THE ENGLISH COLONIAL SYSTEM AND ITS RESULTS
The War of American Independence forms a convenient point at which to
examine for a moment in passing the English colonial system, of which
Newfoundland was in some sense a victim. It may then at once be stated
that in the English view, as in the Spanish view, a "plantation" was
expected, directly or indirectly, to contribute to the wealth of the
Mother Country. If it contributed much, it was a good colony; if
little, its consequence was less. Hence the English legislation
throttling colonial manufacturers in the supposed interests of English
merchants, and confining colonial trade to English channels. Hence the
disregard, persistent and unashamed, of Adam Smith's immortal saying:
"To prohibit a great people from making all that they can of every
part of their own produce, or from employing their stock and industry
in the way that they judge most advantageous to themselves, is a
manifest violation of the most sacred rights of mankind." Long before
Smith, the wisest of Englishmen had sounded a clear note of warning
far in advance of his age. Bacon wrote in his essay on plantations:
"Let there be freedom from custom, till the plantation be of strength:
and not only freedom from custom, but freedom to carry their
commodities where they make their best of them, except there be some
special cause of caution."
Any stick has been thought good enough to beat those who lost America,
but we must not suppress the little that may be urged on their behalf.
Here again may be cited the dispassionate opinion of Adam Smith:
"Though the policy of Great Britain with regard to the trade of her
colonies has been dictated by the same mercantile spirit as that of
other nations, it has, upon the whole, been less illiberal and
oppressive than that of any of them." To the same effect Mr Lecky: "It
is a gross ... misrepresentation to describe the commercial policy of
England as exceptionally tyrannical." In fact, the expense of
protecting Newfoundland and America against French attacks was serious
and constant. That the colonies owed contribution to that defence is
clear, for it would be involved in any other view that an American
enjoyed a natural right to be protected against France at the charges
of a Londoner. In the face of all this the colonies were conspicuously
and notoriously unable to agree upon any principle of allocating
grants. In this respect Newfoundland was no better than the American
colonies. "We should be extremely concerned," wrote a merchant
officially consulted on the point, "to see any species of taxes
introduced into this island which would inevitably be burdensome and
inconvenient to the trade and fishing in general, and we trust that in
the wisdom of His Majesty's Ministers no such innovation will take
place."
The attempt, then, to tax from home was defensible, and Chatham was
clearly wrong in denying its legality. On the other hand, to persevere
in the attempt was the folly of weakness, mistaking obstinacy for
strength.
It must be remembered, as a partial extenuation of English selfishness
in Newfoundland, that the long arm of England was ever extended for
the colony's protection, and that the charges therefor were defrayed
by the English taxpayer. Hence the view followed, naturally but
unfortunately, that the island was an asset to be exploited
commercially in the interests of the home country.
In 1783 the Treaty of Versailles revised the French rights conferred
by the Treaty of Utrecht. The French boundary was contracted from Cape
Bonavista to Cape St. John on the east coast, and was extended from
Point Riche to Cape Ray on the west. The whole subject of the French
claims will be examined in a separate chapter,[34] but a very
important undertaking set forth in the Treaty of Versailles must not
be omitted:
"His Britannic Majesty ... that the fishermen of the two nations may
not give cause for daily quarrels, was pleased to engage that he would
take the most positive measures for preventing his subjects from
interrupting in any measure by their competition, the fishing of the
French during the temporary exercise thereof which is granted to them
upon the coasts of the island of Newfoundland, and that he would for
that purpose cause the permanent settlements which should be formed
there to be removed, and that he would give orders that the French
fishermen should not be incommoded in the cutting of wood, necessary
for the repair of their scaffolds, huts, and fishing boats."
