A Cautious Beginning: The Court of Civil Jurisdiction 1791
by Christopher English and Christopher Curran
Palliser's Act, 1775:
The Statutory Counter-Offensive
Palliser's Act assumed that the provisions of 1699 were still viable, for it was titled "An Act for the encouragement of the fisheries carried on from Great Britain and for securing the return of the fishermen . . . at the end of the fishing season". The twin bases of English policy in Newfoundland unchanged: its fishery provided "the best nurseries for able and experienced seamen, always ready to man the [R]oyal [N]avy when occasions require", and remained exclusively British, seasonal and migratory (s. 1). An elaborate system of bounties was introduced (s. 1) and extended to the whaling industry (s. 3). To prevent over-wintering, masters were to keep back the value of a return passage up to 40 shillings (s. 13), and to pay over only half of a man's wages in cash. The remainder was payable in "money, or in good bills of exchange . . . either in Great Britain or Ireland"(s. 14). The right to dry fish was reserved to British subjects arriving from Europe (s. I ), which seemed to exclude settlers entirely from the fishery.
The Act also extended the protection offered seamen and their wages in 1699. Provided he did not over-winter each was to have a written contract (s. 14). His wages established the foremost lien on "all the fish and oil . . . taken . . . by . . . persons . . . who . . . employ . . . seamen and fisherman" (s. 16). In return, the men were to fulfil their side of the contract. Anyone absent without leave or neglectful of his work would forfeit two days' pay for every day missed. Five days' absence comprised desertion and resulted in the forfeiture of the season's wages except for the passage home (s. 17). He might then be arrested and tried, and, if guilty, publicly whipped and deported.
Finally, the Act differed from its predecessor in recognizing the modifications made via prerogative writ since 1729. Whereas King William's Act had stipulated a police and judicial power exercised by fishing admirals alone, with an appeal to the naval commander, that regime was supplanted. Arrest warrants now issued from the governor or his surrogates, the Court of Vice-Admiralty or the justices of the peace. And those same Courts had sole jurisdiction to enforce the Act. Only the Courts of Session were excluded from enforcing the provision of s. 17 concerning seamen who were absent without leave. All disputes over wages and infractions of s. 17 were to be settled locally by the Sessions Courts or that of Vice-Admiralty as appropriate. By s. 34 an appeal lay from the Newfoundland Courts to the British Admiralty Court or Privy Council.
Presumably, since they were not mentioned, disputes in contract or tort, not involving masters or seamen and fishermen, remained, as implied by King Williams's Act, with English county courts. On the analogy of Oyer and Terminer, itself the product of prerogative writ and not mentioned in the Act, and in light of the recognition of four sources of local judicial authority, one might argue that matters not falling within the 1699 statute now fell to the local courts. The Act was exclusively concerned with the fishery; judicial issues not within its ambit presumably remained undisturbed. Thus, while Palliser's Act reiterated the value and imperial rationale underlying a migratory seasonal fishery, it impliedly recognized the legality of the four courts of civil jurisdiction which had emerged since 1728 as far as they limited themselves to hearing matters - those of the fishery - stipulated by the Act. The Acts which followed simply refined that of 1775 with regard to bounties (s. 1), the jurisdiction27 of the Vice-Admiralty Court (s. 18), penalties for unauthorized absence (s. 17) and desertion and non-compliance with court orders, or took (into account changes to the Empire as a result of the United States' independence.28