History of the government of the island of Newfoundland / With an appendix containing the Acts of Parliament made respecting the trade and fishery

by John Reeves

Complaints about courts.

A new subject of complaint had grown up in Newfoundland—this was the hearing and determining of civil causes. Among all the grievances, and the expedients for remedying them, during the tract of time we have gone through, there seems to have been no solicitude or attempt to provide a court of civil jurisdiction. While this place continued merely a fishery, the causes of action between parties were simple and of less magnitude; but of late years the population had encreased, and among the persons resident there were dealings of a mercantile nature to a great extent, and of a sort to need a judicature, that would command more confidence than any of the old establishments had been thought entitled to. There arose therefore, from time to time, discontents upon this head, and these led to measures that ended in making an intire new establishment of a court. To make this subject more intelligible, we should look back to the courts that had hitherto been known at Newfoundland, the nature and jurisdiction of which were brought under consideration at this time.

Review of the Courts of Newfoundland.

The first regulation that looked at all like a court, was the authority given by stat. 10 and 11 Will. 3. c. 25. s. 15. to the fishing admirals, to hear and determine controversies and differences between the masters of fishing ships, and the inhabitants, or any bye boat-keeper, concerning the right and property of fishing rooms, stages, flakes, or any other buildings or conveniency for fishing or curing fish; and if either party thought himself aggrieved, he might appeal to the commander of any of the king’s ships belonging to the convoy. This was a civil judicature of a limited sort—the adventurers or merchants, it should seem, were not liable to it; it was confined also in its object; debts still remained without any mode of recovery, as well as all other personal wrongs of a civil nature.

Fishing Admirals

Another jurisdiction was given to the fishing admirals by this act: by sect. 14 they were to see the rules and orders contained in that act concerning the regulation of the fishery duly put in execution; and this was given them, as the act expresses it, to preserve peace and good government among the SEAMEN and FISHERMEN, as well in their respective harbours, as on the shore. This was a sort of police invested in them, which might be considered as partaking both of a civil and criminal authority. But this also, like the former, was limited as to the persons; no authority was given that could be exercised over the merchants and adventurers, who seem to be considered by this act as persons who might have right done them; but against whom it was not necessary to do any justice whatsoever—for, by the rules and orders of this act, the fishing admirals would be obliged to see they had ships-room; and their seamen and fishermen would be kept quiet and under controul; but if these adventurers had taken possession of any fishing rooms, stages, flakes, or other conveniency for the fishery, the admirals had no jurisdiction to call them to account, and to make restitution to the right owner, their jurisdiction in that particular being confined to the masters of fishing ships, inhabitants, and bye boat-keepers.

The merchants and adventurers being therefore subjected by this act to no controul or authority whatsoever, when they begun to settle, and to have mercantile dealings, to a great amount, they had nothing to do but to take the law into their own hands; and having possessed themselves of plantations or fish, or any thing else, in payment of debts, real or pretended, there subsisted, under this act, no power whatsoever to call them to account; and it was, no doubt, for this reason, that the merchants have so constantly adhered to the support of this act, declaring that a free fishery, conducted under the policy of this act, was all they wanted, and complaining that every regulation made since that act has invariably operated to injure the trade and fishery. It was indeed the policy of this country to support a free fishery there, for ships going from hence, and to prevent settlement. So far the views of the government and the interest of the merchants concurred; but the application of this principle had the effect of leaving the island to the mercy of the adventurers, who found it their interest at length even to promote settlement to a certain degree; contrary to their own declarations, and to the policy of stat. 10 & 11 Will. 3.; for no part of which they seem to have had any value, but the feeble judicature and police it gave the island; in consequence of which, they saw the whole fishery abandoned to their sole will and pleasure.

These observations upon the incomplete form of this judicature and police, suggest themselves upon the bare reading of the act; but the experience of the manner in which it was executed, shewed all this in a more aggravated appearance. It has been too often repeated in the course of this historical enquiry to need repetition here, that the admirals were the servants of the merchants, inasmuch as they were the masters of some of their ships; that in many cases, therefore, justice was not to be expected from them; that is, in cases where their owners were concerned. In many others, where their owners or themselves were not concerned, there was always a partiality towards the description and class of persons with which they were connected; and a poor planter, or inhabitant, (who was considered as little better than a law-breaker in being such) had but small chance of justice, in opposition to any great west-country merchant. This bias must have been a strong impediment to the equal administration of justice in the hands of the fishing admirals. Besides this which arose from their employment and connection, there was another disqualification, that was to be corrected by no integrity or fairness whatsoever. It should seem, that persons, educated as masters of merchant ships, could not in general possess that discrimination and discernment, which was necessary for determining right and property, even in fishing stages and flakes.

Such being the judicature established by the statute of King William, and such the hands in which it was lodged, we have found, that it was executed fully as ill as could from the nature of it be expected. We find that the admirals were most of their time out on the fishery; that, when in harbour, they were still employed about curing of their fish, and the other parts of their business; that the commanders of the king’s ships were obliged to summon, enjoin, and enforce them to hold courts; that discovering the sluggishness of the admirals, they were under the necessity of taking liberties not given by the statute; that, being only a court of appeal, they were obliged to erect themselves into an original court. This they did by degrees, and with a sort of deference to the provisions of the act of parliament. At first they got the admirals to sit with them; and I have seen many judgments and proceedings to which the commander of some of the king’s ships has first subscribed his name, and the admirals have added theirs. It is not to be wondered, that the commanders of the king’s ships, with their superior endowments, should gradually obtain an ascendancy; and having thus blended their appellate jurisdiction with the original one lodged in the admirals, should at length wholly dispense with their attendance of the fishing admirals (who would be glad enough to be excused), and so in time succeed to a complete original exercise of judicial authority in the place of the admirals.

So indeed it happened. But there were not wanting occasions, when the admirals awaked from their lethargy, and shewed a steadiness in asserting the dormant powers lodged in them by the statute. These were when the adventurers and merchants perceived the government at home were making any attempt to introduce a better system of law and order into Newfoundland. Accordingly, we have seen, that upon the appointment of a civil governor and justices, in the year 1729, the admirals bestirred themselves; and, from the impulse which the competition inspired for the moment, they actually took upon them all the authority they possessed under the statute. They even went further, and claimed a criminal as well as a civil judicature; and proceeded to issue warrants, and do acts which belong to justices of the peace. In these usurpations they were supported by the western merchants, whose language it was to represent the provisions of stat. 10 and 11 Will. 3 as competent to the complete government of the island in all matters, both civil and criminal.