In the time of Governor Milbanke, in 1791, an Act of Parliament
tardily created "the Court of Civil Jurisdiction of our Lord the King
at St. John's in the island of Newfoundland," which Court was
empowered to try all civil cases except those relating to land, and
which usually began actions by the peremptory procedure of arresting
the defendant and attaching his goods. The following year a supreme
Court of Civil and Criminal Judicature was instituted which superseded
the Court erected the previous year, put an end to the authority of
the "fishing-admirals," of the Courts held in summer by surrogates
(naval commanders visiting the island) and of the Courts of Session
held in winter by local justices of the peace, and was empowered to
try all persons charged with criminal offences and determine civil
suits, including those relating to land, and to make arrest and
attachment in civil suits discretionary and alternative. The
jurisdiction of the Court was renewed annually, then triennially; and
John Reeves, to whose history all writers on Newfoundland owe so much,
was appointed the first Chief Justice; but he remained in the island
only till 1792, when he was succeeded by ex-surgeons, collectors of
customs, and merchants. In 1809 a perpetual Act was passed, which
purported to abolish definitely the diverse and sporadic
jurisdictions; but such is the force of old customs and practices that
it was not till 1824 that the old Session Courts, Courts of Surrogates
and of fishing-admirals were finally extinguished, and at the same
time two assistant judges were appointed to aid the Chief Justice, and
all three judges were to be English or Irish barristers. A Court of
Civil Jurisdiction was also created for Labrador. We may recall here
the observations of Chief Justice Reeves on the fishing-admirals:
"They are ever the servants of the merchants. Justice was not to be
expected from them; and a poor planter or inhabitant, who was
considered little better than a law-breaker in being such, had but a
small chance of justice in opposition to any great west-country
merchant. They considered that Newfoundland was theirs, and that all
the planters were to be spoiled and devoured at their pleasure." It
must be recorded that this most just and necessary reform in judicial
administration was vainly but bitterly opposed by the merchants at
home.
In 1793 came the war with revolutionary France, and Newfoundland was
once again in a bustle of defensive preparation. The Governor,
Vice-Admiral King, took possession of St. Pierre. The French, under
Admiral Richery, threatened St. John's, but desisted in face of the
vigour of the new Governor, Admiral Sir Richard Wallace (1796), who
raised volunteers, strengthened the forts, and prepared new batteries.
In 1797 the mutiny at the Nore broke out, provoked by real grievances.
As far off as Newfoundland the spirit of disaffection spread, and an
outbreak occurred on H.M.S. _Latona_, then lying in the harbour of St.
John's. It was quelled by the resolution of Captain Sothern; and
Governor Waldegrave (1797-1800), afterwards Lord Radstock, summoned
the mutineers before him and addressed them in the presence of the
Royal Newfoundland Regiment, whom they had tried to affect with
sedition. "I may venture to say," the Governor writes home, "my speech
was of much service." It was certainly of much vigour. "If I am to
judge from your conduct," he said, "I must think that the majority of
you are either villains or cowards. If the greater number of you are
against your officers, ... I have a right to say that you are
traitors.... If there are only a few bad men among you, which you
pretend to be the case, I maintain that you are a set of dastardly
cowards, for suffering yourselves to be bullied by a few villains, who
wish for nothing better than to see us become the slaves of France....
You were all eager for news and newspapers to see how your great
delegate, Parker"--the ringleader at the Nore--"was going on. I thank
God I have the satisfaction to inform you that he is hanged.... You
looked up to him as an example whilst he was in his glory. I recommend
you to look to his end as an example also.... I have now to tell you
that I have given orders to all your officers, that in case any
further signs of mutiny should appear among you, they are not to think
of confining the ringleaders, but to put them to death instantly; and,
what is still more, I have given orders to the officers commanding the
batteries, to burn the _Latona_ with red-hot shot, in case you drive
me ... to that extremity. I know in this case the officers must perish
with you; but there is not one of them but is ready to sacrifice
himself for the good of his country.... And now go to church, and pray
God to inspire you with such sentiments as may acquire you the respect
and love of your countrymen in this world and eternal happiness in the
next."
This speech, which was rescued from oblivion by the industry of Mr
Pedley, came clearly from a man of energy and resolution. In fact,
Governor Waldegrave proved himself to possess unusual resource and
vigour. He was the creator of the Newfoundland system of poor relief,
and he busied himself actively in the interests of religion. On the
latter subject it is pleasant to note a spirit of growing breadth in
the island. In particular, the loyal labours of the Roman Catholic
Bishop O'Donnell opened up a new era of tolerance for his followers.
To this Bishop was due the discovery, in 1802, of a plot among the
locally enlisted Royal Newfoundland Regiment, to loot St. John's and
then fly to the United States. The ringleaders were executed, and the
mutinous regiment was replaced by one from Halifax.
