The development of law in Newfoundland developed differently than other parts of the New World. From the outset, the mainland colonies were given much of the normal apparatus of English common law. In Newfoundland, although some attempt was made to introduce the same system under charters of Guy or Baltimore, circumstance determined that her development would take place upon completely different principals. By 1700, it had been decided that she would have neither a governor, nor resident law courts. She would have no House of Assembly to pass her laws; neither would she have a police force to enforce them.
In Newfoundland the migratory fishery was in existence before colonization began and its interests were not necessarily the same as those of all colonists. The migratory fishery had developed its own customary laws and freedoms which might run counter to the legal system which was normally adopted in new settlements. Newfoundland was not a colony like others and the government of England had to try to reconcile the interests of the colonists and the interests of the migratory fishermen. By 1670 the government had decided that the migratory fishery was by far more important and although it reluctantly accepted that some settlement was necessary, the laws were framed to encourage the migratory fishermen and discourage too much expansion in settlement. By 1700 the mainland colonies laws were framed to encourage growth of settlement and good government. In Newfoundland the laws were framed to discourage it. However the government of England wanted to make sure that law and order were firmly enforced in Newfoundland. There was no resident legal system or no police system to enforce it. Newfoundland could not afford to pay the costs of a legal establishment.
In the beginning the fishing fleets developed an ad hoc customary system of settling disputes through the Fishing Admiral System whereby the first ship in the harbour was supposed to arbitrate between later arrivals. In practice this must have depended solely on the power of the Fishing Admiral- and his interest in settling quarrels instead of catching fish for his owner. By all accounts there was very little law and order in the Island and quarrels, thefts, murders and disputes about fishing rooms were endemic. The strongest man almost invariably won his point.
However, the most important disputes between the crews and ships of one nation were normally dealt with in Europe when the fishing fleet returned.
With the settlements of Guy, Baltimore and Kirke, provision was made for the passage of law by the governor "with the consent of the leading freemen". However, the migratory fishery - far larger numerically - was still in existence and was used to settling its own disputes either through the fishing admirals in Newfoundland or in the law courts back in Europe. They bitterly resisted any idea that the governor of a small and isolated colony should have the right to make any laws for them and by the right of prior possession, national importance and, rational convention. Therefore all charters forbade the governors of the colonies from exercising any authority over the migratory fishermen. They could govern their settlers but no one else.
The Fishing Admiral was the only means of enforcing law in Newfoundland and formed the only basis for a legal system. In 1699 King William's Act made the commander of the warship which annually escorted the fishing fleet to Newfoundland, a sort of Appeal Judge. Anyone who did not like the decision of a Fishing Admiral could appeal to him. This was the beginning of the system of the Naval Governors who ruled Newfoundland throughout the eighteen century.
King William's Act was an effort to reconcile the need for settlement with the even more basic need to promote the migratory fishery.
King William's Act, passed in 1699, represented an attempt to recognize the need for settlement while at the same time preventing it from growing. Laws relating to the ownership of land were reformed and codified so that the rights of private landowners were clearly distinguished from the public land which was reserved for the use of visiting fishing ships. The old provisions of the Western Charters which forbade such matters as wanton destruction of timber, the stealing of property, undue drunkenness and other things were incorporated into the Statute without change. The problem was not what laws should be passed for Newfoundland but which men should be charged with the duty of enforcing them.
By 1699 Newfoundland had been governed by colonial settlement charters and several variations of the Western Charter. The provisions of the law were all basically good but they had never been enforced because neither the West Country Merchants, the Colonial Governors or the Fishing Admirals had been seriously interested in enforcing them. A law that is not enforced is no law at all. If the government wished to have its laws obeyed, and especially if it wanted its policy of allowing settlement but encouraging a mainly migratory fishery to be successful, then it must obtain the right system of law enforcement. Ideally, the best way of enforcing law is for a government to hire its own officials who live permanently in the area for which they are responsible and who, independent of the people who work and live in the area, can be depended upon to carry out government policy. In eighteenth century Newfoundland this was impossible. In the first place, the scattered nature of our population and the lack of good communications between the fishing villages meant that the number of officials who would be needed to enforce the law would be enormous. By law and custom no tax could be laid upon the fishery, and so these officials would have to be paid from the English treasury. In 1700 this was unthinkable, for all colonies were supposed to provide for the expenses of their own administration. Even if this had not been the case, the government was not going to appoint resident officials in Newfoundland for they felt this would cause an undue increase in settlement. The question was who would enforce the law? So the government had little choice but to continue the Fishing Admiral system, although they were well aware that it did not function well.
The British government must have hoped to have found a workable solution to the problems of Newfoundland but in no time at all they found out that King William's Act of 1699 was a complete failure. In 1701 a customs officer from New England found that the Act was completely ignored and disregarded. The Fishing Admirals were usually reluctant to hear any legal cases at all because it interfered with their primary job, which was to catch fish for the owners. Even inserting penal clauses to strengthen the Act was unsuccessful. The problem was the enforcement of law.
