A Cautious Beginning: The Court of Civil Jurisdiction 1791
by Christopher English and Christopher Curran
The Judicature Act, 1791:
A Framework for the Future
We may now hail the legislative initiative which this essay celebrates, but contemporaries were notably subdued. Though circumstances in Newfoundland demanded haste, caution ruled at Westminster. The new Act (31 Geo III c. 29) would take effect in June 1791 for one year and until the conclusion of the next parliamentary session. Recognizing that the Acts of 1775 and 1786 in their
provisions . . . for the administration of justice in civil cases, are insufficient, and it is highly expedient that a court of civil jurisdiction, having cognizance of all pleas of debt, account contracts respecting personal property, and all trespasses against the person, goods or chattels, should be established . . . for a limited time
the Act of 1791 created a court "with full power and authority to hear and determine" such pleas (s. 1). Like the Attorney-General's previous proposal the court was comprised of a presiding judge and two assessors, one of whom would sit with the "chief judge" (s. 1). Since it had "all such powers as by the law of England are incident and belonging to a court of record" (s. 1), the question of how English law would mesh with Newfoundland practice was bound to arise.
Actions would be brought in writing and summons issued for causes under £5. Arrest, with "attachment of the [the accused's] goods and debts, or of his effects in the hands of any person" (s. 2) might be employed for causes over £5. The Court could execute judgment and award costs via "levy and sale of the goods and chattels, or arrest of the person" (s. 2). In cases over £100 notice of appeal, accompanied by a surety, filed within 14 days would stay execution pending appeal to the Privy Council (s. 3). By s. 4, during the Governor's residence disputes over seamen's wages were reserved for the new court. The final clause of this brief Act required actions to be brought within two years (s. 6). Here was no grand initiative. The Act was specifically restricted (s. 1) to amending 15 Geo. III c. 31, s. 18 [Palliser's Act, 1775] which had given jurisdiction over seamen's wages to the Courts of Session and Vice-Admiralty. And yet the aim of the court (s. l ) seemed to extend further. The main lines of Palliser's and King William's Acts were, it appeared, to remain in place. The weight of inherited law and policy on the official mind was not lightly to be discarded.