[Sidenote: PART III.
From A. D. 1728, to Stat. 15, Geo. 3.]
_Justices appointed—Opinion on raising Money by the
Justices—Contest between the Justices and fishing
Admirals—Opinion on the Authority of the Admirals—A Court
of Oyer and Terminer proposed.—Such Commission issued—Lord
Baltimore revives his Claim—The Peace of 1763—Remarks
of the Board on Stat. 10 & 11 Will. 3.—Newfoundland a
Plantation—Custom-house established—Property in Flakes, &c.
discussed—Stat. 15, Geo. 3, c. 31._
Some hope might reasonably be entertained, that the establishment of a
civil government, and the appointment of justices of the peace, with
proper officers for executing the law, would have been received by all
as a desirable improvement in the state of society in the island, and
it might be expected, that such an appointment could not fail of its
effect. But the cause which had always operated to prevent any sufficient
authority being introduced into that place, opposed itself to this new
establishment. The _western merchants_, who had been silent, while this
measure was in agitation, were ready enough to bring complaints of its
consequences, when carried into execution; and we shall soon see the
struggle made to prevent any lawful authority taking root an Newfoundland.
The government soon had to regret, that they had not taken the advice of
the board of trade, to bring forward a bill in parliament for correcting
all the abuses, then subsisting there; for it will be found that the
opposition raised against the civil governor and his justices, was on
account of their not deriving their authority from parliament, but only
from the king in council. How futile soever this reason may be, it had
its effect in staggering many, and contributing to bring the office, and
persons bearing it, into great question, if not contempt.
[Sidenote: Justices appointed.]
_Mr. Osborn_, upon his arrival, proceeded to carry into execution
his commission. He divided the island into convenient districts, and
appointed in each of them, out of the inhabitants and planters of the
best character, such a number of _justices of the peace_ and constables,
as seemed necessary. In order for building a prison, he ordered a rate,
such as the justices represented, he says, to him as of little burthen
to be raised, within the districts of _St. John’s_, and _Ferryland_; and
a prison was to be built in each of those places. It was not greater
than half a quintal of merchantable fish per boat, and half a quintal
for every boats’-room, including the ships-rooms of ships fishing on the
bank, that had no boats; with the like proportionable rate upon such
persons in trade as were not concerned in the fishery; this rate was
only for one fishing season. He erected several pair of stocks, and he
expressed a hope that the measures he had taken would be sufficient to
suppress the great disorders that had so long prevailed.
But he says he most feared, that as the best of the magistrates were but
mean people, and not used to be subject to any government, they would
be obedient to orders given them, no longer than they had a superior
amongst them. He says, that he and _Lord Vere_ had done many acts of
justice to the inhabitants and planters, particularly at _Placentia_,
where they restored several plantations that _Colonel Gledhill_ had
unjustly possessed for several years; and many more might have been taken
from that officer, had the real proprietors been on the spot to sue for
them[48].
[Sidenote: Opinion on raising money by the justices.]
When _Lord Vere_, and _Mr. Osborn_, returned to England, they made a
report of what they had done; in order to be ascertained of the ground on
which they acted, they wished the opinion of the law-officers might be
taken on some points, and four questions were accordingly referred to the
attorney-general, then _Sir Philip Yorke_. The main point was the levying
money for building the prisons; and the attorney-general was clearly of
opinion that the justices of the peace in Newfoundland had not sufficient
authority to raise money for building a _prison_, by laying a tax upon
fish caught, or upon fishing-boats; the rather because Stat. 10 & 11
Will. 3. directs that it shall be a free trade. The power of justices of
the peace in England for building gaols depends, says he, upon Stat. 11 &
12 Will. 3, c. 19. by which they are enabled to make an assessment upon
the several divisions of their respective counties, after a presentment
made by the grand jury at the assizes, great sessions, or general gaol
delivery. As the justices of peace were by their commissions, to act
according to the law of England, he apprehended they ought to have
pursued that act of parliament as nearly as the circumstances of the case
would admit, and to have laid the tax, after a presentment by some grand
jury; and then it should have been laid upon the _inhabitants_, and not
upon the _fish_ or _fishing-boats_. So far as the people had submitted to
this tax, there might, he said, be no occasion to call it in question;
but he could not advise the taking of rigorous methods to compel a
compliance with it.
