A Cautious Beginning:
The Court of Civil Jurisdiction 1791
by Christopher English and Christopher Curran
King William's Act, 1699:
The Framework for the Rule of Law
The statute 10/11 William III c.25 would provide the determining juridical
regime for Newfoundland through the 18th century. For John Reeves in 1793,
legal adviser to the Board of Trade, author of the report which gave rise to the
Judicature Act of 1791, Chief Judge seasonally based on the Island in 1791
and 1792, and Newfoundland's first, and still influential, historian, the Act of
1699 was a disappointment and a missed opportunity.10
But he was right in describing it as "little more than an enactment of the rules, regulations and constitution that has mostly prevailed there for some time".11
That is precisely what it was intended to be, as is evident in six themes which
distinguish "King William's Act".
First, this "[A]ct to encourage the trade of Newfoundland" codified the sporadic
pronouncements of the royal prerogative as applied by chartered companies
and the fishing admirals over the preceding century. Proclaiming the freedom
of all British subjects to trade, fish, and erect facilities to process the catch and
repair boats and gear on shore, it reiterated long-standing prohibitions against
destroying shore facilities (s. 1), over-wintering (s. 3), and finding trees or firing
woods except for necessary fuel, ship repairs and construction (s. 12). It
repeated the requirement of 1633 that every fifth crewman be a "green man" (s.
10) and further stipulated that each ship carry "two fresh men [who had made no more than one previous voyage] in six" (s. 9). Reaffirmed were Lord's day observance, prohibitions against the sale of alcohol (s. 16) and the taxing of fish (s. 17), and the authority of fishing admirals to allocate fishing grounds and inshore facilities (s. 4) and to settle local disputes (s. 15).
Second, three provisions signalled a new legal role for the state in the fishery.
The authority of the fishing admirals was no longer absolute since an appeal
from their decision now lay to the captain in charge of the naval station (s. 15).
This complemented the provision that "for the more speedy and effectual punishment of . . . offenses, . . . robberies, murders, felonies" and other capital crimes would now be tried by courts of Oyer and Terminer in any English county (s. 13). Finally, "in order to preserve peace and good government amongst the seamen and fishermen" the fishing admirals were responsible for enforcing the provisions of the Act (s. 14). This gave them a police power for which they were accountable. Each was to keep a seasonal journal of the ships, stages and seamen in his harbour or jurisdiction and forward it to the Privy Council upon his return to England. Since s. 14 made no mention of merchants or Adventurers they presumably fell outside the Act's ambit and would continue to resort to English courts for redress.
Third, the Act recognized the existence, though not the legality, of settlement.
Shore premises which since 1685 had been detained to private use,
distinguished from a use consequent upon pursuit of the fishery, should by s. 5
be given up. The intent appears to have been to settle who had the use of what
premises since captains had taken to leaving a crewman to over-winter in order
to claim premises the following season. The cut-off date of 1685 implicitly
recognized the validity of non-fishery uses of the land predating that year and
sustained thereafter. By "use" no title to property was intended. By s. 6 no
shore premises were to be taken up until all demands of the fishery had been
satisfied. Once achieved, however, there would presumably remain no bar to
private individuals settling on the land. Finally, it was recognized that those who
had taken up or built premises since 1685 which were not claimed by the
fishery "may peaceably and quietly enjoy same . . . without disturbance"(s. 7).