In the years between 1718 and 1729 the internal affairs of Newfoundland became so chaotic that the government was forced to at last take action. This was not due to the fact that government policy was not being enforced, but because law and order completely broke down in Newfoundland. During the winter, the military garrison commander at Placentia, answerable to no civil authority, had become a dictator imposing his will upon all the fishermen in the bay. Trouble began in 1718 when Thoms Ford, a prominent planter in Torbay, was murdered by one of his servants during the winter. No one in Newfoundland had any legal authority to confine the offender although he was well known. William Keen, a merchant living at St. John's complained vigorously to the government, pointing out that the respectable inhabitant was going in peril of their lives because wrongdoers knew that they stood little chance of punishment. By 1724 the residents of St. John's had become so desperate that they formed a little civil government of their own in an attempt to protect themselves and their property from a wandering group of landless men. Property was stolen, men were attacked and injured, and even respectable men quarreled furiously about the rights to property or land. Since there was no law during the winter, there was no legal way for men to settle their differences.
Matters came to a head by 1728. The naval convoy commander for that year was Lord Vere Beaucler who, being the illegitimate grandson of King Charles II, possessed great influence in England. He clashed with Colonel Gledhill, the commander of the garrison at Placentia who was exercising despotic control over the fishermen and who refused to acknowledge that a naval commander could exercise any authority over him. In the fall when the warships left Newfoundland, a ship carrying convicts from Ireland to Virginia dropped some of them at Bay Bulls instead and during the winter the inhabitants of St. John's faced an alarming outbreak of robbery, violence and murder. News of this reached Lord Beauclerk in England by a ship which left Newfoundland late in the year, and he presented a report to the Board of Trade pointing out that the resident population in Newfoundland could no longer be left at the mercy of arbitrary military officers and predatory criminals. Some sort of winter justice in Newfoundland was absolutely necessary. The Board of Trade agreed and in 1729 by Order-in-Council, the naval convoy command was given a commission to be Governor and Commander-in-Chief in Newfoundland with full civil, as well as military authority. This effectively curbed the power of the military officers and strengthened the convoy commander in his attempts to enforce government policy in the fishery. At the same time, the new governor was authorized to appoint winter magistrates from among the most suitable residents. These men were to have authority to deal with petty crimes, but were not to interfere in civil disputes such as arguments of land or debts or the fishery which still lay only within the domain of the Fishing Admirals. Because King William's Act stated that the Fishing Admirals were the sole administrator of law during the fishing season, the new magistrates were not supposed to act while the fishing fleet was here. It was a very limited sort of justice, but it was an improvement over the old system under which the winter residents had no law at all. Quickly, the first governor, Captain Osborne, pushed matters even further. In defiance of his own commission and of the terms of authority given to the winter magistrates, he encouraged them to hear cases all year round and to intervene in civil as well as criminal matters. This action was clearly a violation of the Royal Proclamation which created the governor, and the magistrates and the English government knew it. Nevertheless, they supported the governor despite the perfectly justified protest of many of the West Country merchants. By 1732 the complaints of the merchants had died away and the magistrates became a firmly established and recognized part of Newfoundland's legal and civil administration. The merchants soon stopped opposing the innovation because, as the only literate and influential men in Newfoundland, they or their agents soon became the magistrates and hence caused them no harm. Winter magistrates, appointed to deal with petty crime, were now dealing with every matter which came before them, and they were sitting on a year round basis. For sixty years no one complained, but in the end someone was bound to bring the whole system crashing down.
In 1729 the ad hoc development of Newfoundland's judicial system continued with the royal proclamation which made the convoy commander into a colonial governor and created the winter magistrates. Between 1729 and 1788 other institutions of law and administration also came into existence. Soon after 1730 the naval governors began to delegate their judicial responsibilities to their junior commanders who, as surrogates, toured the outports once a year to hear civil and criminal cases.
The early system of justice in Newfoundland was very informal. Its justices were often "totally ignorant men with no qualifications except the command of a ship." At one time, "out of the whole body of these marine justuciaries, only four could be found able to sign their names". Judicial process was frequently used as a weapon against the ruling admiral's enemies. Courts were convened either on board ship or on land at the major fishing centers. When they met on land, these courts did not occupy permanent quarters.
The early justice system in Newfoundland was peculiar and unique as it existed and developed in the eighteenth century. For its day, it worked well, cheaply and quickly solved the simple cases which came up. But the growth of the population and the change in the nature of that population rendered it obsolete. As long as civil cases were minor and involved planters, fishermen and simple merchant-fishermen relations, the system worked. It could not accommodate the change in the nature of the fishery which occurred after 1783. Now there were merchants residing on the Island, and their dealings with each other were many-sided, complex and involved very large sums of money. It was inevitable that, someday, a merchant would challenge the system and that challenge might bring it crashing to ruins.