As to assaulting any of the justices or constables, or any resistance to
their authority; that, says he, might be punished by indictment, fine,
and imprisonment at the quarter sessions; and for contemptuous words
spoken of the justices or their authority, such offenders could only be
bound to their good behaviour. Destroying the stocks or whipping-posts
were indictable offences. He was of opinion the justices could not decide
differences relating to property, their power being restrained wholly to
the criminal matters mentioned in their commission.
He thought neither _Captain Osborn_, nor the justices had power to raise
any tax for _repairing churches_, or any other public work, except such
works for which power was given to justices of the peace in England to
levy money, by particular acts of parliament[49].
_Mr. Fane_ was likewise consulted upon these points, and was of the same
opinion; however he adds, for their lordship’s consideration, admitting
the Stat. 11 & 12 Will. 3. had not been strictly pursued, yet as the
assessment of fish was equally laid, as the people had submitted to it,
as no other way could be thought of for raising the tax; and as his
majesty’s commission would be intirely ineffectual, unless a gaol was
built, whether any inconvenience could arise, if upon the refusal of any
of the persons assessed, the method laid down by Stat. 11 & 12 Will.
3. were pursued to compel a compliance with it[50]. Upon being again
consulted, he says, he thought _Captain Osborn_, as he had acted with so
much caution and prudence, and had taken no arbitrary step, in execution
of his commission, could not be liable to a prosecution in England, in
case the inhabitants should not acquiesce in the tax. He thought it
absolutely necessary the tax should be levied according to the Stat. 11
& 12 Will. 3. and notwithstanding the proceeding already had was not
entirely agreeable to that law, he thought _Captain Osborn_ would be very
well justified in pursuing it, as it seemed the only method whereby the
design of his majesty’s commission could be executed[51].
[Sidenote: Contest between the justices and fishing admirals.]
Such were the discussions raised on the occasion of these attempts
to improve the police of the island. _Mr. Osborn_ again went to
Newfoundland: but in a letter from St. John’s in September 1730, he gives
a very bad account of the new institution. He says, he had hoped that a
proper submission and respect would have been paid to the orders he had
given, and to the magistrates he had appointed; but instead thereof, the
_fishing admirals_, and some of the rest of the masters of ships and
traders in the island had ridiculed the justices’ authority very much,
and had used their utmost endeavours to lessen them in the eyes of the
lower sort of people, and in some parts had, in a manner, wrested their
power from them. The admirals had brought the powers given them by the
fishing act in competition with that of the justices, and had not even
scrupled to touch upon that of the _governor_. All this discord proceeded
from a jealousy the admirals and the rest of the masters of ships had
conceived, that their privileges granted them by Stat. 10 & 11 Will. 3.
were invaded by these magistrates; which power, says he, “those admirals
could hardly ever be brought to make use of (without it was to serve
their own purposes) before, nor till they saw these officers established;
and they are now, adds the governor, doing all they can against these
men, only because they bear this commission. Indeed, says he, I find by
their will, they would be sole rulers, and have nobody to controul them
in their arbitrary proceedings. He expostulated with them, but it seemed
to serve no other purpose than to raise their resentment against him, as
the abettor of the justices. He could not charge the justices with having
taken any arbitrary steps; their fault was rather the contrary, whereas
the admirals were guilty of many.”