The war with France was for the time being terminated by the Peace of
Amiens (1802), whereby the conquered territory was to be restored--so
that St. Pierre and Miguelon were returned to France; and her fishing
rights were renewed on the same basis as was laid down in the Treaty
of Utrecht.
In 1802, by which time the population of the island amounted to about
twenty thousand persons, Governor Gambier (1802-1803), who was in
advance of his age in his views on government, as well as on the
education of the settlers, and the civilization of the Beothics,
proposed to Lord Hobart the establishment of a legislative power in
Newfoundland, similar to that which has been found necessary to the
prosperity and good government of other parts of the British
dominions. The suggestion was treated as premature, and probably was
so in fact. That it should have been made at all shows how far we have
travelled from the swaddling clothes of monopoly. However this may be,
two important civilizing agencies were introduced in 1805 and 1806--a
regular post office, and a newspaper (the _Royal Gazette_).
In 1810 began Vice-Admiral Sir Thomas Duckworth's period of office,
which soon revealed a Governor of energy and intelligence. He
journeyed to the northern settlements and Labrador to learn the
condition and needs of the population; he tried to secure friendly
relations with the Red Indians of the country, and set up a hospital
in St. John's. Amongst other reforms he procured the passing of a
statute in 1811 (51 George III.) authorizing him to grant leases of
certain ships' rooms at St. John's then in public occupation.
Following up in this way the useful work of Governor Gower
(1804-1807), he used his leasing power to promote the building of
warehouses and wharves. The idea that the inhabitants of St. John's
had a right to make it habitable was slowly gaining ground. Duckworth
was an able and far-seeing man, and his report on the condition of the
island, furnished to the home authorities at the end of his
governorship, was a lucid and memorable document. His condemnation of
the building restrictions paved the way for the fearless agitation of
Dr. William Carson. A distinguished medical graduate of Edinburgh,
Carson incurred the dislike of Governor Duckworth, and his successor,
Governor Keats, by his outspoken pamphlets. Indeed, there was nothing
equivocal in Carson's views:
"The only remedy against the evils flowing from the present system
will be found in giving to the people, what they most ardently wish, a
civil Government, consisting of a resident Governor, a Senate House,
and House of Assembly."
Hitherto the population had possessed no voice in the administration
of their own affairs. The Governors exercised an absolute power, which
to progressive minds appeared to be an indifferent and unnecessary
despotism. So far as Newfoundland affairs were concerned they almost
invariably adopted an ultra-conservative attitude, and were hostile to
proposals for amelioration called for in the changing circumstances of
the colony. Thus the demand for self-government became more and more
general.
The Anglo-American War which began in 1812 ushered in a period of
great prosperity to Newfoundland. Fish were plentiful, prices good
beyond precedent, and wages high in proportion.
The Great European War was terminated by the Battle of Waterloo on
1815, and peace was restored by the Treaty of Paris. Under the latter
the French regained the right of fishing on the banks and shores of
Newfoundland. The privileges of Americans to fish in British waters
were also enlarged. In favour of their own fishermen, both the French
and American governments then established a system of bounties, and by
imposing high duties prevented the importation of Newfoundland fish
into their own markets. Thus the Newfoundland fishermen were obliged
to compete with their rivals on very unequal terms.
Governor Pickmore, who succeeded Governor Keats in 1816, was
confronted with a very difficult state of things. The high prices
which had ruled from 1812 to 1815 had attracted emigrants in large and
undesirable numbers. The commercial reaction and foreign competition,
aided by the bounties, hit the merchants hard, and in 1815 bankruptcy
trod fast on the heels of bankruptcy. In the following winter actual
starvation menaced the residents, and many owed their lives to the
generosity and energy of Captain David Buchan, commander of H.M.S.
_Pike_, who put his men on short rations for the relief of the
inhabitants. In an address of thanks, which was presented to him when
the crisis was past, his services were gratefully recorded:
"At this distressing crisis you afforded us from His Majesty's store a
supply in aid of our then alarming and terrible wants. You then, with
patriotic feeling, placed the company of the ship which you command
on reduced allowance, and yielded to the public distress every
alleviation which such means afforded."
