While many crimes carried a capital penalty, a lesser sentence was often substituted. Guilty of the manslaughter, while drunk, of John Kelly, Lawrence Kneeves of Harbour Main was branded on his right hand with an "R" [for "Regina"?], forfeited his goods and chattels, and paid court costs. Of 19 guilty of theft to a value of £4 or more, one was actually hanged. These crimes against property were usually punished by whipping, branding and/or deportation. In 1776 Patrick Knowlton received successively 20 lashes by the public whipper in the public square, 20 in front of his victim's house, and 20 more at Admiral's Beach whence he was deported having assumed court costs and forfeited his goods. Newfoundland was distinct in permitting deportation back to the Mother Country, although it seems to have occurred in the early colonial experience of Nova Scotia. Since the offender was by this time without resources the cost of deportation presumably fell to a public authority, perhaps to the justice system or to the Royal Navy.

Transportation added another element to a system nicely tailored to local needs: deterrence, public participation, ridding the community of a disruptive element and, perhaps above all, economy. The harsh principles of the law were tempered, as Douglas Hay would have it in the English context, with majesty, justice and mercy. The latter two have been spoken to. On the majesty of the law as reflected in dress, pomp and ceremony, and court procedure, we know little. But claims about the impersonal nature of the English criminal law--"execution was a fate decreed not by men, but by God and Justice"-- find a nice echo in Newfoundland. According to a jury of Oyer and Terminer in 1780, the guilty had transgressed the guidelines laid down by divinity and the King by acting against the "Peace or our Said Sovereign Lord, the King, His Crown and Dignity." In exercising the power of reprieve the King played the impersonal and even-handed deity: "both the god of wrath and the merciful arbiter of men's fate."³⁴ Despite parallels between the systems in Great Britain and in Newfoundland there were obvious differences. Newfoundland did not offer benefit of clergy; her class system and governance was very different; the economy was sea rather than land based, with important implications for transience; and there was no private ownership of land. In the end these may appear differences of degree rather than substance. Questions about the legal mentalité that immigrants and seasonal workers brought with them from the West Country and from southern Ireland offer intriguing possibilities for research.

Summary justice sufficed for relatively simple cases involving seamen and fisherman, masters and settlers. But the migratory fishery was expiring. After 1783 it was increasingly Newfoundland-based, and West Country firms were widely represented. The residence of merchants, whose dealings were "many-sided, complex and involved very large sums of money" made it only a matter of time before someone would challenge the jurisdiction of the courts. Richard Hutchings' successful appeal of a fine levelled in Newfoundland, in 1787, noted above, caused havoc. Between 1788 and 1791 over 1200 writs for debt collection were issued and the parties grew desperate for a quick legal decision. Only Oyer and Terminer continued to function. Governor Elliot's encouragement of the Court of Vice-Admiralty to hear civil cases was coolly received, though the Court did consent to act as arbitrator upon the agreement of the parties. By the time his successor, Governor Milbanke, arrived the situation was desperate: the fishery was down, bankruptcies rampant and debts that were contested could not be collected. On the advice of Aaron Graham, secretary to four governors between 1779 and 1791, Milbanke interpreted his instructions to permit him, in this emergency, to create a Court of Common Pleas (in English usage exclusively a civil court) with a civil and criminal jurisdiction exercised by three judges and a jury. The merchants opposed it and the legal advisers to the Crown ruled it illegal.³⁵

Nevertheless it limped along, staffed by Graham, customs inspectors and naval personnel, while the Governor dispensed his advice to parties, a holdover of the judicial function exercised by his office earlier in the century. With the statutory system undermined by later developments which themselves had been ruled illegal, and faced with an increasing population fuelled by Irish immigration, the decline of the migratory fishery and the emergence of the seal fishery, and changes in imperial policy and diplomacy, policy makers, however reluctantly, had to act. Still in accordance with government policy which opposed settlement, the Board of Trade accepted the Attorney General's proposal that prerogative writ be employed to create a Court of Civil Judicature of one English judge and two assessors appointed by the governor to hear cases during the summer. But even this was ruled unconstitutional by the Lord Chancellor. Stalemate appeared to prevail.³⁶