orders of the Supreme
and Central Circuit Courts, Abstracts of all Laws in Force, Tables of Acts Repealed, Executed,
Expired . . .) (1847).
42. Reeves, supra n. 18.
43. Neary, supra n. 10; Keith Matthews, "Richard Routh", DCB, V, 725; J. M. Bumstead and
Keith Matthews, "Thomas Tremlett", DCB, VI, 784-5; J. M. Bumstead, "Caesar Colclough",
ibid., VI, 160-64.
44. Matthews, supra n. 4 at p. 599, 592, 598, 594; MacNutt,
supra n. 22 at 140.
45. This was, in effect, legitimated in retrospect in 1811 by "An Act for taking away the public use of certain Ships Rooms by which it shall be lawful for the same to be granted, lent and possessed as private property . . . anything in [10/11 William III, c. 25] notwithstanding" (51 Geo III c. 45, s. l). Prowse, supra n. 7 at p. 386, notes that the result was the issuance of 30 year leases.
46. David Davis, "James Simms", DCB, IX (1966), pp. 507-8; Diane Janes, "Wiliam Dawe",
supra n. 21 at p. 600.
47. 49 Geo. III c. 27 , 5 Geo. IV c. 67 , 23 William IV c. 78 .