The lean years were still further saddened by the terrible fire of
1817, which left more than a thousand persons houseless, in the full
severity of winter. The wooden houses and narrow streets of St. John's
made resistance hopeless, when the flames had once gained a hold. It
was estimated that the fire caused a loss of £125,000. The wealthier
inhabitants and the home Government gave what relief was possible, and
in 1818 the crisis yielded before brighter prospects.
Pickmore was the first Governor to reside continuously in the island
(where he also died), for his predecessors had sailed away with the
fishermen in October to reappear with the beginning of summer. In 1817
a Select Committee of the House of Commons was specially appointed to
consider the situation of Newfoundland. The merchants, full as ever of
vicious political economy, had two remedies to propose for the
admitted distresses. One was the concession of bounties to place them
on a level with French and American competition; the other was the
removal of the population (then numbering 17,000) to Nova Scotia or
Canada. Determined to omit nothing which might make them the derision
of history, they added an emphatic opinion that agriculture could
never thrive on the island.
On the appointment of Governor Pickmore, Lord Bathurst had given him
the following instructions:
"As the colony has of late years, from the rapid increase of the
population, assumed a character totally different from that under
which it had been usual previously to consider it, I am most desirious
of receiving from you your opinion as to the propriety of introducing
any and what change into the system of government which has heretofore
prevailed."
The seeds sown by Carson were beginning to bear fruit, and from 1821
onwards the desire for local government in the island grew
continuously stronger. As against the arguments of the opposition, it
was urged that all the British colonies, even the small Bermuda, had a
local government; that Nova Scotia was granted it as far back as the
middle of the eighteenth century; that the older American colonies had
always enjoyed self-government; and that the time had now come for the
extension of the same privilege to Newfoundland. The authority of
Governor Cochrane, who was appointed in 1825, and whose term of office
lasted till 1834, was limited by the appointment of a Council,
consisting of the Chief Justice, the two assistant Judges, and the
Military Commander at St. John's. Under this Governor roads were for
the first time laid out in the island. The irritation of the merchants
at home was intense, and the name of Peter Ougier, a west country
merchant, ought to go down to posterity. In his evidence before the
committee, he protested with real emotion: "They are making roads in
Newfoundland: next thing they will be having carriages and driving
about." Sir Thomas Cochrane was regarded as the best Governor ever
sent to Newfoundland. He was "the first real administrator and ruler
of the colony. An eminently practical man, he not only organized
improvements, he personally superintended their execution. His
activity was unbounded; in the early mornings he was out on horseback
inspecting the roads, directing his workmen, laying out the grounds at
Virginia, having interviews with the farmers, giving them practical
hints about agriculture; everywhere he impressed his strong
personality on colonial affairs. He was very sociable, and his
hospitality was unstinted." Indeed, the historian of the island can
point to only one mistake committed by the Governor, the bad taste
shown in the erection of Government House, which "looks more like a
prison than the Vice-regal residence ... it is a huge pile of
unredeemed ugliness."[35]
In England, in the early thirties, reform was in the air. The blow was
struck at the right time, and in 1832--the year of the great Reform
Bill--Parliament passed a measure creating in Newfoundland a
representative assembly. The island was divided into nine electoral
divisions, each of which was to have one or more representatives,
according to population. There were, in fact, fifteen members. The
first election passed off quietly in the autumn of the same year. Dr.
Carson, the father of Home Rule, stood for St. John's, and Mr Justice
Prowse has usefully noted that he was defeated. The fickleness and
ingratitude of the people were never more dramatically illustrated.