“The commission of the peace was in general disliked by all the _masters
of ships_, who were the chief people that opposed most of the steps the
governor had taken; for which reason, and partly from the indifference
of some of the justices, in their offices, who thought they suffered in
their way of trade, and got the ill will of the people they dealt with,
and partly from the incapacity of others, the commissions of the peace
were but indifferently executed. However the governor, notwithstanding
this opposition, proceeded to make appointments in places where he had
before made none.”
The _prison_ and _court house_ at St. John’s were nearly finished, and
people had very well complied with the rate. He agreed to a presentment
for a rate to build a prison at _Ferryland_; and he said, he did not
doubt but the very sight of these two prisons would, in some measure,
check many people in their evil courses[52].
Memorials were presented to the governor, by the justices of _St.
John’s_, complaining that they were obstructed in their duty by the
fishing admirals, who had taken upon them the whole power and authority
of the justices, bringing under their cognizance all riots, breaches of
the peace, and other offences, and had seized, fined, and whipped at
their pleasure; they had likewise appointed public-houses to sell liquor,
without any licence from the justices; the admirals told the justices,
_they_ were only _winter justices_, and seemed to doubt of the governor’s
authority for appointing; that the authority of the admirals was by act
of parliament—the _governor’s_ only from the privy council[53]. This
distinction in the authority from whence they derived their power, was
thought sufficient for the admirals to presume upon; and the comparative
pretensions of them and the justices were rated accordingly in the minds
of the ignorant and malicious[54].
The towns in the west were not backward to join in this clamour against
the justices; they complained that the governor had taken the power out
of the hands of the fishing admirals, and vested it in the justices, who
had proceeded in an arbitrary way to tax the servants and inhabitants;
had issued out their warrants not only against servants, but against
the masters of vessels themselves, in the midst of their fishery; to
their great prejudice, and in defiance of the admirals and the act of
parliament. They suggested that these justices were, some of them New
England men; and none of them ever coming to England, as the admirals
did, there was no redress to be obtained against them for their illegal
proceedings. They said, some of the justices supplied the fishermen and
seamen with liquor at exorbitant rates, though the merchants would
supply them at a moderate advance. After stating such plausible topics,
which, it was well known, would always be listened to when Newfoundland
was in question; they prayed, “That such justices might have no power
during the stay of the fishing ships; but that the admirals might resume
their authority, and that the commodore and captains of men of war should
be ordered to be aiding and assisting to them therein[55].”
[Sidenote: Opinion on the authority of the admirals.]
This competition between the fishing admirals and the justices was taken
into consideration by the board of trade, who called for the opinion of
_Sir Philip Yorke_, then attorney-general, and he reported, that upon a
view of the commission to the justices, of Stat. 10 & 11 Will. 3. and of
all the complaints, it appeared to him the whole authority granted to the
fishing admirals was restrained to seeing the rules and orders contained
in that act, concerning the regulation of the fishery, duly put in
execution; and to the determination of differences arising between the
masters of fishing boats, and the inhabitants, or any bye boat-keepers,
touching the right and property of fishing-rooms, stages, flakes, &c.
which was a sort of civil jurisdiction in particular cases of property;
whereas the authority of justices extended only to breaches of the peace.
He was therefore of opinion, that the powers granted to the justices were
not inconsistent with any of the provisions of the act, and that there
was no interfering between the powers given by the act to the admirals,
and those by the commission to the justices[56].
The struggle between the fishing admirals and the justices was still
kept up; the west country merchants, and masters of ships supporting the
former, and the governor standing by the latter. This produced complaints
on both sides; and no doubt, in such a contest a just cause of complaint
might often be found on both sides. But the aggressors were certainly
those who set themselves against the authority of the governor and
justices, and who, by their conduct on this occasion, plainly shewed
they wished the inhabitants and poor planters should be deprived of all
protection from legal government, and should be left wholly at _their_
mercy.
