But with all this support, so limited a power, lodged in such feeble hands, could not sustain the contest; and the admirals soon fell back into the inactivity, neglect, and contempt, where they had before slumbered. As they sunk, the commanders of the king’s ships rose into importance; the statute of William grew to be looked upon as a dead letter; and the administration of justice, in all the points there conferred on the admirals, was expected from nobody but the commanders of the king’s ships, when they came to the island in the summer season.
Surrogates.
Although the hearing of certain matters, by way of appeal, was given to the commanders by the statute, yet the hearing of them originally was not authorized. The possession of the former gave a colour for assuming the latter; and crude as this may seem, it was, perhaps, as well warranted as some of the instances of jurisdiction now exercised, and from long usage allowed to the first courts in Westminster-hall. When the captains were in possession of this, they proceeded, as happens mostly in the exercise of power and authority; they found in that place, as it is elsewhere, that all judges have the quality which is invariably supposed to belong to the best, that of enlarging the sphere of their cognizance[88]: and we find very soon, that the captains of ships took cognizance of debts contracted; and held courts, in which they enquired of, heard, and determined all possible causes of complaints; and with no other lights than those furnished by the statute of William, the instructions from the governor, and the suggestions of their own good sense; paying always a due regard to the customs and usages of the country. They did every thing, that the fishing admirals might do, and every thing the admirals had at different times pretended to have a right to do. From their situation, and the support they received from the governor, they were enabled to maintain the jurisdiction they had assumed. The governor conferred on them the title of surrogates, an idea taken from the admiralty-law; to which, and which alone the naval governors were in the habit of looking, and under which it had long been a notion, that the fishery, as an admiralty concern, ought to be regulated. A surrogate is well known in Newfoundland, as legally deputed by the governor, to act as his deputy. Under this character the authority of the governor was exercised very beneficially. The time of surrogating was looked forward to as a season when all wrongs were to be redressed against all oppressors; and this naval judicature was flown to by the poor inhabitants and planters, as the only refuge they had from the west country merchants, who were always their creditors, and were generally regarded as their oppressors.
The governor holds a court.
While the surrogates in the different parts of the island were administering justice in this manner, the governor had also his court at St. John’s; and, it is easy to believe, that every thing which the surrogates permitted to themselves, the governor thought himself equally entitled to do and command. Every matter, civil, and criminal, used to be heard, and determined in open court before the governor. Where no special direction was pointed out by law, a person in that situation was to be commended for striking out such a course as the exigency of the situation, and the good of the place required. This desire of doing good sometimes carried the governors further than strict legal propriety could warrant. They used to preside in the sessions of justices, although it was from their authority that the commission of the justices issued. It would be endless and unnecessary to enter into the instances of irregularity that must follow, when judicatures were instituted in such a place as this, by persons who had nothing for their guide but the rectitude of their intentions, and a very honourable disposition.
Courts of vice-admiralty and session.
In the year 1765, a custom-house being established at St. John’s, a court of vice-admiralty, (the court of revenue in the plantations) was placed there. This court, in the absence of the governor, during the winter, had entertained complaints in other matters than those peculiarly belonging to it. In this it only followed the example of the court of sessions, where the justices had allowed the hearing of matters of debt, and other subjects of difference of a civil nature. It was in consequence of this usage, that the parliament afterwards conferred on the court of vice-admiralty, and the session, a jurisdiction of a civil nature. By Stat. 15, Geo. 3, c. 32. they have authority to determine disputes concerning the wages of seamen and fishermen, and the offences committed by their hirers and employers against that act. This jurisdiction was taken from the court of vice-admiralty, by Stat. 26, Geo. 3, c. 26, owing to the unfavourable impressions that had been made respecting the practice which had prevailed in that court.
Although the parliament took away from the vice-admiralty court the authority vested in it by law, it still continued to exercise that which no law had conferred on it; and both that court and the sessions were resorted to in the absence of the governor and surrogates, for the administration of justice in all civil cases whatsoever. Justice administered under such circumstances could have but little of the authority and effect, which should attend upon the sentence of a court. There was no doubt in the minds of any, above the very lowest class, but the whole of this judicature was an usurpation: it was, therefore, more frequently employed as an engine of authority, to obtain that by a course of law, which could not, perhaps, be attained by open violence, than as the means of protecting the weak against the powerful. A merchant rather chose to have the assistance of the court of session or admiralty, to attach and seize the effects of his debtor, than incur the odium of taking them with force. The appearance of a legal course was preferable. But should a wealthy merchant become defendant in one of these courts, it was not so sure that he would approve the same legal course, or yield the same obedience to a sentence. He, as well as the court knew, there was no legal authority to compel; and it was a question of prudence only, whether such a defendant would submit quietly to their order. If the court happened to have in it persons who acted with vigour, and had character and influence sufficient to cause its decrees to be duely executed; it would, in such case, be but a bad prospect for a merchant to look for redress by an action, to be brought in England against a man who, perhaps, never might make a visit there. Such considerations might operate with the merchants to obey these courts, even when they decided against them. Besides, a merchant might think it for his advantage to yield, in one instance, to a court, which in so many others he found useful; he being more frequently plaintiff than defendant.
It was in this manner, by a sort of convention, upon views partly private, partly public, with a design sometimes selfish, often generally beneficial, but never without the concurrence and support of the majority of those most interested, was a judicature gradually conferred on these two courts, which with the governor, and the surrogates, possessed all the judicature in the island, civil as well as criminal.
But a time was coming, when a judicature, that stood on so weak a foundation, was to be shaken. Though the justices, and the judge of the admiralty court might never come to England, the governor and his surrogates necessarily did. In the time of governor Edwards, some persons, discontented with a judgement made by him in court, at St. John’s, and carried into execution by the sheriff there, meant to redress themselves by bringing an action against the governor for a trespass in so depriving them of their property. This was to have been tried at Exeter, but it was made up before the case was gone through to the jury.