"He had been the pioneer of the new movement, had suffered in the
people's cause, and yet the public, 'that many-headed monster
thing--the mob,' were the first to cast aside their leader in the
fight for Home Rule, and to give their votes and support to a new and
untried man." It was said, however, that the defeat was due to an
electioneering trick, whereby a false report was spread as to the
attitude of the veteran in the liberal cause.[36] "The House of
Assembly of 1833 was the youngest constituent body in America, but it
was not one whit behind any of them in stately parliamentary pageant
and grandiloquent language. H.B. (Doyle) in London caricatured it as
the 'Bow-wow Parliament' with a big Newfoundland dog in wig and bands
as Speaker putting the motion: 'As many as are of that opinion
say--bow; of the contrary--wow; the bows have it.'"[37]
A nominated Legislative Council had been provided by the Constitution
of the Colony. The relations of the Chambers have always been delicate
in the British colonies, and in Newfoundland friction soon arose. The
Legislative Council, under Chief Justice Boulton--who improperly
called himself the Speaker instead of the President--set itself to
thwart and discredit the popular Chamber. On both sides the
controversies were petty, and were conducted in a petty spirit. The
popular assembly described itself as "the Commons House of Assembly in
Parliament assembled"; whereupon it was ordered forthwith to strike
out the word "Parliament." The Legislative Council appears to have
been the more cantankerous, and the less prone to compromise. At last
matters reached an _impasse_, for the Council began to throw out
Supply and Revenue Bills. In the first year of the Queen's reign, when
Canada was already full of trouble, delegates from the Newfoundland
House of Assembly arrived in London. Their mission was in the main
successful. The Council was recommended to adopt the Appropriation
Bill, and Chief Justice Boulton was summarily dismissed. "Boulton,"
says Mr Justice Prowse, "had undoubted ability, but he was the worst
possible selection for both the Council and the Bench. His views, both
of law and legislation, were most illiberal; as a technical lawyer he
was mostly right and sublimely independent, but his harsh sentences,
his indecent party spirit, and his personal manners caused him to be
hated as no one else was ever hated in this colony."[38]
In 1838 occurred the Kielly affair, which has added a leading case to
English constitutional law. Dr. Kielly assaulted, or was said to have
assaulted, Mr John Kent, who was a member of the Assembly. Mr Kent
brought the matter before the Assembly as a breach of privilege. The
House refused to hear witnesses on Kielly's behalf, treated the charge
as proved, and demanded that he should apologize at the bar of the
House. Kielly refused, adding that Kent was a liar and a coward. Then
followed an interlude of comic opera. Kielly was committed, whereupon
Mr Justice Lilly granted a writ of _habeas corpus_. This was not to be
borne by the imperious Assembly, and the Speaker promptly issued his
warrant for the re-arrest of Kielly, the arrest of the High Sheriff,
and of Judge Lilly. Nothing like it had been seen since the heyday of
the Wilkes litigation in England, when the House of Commons committed
the Sheriff of Middlesex to prison for carrying out the orders of the
Court of King's Bench.
In the unruffled atmosphere of the Privy Council the legal question
found its decision.[39] It was laid down that the Crown, by its
prerogative, can create a Legislative Assembly in a settled colony,
with the government of its inhabitants: but that it is highly doubtful
whether the Crown could, if it wished, bestow upon such an Assembly an
authority, such as that of committing for contempt, not incidental to
it by law. "The House of Assembly of Newfoundland," said Chief Baron
Parke, "have not, what they erroneously supposed themselves to
possess, the same exclusive privileges which the ancient law of
England has annexed to the Houses of Parliament."
In 1838 the members of the Assembly were elected for four years, and
this term has continued ever since.
The colony was destined to pass now through bitter trials. Having
secured freedom, after much suffering and oppression, it soon learnt
that freedom without common sense and moderation degenerates into
licence, and becomes a menace and a terror. The election of
representatives was accompanied by scenes of turbulence and disorder:
the sense of toleration and compromise was absent. Half of the
population were Roman Catholics of Irish descent, in whom rankled
memories of ancient wrongs; the other half were Protestants of English
descent, long used to ascendency, who were headed by a wealthy
commercial class. With the introduction of the new régime old
distrusts and hostilities were rekindled, and an unscrupulous press
fanned the flames. Religion became mixed up with the political
contention; and the evil passions that were aroused, and the outrages
that were committed held back for some time the progress of the
community and the political development of the colony.
* * * * *
FOOTNOTES:
[34] See _infra_, chap. x.
[35] D.W. Prowse, "History of Newfoundland," second edition (London,
1896), pp. 424, 425, 426.
[36] Prowse, _op. cit._, pp. 429, 430.
[37] _Ibid._, p. 431.
[38] Prowse, _op. cit._, p. 434.
[39] Kielly _v._ Carson (1842), Moore's Privy Council Cases, vol. iv.,
pp. 63, 88.