It was given in special charge to the succeeding governor, _Captain
Clinton_, and to his successors, to make a report of what was done
towards carrying into execution the new commission of the peace. In
compliance with that charge, we find the governors return such accounts
of the opposition of these admirals to the civil government, as are
hardly to be credited but by those who have read what went before; and
after that it would be tiresome and nauseous to detail any more upon the
subject[57]. This contest continued for some years, till it was found
that no opposition could induce his majesty’s ministers to withdraw this
small portion of civil government, which had not been granted till it
had been loudly called for by the necessities of the island. The fishing
admirals then became as quiet, and useless as before, and contented
themselves with minding their own business, in going backwards and
forwards to the banks.
While this question of the competition between the fishing admirals, and
the justices, was agitated, _Mr. Fane_ also was consulted, respecting
the distinct jurisdiction of these officers, and he agreed in opinion
with the attorney-general; he also at the same time delivered an opinion
that is worth remembering; namely, that all the statute laws made here,
previous to his majesty’s subjects settling in Newfoundland are in force
there; it being a settlement in an infidel country; but that as to the
laws passed here, subsequent to the settlement, he thought they would
not extend to that country, unless it was particularly noticed[58]. The
question then will be, _when_ did this settlement take place? And it may
be urged, that the policy having all along been to prevent settlement,
and that persons should resort thither only for the fishing season,
there is to this purpose a settlement commencing annually; and that
in truth, British subjects carry with them the laws of this country,
as often as they go thither; if so, all the law of England, as far as
it is applicable to the state and circumstances of Newfoundland, is
constitutionally and legally of force there. This was a question of much
importance, but it has since been settled by the wording of the act of
last session for establishing a court there; which court is to determine
according to the law of England, as far as the same is applicable to the
island.
[Sidenote: A commission of oyer and terminer proposed.]
Nothing material appears respecting the civil government of
Newfoundland, till the year 1737, when the board of trade listened to
the representation that had frequently been made by the governor, of
the inconvenience of sending over to England for trial, persons who had
committed capital felonies. In such cases the witnesses were glad to keep
out of the way; the felon was sent to England, without any person to
prove his guilt; a great expence was incurred, justice was disappointed;
or if the fact were proved, the poor witnesses was left to get back as
they could, with the expence of their voyage and residence, and the
certain loss of one season’s fishing.
It had been provided by stat. 10 and 11 Will. 3. that such capital
felonies might be tried in any county in England; and in the commission
of the peace lately given, this policy was so closely adhered to, that
the justices were therein restrained from proceeding _in cases of doubt
and difficulty, such as robberies, murders, and felonies, and all other
capital offences_. It appeared to the board of trade that this scruple
might now be got over; and they proposed inserting in the commission
that was to be given to _Captain Vanbrugh_, a clause, authorising him
to appoint _commissioners of Oyer and Terminer_; but the board wishing
to be assured that the king’s prerogative was not restrained in this
particular, by the above provision in stat. 10 and 11 Will. 3. they
consulted the attorney and solicitor general, who thought the king’s
power was not abridged by that act. The board, in their representation
to his majesty, state the example of a commission being granted to the
commodores with other persons, for trials of piracy, as a precedent
for trusting them with this authority to issue commissions for trying
felons; and that it was no more than was given to other governors of
plantations. But they inform his majesty, that as this power might be
too much to be entrusted in the hands of judges and juries very little
skilled in such proceedings, they had added an article, which restrained
the governor from allowing more than one court of Oyer and Terminer in a
year, and that only when he was resident; and he was further instructed,
not to suffer any sentence to be executed, till report thereof be made to
his majesty[59]. But when the commission went before the privy council
for approbation, all that part which gave this authority was directed to
be left out; so fearful were they of trusting such authority to those in
whom they had lodged the civil government of the island[60].
[Sidenote: Such Commission issued.]
So this point rested till the year 1750; when _Captain Rodney_, who was
then governor, pressed the secretary of state for such a power to be
granted. It was referred to the board of trade, where they recurred to
what was projected in the year 1738 for _Captain Vanbrugh’s_ commission.
