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

Authors' Preface

The development of the Court system and other apparatus necessary for the administration of justice occupies a place of pivotal importance in Newfoundland history. Furlong C. J. recognized this when, in speaking of the Judicature Act of 1824, he observed:

The jurisdiction that was granted the Court was to equip Newfoundland with all the judicial apparatus necessary for a civilized society and it provided a powerful impetus to the growth of that society after several centuries of official discouragement of permanent settlement.

This obiter dicta from Bursey v. Bursey (1966), 51 M.P.R. 256 at 258, nicely captures not only the significance of the Act of 1824 for the subsequent development of Newfoundland's system of judicature but also situates the Act and that system within their appropriate historical context. For the Act of 1824 was not without its antecedents. It grew out of a rich indigenous legal system consisting of a curious amalgam of various ingredients. Among the immediate progenitors of 1824 must be reckoned the Court of Civil Jurisdiction of 1791, which Court laid the foundation and set the course for much of what followed.

In Faust, Part I, Goethe has his protagonist say:

What a man has inherited from his forefathers
He must earn in order to possess. 1. 682f.

These lines throw up a challenge for each new generation confronted with the task of eliciting the significance of and appropriating its past. They apply with especial force to the appropriation of Newfoundland's historical legal past where so little systematic work has been done and so much remains to be done. The intent of this essay is to take up that challenge and commence the larger task of the creative appropriation of a past as yet only dimly explored.

In preparing this essay we have had the assistance of many people. We would like to acknowledge the help of the following: Ms. Terresa McIntosh, National Archives of Canada; Mr. Keith Percival, National Maritime Museum, Greenwich, London; Mr. Charles Cameron, Provincial Reference and Resource Library, St. John's; Ms. Shelley Smith, Provincial Archives of Newfoundland and Labrador [now The Rooms Provincial Archives Division, St. John's]; Mr. Allan Clarke, Newfoundland Museum [now The Rooms Provincial Museum Division, St. John's], Historic Resources Division; and Ms. Caroline Stone, Memorial University Art Gallery [now The Rooms Provincial Art Gallery Division, St. John's]. Editorial and logistical advice and assistance was provided at various stages by: Ms. Inge Borre, Dr. P. A. Buckner, Mr. T. Ramsay Derry, Ms. Katinka English, Mr. Philip V. Girard, Ms. Gail Peddle, Ms. Audrey Hickey, and Ms. Jackie Youden. They are, of course, not to be taxed with the liabilities of what follows. Special thanks go to the Hon. R. S. Furlong, the Hon. Mr. Justice Rupert Bartlett, and Mr. Paul O'Neill who made items from their personal collections available to us. Finally, we would like to thank the Silk Robes and Sou'westers Committee for their invitation to prepare this commemorative essay.

Christopher English
Department of History
Memorial University of Newfoundland
Christopher P. Curran
Executive Director
Newfoundland Law Reform Commission

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