A Cautious Beginning:
The Court of Civil Jurisdiction 1791
by Christopher English and Christopher Curran
Overview
The bicentenary of the establishment of Newfoundland's supreme "court of civil jurisdiction" marks the emergence of a statutory regime from which the present
Judicature Act, court system, jurisdiction, procedures, and officers have
evolved.1 In light of the modest material, demographic, institutional and
experiential base upon which the Act of 1791 was erected, the process of
tailoring and adapting a system of law to new, often unforeseen, demands over
200 years marks a considerable achievement. This essay offers an overview of
the development of the law in Newfoundland which provided the context for the
introduction of the first Judicature Act. In a wider societal and political context,
it is apparent that the Act of 1791 was a considerable step along the path to
colonial status (1824), and to representative (1832) and responsible (1855)
government.
The form of the law under discussion here is that which emanated from
imperial policy makers in London. It comprised prerogative writ (the Crown
speaking through the Privy Council) and statute (the Crown speaking through
Parliament). Together they defined the parameters of Great Britain's
experience in Newfoundland: a migratory and seasonal fishery carried on
predominantly from the English West Country in which the economic interests
of private entrepreneurs complemented the economic, strategic, diplomatic and
defence priorities of the British Crown. Both parties viewed the Island as an
appendage to the coastal and Grand Banks fishery, useful only for shore-based
facilities from which to service a staple crop. Policy makers ignored the
interests and representations of the small but growing settled population in
Newfoundland (3000 residents of European origin in 1689, 7000 in 1750, and
17000, 3000 in St. John's, in 1793).2
Permanent settlement was officially
discouraged as strongly in the 1790's as it had been when statutorily proscribed
a century before, in 1699.3 But it had persisted during the 18th century,
giving rise to an ad hoc legal regime which mixed royal declaration and local
custom. In its time it sufficed, until 1787 when it was judicially declared to
contravene the statutory regime which had regulated the fishery since 1699.
The Judicature Act of 1791 was the result, official recognition that increased
settlement resulting from the transition from a migratory to a Newfoundland
based fishery demanded a new judicial regime.
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