Document Type

Book Chapter

Publication Date

2017

Source Publication

Melvin Baker, Christopher Curran and J. Derek Green, eds., Discourse and Discovery: Sir Richard Whitbourne Quatercentennial Symposium 1615-2015 (St. John’s NL: Law Society of Newfoundland and Labrador, 2017), 41-56

Abstract

In his work The British Empire in America, published in 1708, the historian John Oldmixon observed casually that in Newfoundland, “there’s no need of much Law, for the Inhabitants have not much Land and no Money.”1 The premise was correct, but the conclusion did not necessarily flow. Observers often lamented the absence of law and legal institutions in early Newfoundland, and there were a variety of attempts to bring law to the plantation in the 17th century, all of them strange and unfamiliar to modern eyes. None of the apparatus of 19th-century colonial governance was established before 1700: there were no royal governors, no sheriffs, no judges appointed as such (Richard Whitbourne himself was more of a one-man commission of inquiry), no attorneys, no barristers, not even that workhorse of empire, the justice of the peace; the first one would not be appointed until 1729, over a century after the first attempts at colonization. Instead, there were semi-feudal magnates, fishing admirals, naval commanders, and a parliamentary commissioner. The fact that the 17th century did not bequeath any institutional foundation to modern Newfoundland and Labrador does not mean the period is of no relevance today. Some very important constitutional ideas and practices with

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