The administration of law occupies a central place in the history and culture of Newfoundland. Many elements of our traditional cultural identity are based on legends and myths associated with the island's legal system. The writing of Newfoundland history has in large measure been a chronicle of the struggle to secure the civil and legal rights which the British government allegedly denied the early settlers.
It is no accident that this paradigm of conflict became so well entrenched: both Justice John Reeves (1793), who wrote the first history of the island, and Judge D.W. Prowse (1896), whose book remains the mostly widely read historical work, focused on the struggle between the humble settlers, on the one hand, and the oppressive English merchants and their government allies, on the other. As trained jurists, Reeves and Prowse both had a particular interest in law and the courts, which they saw as pivotal forces in Newfoundland's development.
According to the traditional interpretation, by denying settlers their full constitutional privileges under English law, the British government had condemned them to live in a backward society, where they were deprived of the basic rights to settle and own private property, to vote in elections and participate in local government, and to practice their religious faith in peace and security. The consequences of this repression affected virtually every aspect of the island's social and economic development. Without proper legal protection, Newfoundlanders were systematically exploited under the merchant credit system; without local control over their natural resources, they watched helplessly as the wealth from the fishery was invested elsewhere; and without democratic institutions, they remained mired in a primitive society marked by sectarian tension and violence.
The story of Newfoundland has typically been depicted as one of perseverance in the face of injustice and inequity. As a generation of schoolchildren read in their textbooks, “Neither the rule of the fishing admirals, nor the French wars, nor the bad treatment of the Irish, made the Newfoundlanders give up hope.” Their reward finally came in 1825, when, “after more than three hundred years of struggle, Newfoundland had become a colony” (Harris, 67, 88).
Over the past generation, historians have challenged the traditional view of Newfoundland history. Scholarly research has disputed not only the assertion that early settlement was actually prohibited, but also the model of endemic strife between the conflicting interests of local settlers and English merchants. Recently, this revisionist interpretation has been applied to legal history, as some scholars have questioned the presumption that the island's judicial system was necessarily illegitimate or ineffective.
The Silk Robes and Sou'westers web site provides examples of both the conventional viewpoint and revisionist perspectives based on recent archival research. It includes a wide range of material, from reproductions of primary documents, to historical fiction and scholarly essays. It is divided into three main sections. The first, “Rough Justice: A Play in One Act,” is a historical drama centred around a series of court cases in the early 19th century. Through gripping fictionalized accounts of the crusade for law reform, the play offers an excellent example of the traditional interpretation of legal history.
The second section, “Law and the Courts,” presents a critical reassessment of the administration of law from the first Western Charter in 1634 to the establishment of representative government in 1832. In a series of 15 articles it provides an overview of the island's legal system and an in-depth analysis of topics such as the fishing admirals, naval government, the reception of law, and the campaign for reform. It is accompanied by a collection of primary documents which includes the most important statutes enacted prior to the grant of colonial status in 1825.
The third part, “A Cautious Beginning: The Court of Civil Jurisdiction, 1791,” is a reprint of a 1991 publication by Dr. Christopher English and Christopher Curran. It covers the evolution of written law from the rule of the fishing admirals, through King William's Act of 1699 and Palliser's Act of 1775, culminating with the Judicature Act of 1791. It analyzes the impact of the new constitution and the introduction of a Chief Justice and Court of Civil Jurisdiction in 1791. Taken together, these sections offer a comprehensive account of a momentous yet misunderstood chapter in Newfoundland history.
The Silk Robes and Sou'westers: A History of Law and the Courts in Newfoundland project was made possible through the generous support of the Law Foundation of Newfoundland.
© 2001, Jerry Bannister