A doubt arose with the board, whether this power might be given by
_instruction_, or whether it must be inserted in the commission; and _Sir
D. Ryder_, then attorney-general, being consulted, he was of opinion,
that such power could not be granted by instruction, nor any otherwise
than under the great seal; but that the manner of exercising such power
might be prescribed by instruction; he thought the clause drawn for the
commission of 1738 was sufficient, only that neither the power of trying,
nor that of pardoning _treason_, should be entrusted with the governor,
or any court erected by him. The commission issued accordingly, with this
new power, to _Captain Francis William Drake_[61].
It may be remarked of this commission of Oyer and Terminer, issued under
the new power given to the governor, that it has not been executed
without some question being raised as to its legality. Persons, who were
obstinately bent to believe there was no law in Newfoundland but stat.
10 and 11 Will. 3. were disposed to doubt the power of the crown to give
authority for issuing this, as well as the commission of the peace. It
has been the interest and inclination of many at Newfoundland to contest
every thing that was not founded upon the same parliamentary authority
as stat. 10 and 11 Will. 3. But this spirit, whether of ignorance or
wilfulness, has worn off, in a great measure, of late years, though
it is occasionally at work even now. And it is to be lamented at this
moment, that the advice given by the board of trade in the year 1718,
and afterwards on the occasion of establishing the civil government in
1728, was not followed; and an act of parliament passed for remedying all
the abuses and irregularities at once, instead of resorting to the half
measure that was then adopted, and which had all the difficulty we have
seen to support itself.
If we are to judge from the dearth of matter in the books of the board of
trade, things went on very quietly at Newfoundland for several years. We
only find some scattered facts of no great importance.
[Sidenote: Lord Baltimore revives his Claim.]
In the year 1754, _Lord Baltimore_ laid in his claim to be put in
possession of a large tract of land in the island, by the name of _the
province of Avalon_, and of all the royal jurisdictions and prerogatives
thereto belonging, and prayed that his majesty would approve _John
Bradstreet, Esq._ as governor thereof. This grant has been before
mentioned[62]. A claim so important was referred by the board of trade to
the attorney and solicitor general; who, after inspection of such papers
as were furnished by the board, and hearing what could be urged by Lord
Baltimore, were of opinion, that as, notwithstanding the determination in
1660 in favour of the grant in 1623, there was no evidence of any actual
possession of the province, nor the exercise of any powers of government
there by the Baltimore family; as, on the contrary, it was most probable,
that, at least from 1638, they had been out of possession; as from the
year 1669 there had been many proceedings, which appeared from the books
of the board of trade, and even an act of parliament passed in the 10 and
11 Will. 3. inconsistent with the right now set up, without taking the
least notice thereof, and without any claim or interposition on the part
of the Baltimore family; and as his majesty’s approbation of a governor
ought to be in consequence of a clear title of proprietorship, they were
of opinion, his majesty should not comply with the petition. This opinion
of the law officers seems to have been adopted by the board, and no more
has since been heard of the province of _Avalon_[63].
The board of trade in November 1758, shewed a disposition to take into
consideration the trade and fishery of Newfoundland, which were then said
_to have declined of late years_. For the purpose of obtaining every
information that could be derived from those experienced and interested
in the question, they directed letters to be written to the towns in
the west; but they received for answer nothing but such matter as had
relation to the inconveniences resulting to the trade from a state of
war; and the only remedies proposed were a due regulation of convoys, and
that seamen employed in that trade should not be subject to pressing[64].
[Sidenote: The Peace 1763.]
