A Cautious Beginning: The Court of Civil Jurisdiction 1791
by Christopher English and Christopher Curran


The bicentenary of the establishment of Newfoundland's supreme "court of civil jurisdiction" marks the emergence of a statutory regime from which the present Judicature Act, court system, jurisdiction, procedures, and officers have evolved.1 In light of the modest material, demographic, institutional and experiential base upon which the Act of 1791 was erected, the process of tailoring and adapting a system of law to new, often unforeseen, demands over 200 years marks a considerable achievement. This essay offers an overview of the development of the law in Newfoundland which provided the context for the introduction of the first Judicature Act. In a wider societal and political context, it is apparent that the Act of 1791 was a considerable step along the path to colonial status (1824), and to representative (1832) and responsible (1855) government.

The form of the law under discussion here is that which emanated from imperial policy makers in London. It comprised prerogative writ (the Crown speaking through the Privy Council) and statute (the Crown speaking through Parliament). Together they defined the parameters of Great Britain's experience in Newfoundland: a migratory and seasonal fishery carried on predominantly from the English West Country in which the economic interests of private entrepreneurs complemented the economic, strategic, diplomatic and defence priorities of the British Crown. Both parties viewed the Island as an appendage to the coastal and Grand Banks fishery, useful only for shore-based facilities from which to service a staple crop. Policy makers ignored the interests and representations of the small but growing settled population in Newfoundland (3000 residents of European origin in 1689, 7000 in 1750, and 17000, 3000 in St. John's, in 1793).2 Permanent settlement was officially discouraged as strongly in the 1790's as it had been when statutorily proscribed a century before, in 1699.3 But it had persisted during the 18th century, giving rise to an ad hoc legal regime which mixed royal declaration and local custom. In its time it sufficed, until 1787 when it was judicially declared to contravene the statutory regime which had regulated the fishery since 1699. The Judicature Act of 1791 was the result, official recognition that increased settlement resulting from the transition from a migratory to a Newfoundland based fishery demanded a new judicial regime.

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