Detailed studies of how the 18th century legal system functioned in practice await archival research. The few available studies are confined to senior undergraduate essays at Memorial University of Newfoundland and concentrate on the criminal jurisdiction. They sketch in broad tantalizing strokes a judicial system based on the activities of magistrates/justices of the peace sitting in Sessions Courts and hearing cases of all sorts and description year round. By the 1780's the governor's surrogates sat with them providing speedy, summary and inexpensive justice in the out-ports. The system appears to have been accessible and resorted to by the common people. In the absence of lawyers, and of judges with legal training, it was informal. Except for capital offenses, presumably the exclusive domain of Oyer and Terminer, it was summary. The usual penalty was a fine or forfeiture. This was preferred for several common-sensical reasons. Most outports lacked facilities for incarceration. Where they existed, they were confined, cold, barren and uncomfortable, reason enough for the guilty to prefer a fine. Since the successful plaintiff was responsible for the costs of imprisoning his unlucky adversary, a fine was to be preferred, especially after 1788 when he was required to split the proceeds of the fine with the Crown.³² The Sheriff, who had to absorb the prison charges if the successful plaintiff did not, also preferred a fine: one keeper over 15 years found himself out of pocket £900. Finally, the community itself had reason to prefer fines, provided that the guilty could pay. In the event that the latter was unable to meet the court's costs, the local magistrate maintained a census list of all residents from which he would assess each master two pence for each of his servants. If that was insufficient the charge would be apportioned among the local masters- a sort of municipal poll tax. Court costs, at least down to the Act of 1788, were the sole source of financing the justice system. Since the British Treasury provided nothing and judges and sheriffs had to be paid, there was little or nothing available for capital expenditure. The cost of a new court house and gaol in St. John's in 1786 was estimated at £1080. It was not proceeded with.

An essential ingredient of popular support was that justice was seen to be done. Whatever the legal skills of the parties, unrepresented by counsel, due process appears to have been followed. This was important in the court of Oyer and Terminer where the consequences of guilty verdict precluded a summary approach. Two or three weeks before its (still annual?) sitting five to seven "commissioners" were named to serve as judges by the governor who set a date for the session, always in September or October. Presumably this was scheduled so as not to conflict with the fishery but before the onset of winter, given the hazards of travelling to St. John's from distant parts. Trials lasted up to two days and the docket rarely exceeded two cases. A Grand Jury of 24 men handed down the indictment and examined witnesses for discovery. The resulting record was signed by a justice of the peace or several respectable citizens. The testimony of witnesses not available for trial was entered by this means, though whether this included absence for any cause other than death is unclear. At discovery, hearsay was excluded, after which the parties submitted pleadings to the court.

At trial a Petty Jury of 12, for which members of the Grand Jury were ineligible, was sworn. It questioned the witnesses. Having heard enough the jurors withdrew under the care of the bailiff who was sworn "to keep them without meat, drink, candle or lodging or suffer any son [one] to speak unto them" until they had agreed on their verdict. The foreman announced the verdict, the courtroom was cleared, the commissioners deliberated, the court reconvened and penalty was pronounced. The Governor might recommend a pardon or reprieve to London. Again, it is unclear if he had entire discretion or whether the court had a role here. Recommendations to the Privy Council adverted to the qualities of character and citizenship of the guilty. The liberal use of the Governor's power in light of the wide incidence of capital offenses and the delays involved in an overseas reference probably explain why London deferred to his views in almost every case³³ and the fact that only a third of capital sentences were carried out. The whole appears a neat, internally coherent and functional scheme in which the actors-judges, jury, bailiff and sheriff--are familiar. The notable absences to a modern eye are prosecutor and defense counsel, but the system appears to have functioned satisfactorily without them.