A Cautious Beginning: The Court of Civil Jurisdiction 1791
by Christopher English and Christopher Curran

Rule of the Fishing Admirals


Against these priorities, settlement was deemed extraneous, expensive and compromising. Although some people remained in isolated coves after the failure of the proprietary colonies and at the end of each fishing season, they were vulnerable to the arbitrary rule of fishing admirals in the summer, official indifference, the vagaries of European wars and peacemaking, a fluctuating fishery and the ever-present reality of cold, fog and wind in a land largely barren of agricultural potential. The population grew slowly when it grew at all. Settlement was not only discouraged: it was difficult and, by 1699, illegal.

Discourse and Discovery of Newfoundland
Frontpiece, Discourse and Discovery of Newfoundland by Richard Whitbourne. First published in 1620, the work recounted Whitbourne's own experiences in Newfoundland.
Courtesy of the Provincial Resource Collection, Newfoundland Section, St. John's City Libraries, St. John's. (971.8 W58 NR rare book).
Larger Version (48 kb).
Frontpiece, Discourse and Discovery of Newfoundland

The legal regime during the two centuries of sustained European contact down to 1792 emanated from the power assigned via charter and prerogative writ to private and corporate entrepreneurs.6 By convention the first fishing captain to arrive in Newfoundland from a British port in a given season became fishing admiral with power to allocate fishing berths and shore stations and to maintain law and order in his particular cove or stretch of coast. Guidelines issued by the King's principal council (the Court of Star Chamber comprised of his Privy Council sitting with the common law judges and, probably, parliamentary peers) in 1633, provided for the protection of fishing facilities, the preservation of forests (for fuel, boat building and the construction of fishing stages and flakes), and the safeguarding of public morality by suppressing taverns and mandating Sunday observance. The jurisdiction of the fishing admirals was limited only by the requirement that those accused of the capital crimes of murder, or theft to a value of 40 shillings, be brought to England for trial, accompanied by two witnesses. In the event few witnesses were willing to lose a fishing season travelling at their own expense to see justice done in England and capital crimes ("reserved cases") may have been settled via rough justice of the masthead variety, though the evidence here is anecdotal or the product of editorializing. Judge Prowse, native born and resident, presentist in outlook and values, and a nationalist and unsparing critic of the regime of the fishing admirals, pictured one

clothed, not in the dignity of of rice, not in the flowing judicial robes, not in the simple and sober black of the police magistrate, but in his ordinary blue flushing jacket and trousers . . . besmirched with pitch, tar and fish slime . . . The sacred temple of law and equity was a fish store, the judicial seat an inverted butter firkin. Justice was freely dispensed to the suitor who paid the most for it ...

Sometimes, alas! the dignity of the Bench was diminished by the sudden fall of the Court prostrate on the floor, overcome by the . . . effects of new rum and spruce beer.7

Prowse's vignette is undocumented, although he had access to previously unresearched archives, and probably apocryphal. A high Victorian lawyer and judge, he echoes the claim of his respected British contemporary A.V. Dicey that statute and high judicial decisions are the purest emanations of the law. Such assumptions are no longer so widely shared.8 And a modern commentator might also question the difference between Prowse's inference of bribery and a modern suitor's access to justice on the basis of an ability to pay lawyers and to sustain the costs of private judicial actions.







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