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



Whether or not this was the rationale, so it transpired. The failure of King William's Act to stipulate penalties, and the fact of year round settlement, led the Board of Trade, established as a government ministry in 1696 to oversee colonial trade and governance, to consider according sea captains a land command and police and judicial powers to hear and settle disputes in 1708. By 1711 the inhabitants of St. John's were making provision to police the town by meeting in "assemblies [which] were somewhat anomalous, a kind of legislative judic[iary], and executive, all blended into one". Increasingly requests for clarification of s. 7 of 1699 were made and it was conceded that it gave an estate for life, but never fee simple.123 Meanwhile it was becoming apparent in London, as the long series of wars with France ran down, that provision would have to be made for Placentia, transferred by France to England at Utrecht in 1713.

The response to these demands lay not in statutory reform but in the issuance of decrees by the King in Council. Again, it is unclear why this means was preferred. Was it intended to fill the gap opened by the absence of a judicial administration during the winter? Did it offer a means for the resolution of private disputes in tort or contract? Did it permit ad hoc adjustments to the statutory regime without doing violence to its principles? Was it a useful way of filling gaps in the statute which became apparent with experience, which permitted trial balloons, and put off the day of parliamentary scrutiny and debate? Did it deny a ready target to critical West Country merchants who wished neither settlement nor governance in their economic domain? Was it a response to the widely claimed, but less often documented, harshness and variability of justice dispensed by the fishing admirals?

We may be posing a series of questions which were not asked by contemporaries. Harry Arthurs has persuasively argued that the primacy of statute and judge-made law was a construct of the late 19th century, owing much to the advocacy of commentators like Dicey. The widely held assumption that "the 'rule of law' . . . posits that everyone is subject to the same law, law that is enacted by parliament and authoritatively expounded . . . by the superior courts" is of relatively recent vintage. Outside the legal profession it may still not be widely held: "people may wish to order their lives by a system of law that judges neither created nor countenanced".14 Where we perceive anomaly or contradiction, contemporaries may only have discerned another, parallel, historically sanctioned way of making law. For whatever reason, in enforcing the Act of 1699, the Board of Trade proceeded hesitantly and pragmatically, preferring to force new wine, as in making provision for the collection of private debts, into the old statutory bottle. Further, the Board proceeded to win a series of orders in council from the Privy Council, of which it was, in effect, an adjunct. These resulted in the emergence of a practical, informal, indigenous legal system which effectively met Newfoundland's local legal needs during the 18th century. But they were illegal to the extent that they were incompatible with King William's Act of 1699, reaffirmed in 1775 and 1786, which provided only for a seasonal exercise of judicial authority in Newfoundland. The successful challenge to the Sessional Courts in Newfoundland by Richard Hutchings before the Devonshire Quarter Sessions at Exeter in 1787 severely compromised the local judicial system15 and undoubtedly contributed to the emergence, noted below, of the Judicature Act of 1791.








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