After the conclusion of the peace in 1763, a more favourable opportunity
seemed to present itself for doing something towards the encouragement
of the fishery. Upon this occasion, as upon former ones, when this
subject was under deliberation, the board of trade called upon the
western towns for advice and information; and now they joined to them
such towns in _Ireland_ and _Scotland_ as had lately engaged in that
trade; namely, _Cork_, _Waterford_, _Belfast_, and _Glasgow_.[65]
The French turned their attention to the arrangements to be made in their
own fishery, in consequence of the peace. The French ambassador presented
to our court a project of arrangement, to be reciprocally agreed upon
between the two crowns, for avoiding disturbance and dispute between the
English and French in carrying on the concurrent fishery. This matter
came before the board of trade, who referred it to _Sir George Hay_,
the king’s advocate, and _Sir Fletcher Norton_, and _Mr. de Grey_, the
attorney and solicitor general, for their opinion, whether the project
was consistent with stat. 10 and 11 Will. 3.? and whether the crown
could legally enter into, and had power to enforce such regulations,
so far as they related to the subjects of Great Britain? To which they
answered, that the project contained many things contrary to the act, as
well in respect of the rights of the king’s subjects, as to the mode of
determining controversies arising there; and that the crown had no power
to enter into, or enforce such regulations[66].
It was, however, thought proper to draw up some _additional instructions_
to the governor, with a view of preventing any interruption or
disturbance being given by the English to the French in carrying on their
fishery within the limits appointed by treaty. These were also submitted
to the same law-officers for their opinion as to the statute, and the
power in the king to make them. The law-officers made some alterations
in these instructions, and declared, that in such form they might be
legally given to the governor, being conformable with the thirteenth
article of the treaty of Utrecht, and not repugnant to the statute.
For, say they, although the statute seems to confine the whole trade of
Newfoundland to English subjects; yet as the French were at the time of
passing the act, and had been for many years before, in possession of
several parts of the island, and notoriously carried on an open fishery,
and claimed to be entitled thereto; and as that claim, and the exercise
of a fishery there, had not been rejected or disallowed by the treaty of
1686, nor by the treaty of _Ryswick_ in 1697, although several petitions
of merchants and others had been presented to the house of commons in the
year 1696, complaining of encroachments of the French upon the English
trade and fishery there; it seemed to them, that the statute was not
meant to extend to such parts of the island, and its adjacent isles
and places, as were then left in the possession of the French; nor to
abridge or restrain the power of the crown over the same, consequential
upon the making of peace; the exercise of which, in this instance, had
received the repeated approbation of both houses of parliament in their
resolutions upon the treaties of _Utrecht_ and _Paris_[67].
The board of trade adopted the amendments made by the law-officers,
and recommended to his majesty the instructions so altered to be given
in charge to _Mr. Palliser_, then governor of Newfoundland. They took
occasion, in their representation at that time, to enlarge upon the
nature of that trade.
[Sidenote: Remarks of the Board on Stat. 10 and 11 W. 3.]
They said, that in framing these additional instructions, it became
necessary to consider, with the closest attention, the provisions and
regulations of stat. 10 and 11 Will. 3.; which act, having been framed
and passed at a time when the crowns of Great Britain and France had
distinct rights and possessions on that island, and the subjects of both
carried on distinct fisheries upon those parts of the coasts, which
belonged to each respectively, was, they humbly conceived, in no respect
properly applicable to the permissive fishery, which the subjects of
France were entitled by treaty to carry on in common with the English
subjects within the limits described; although, being an act in full
force, they had found themselves under the necessity, in framing these
additional instructions, to conform to the regulations and provisions
of it, in many points, which did, in their opinion, render those
instructions less effectual and extensive than they might otherwise have
been.
But independent of this objection to the act, they conceived it highly
exceptionable in almost every other light in which it could be viewed.
The regulations intended for the fishery were in general by no means
applicable to the present state of it, and such of them as might be
of use were not enforced by proper penalties. And, considered as a
regulation of government and civil jurisdiction, this act, they said, was
the most loose and imperfect that could have been framed, and necessity
had already introduced deviations from it in many essential points.
Without entering into the particular regulations of the act, and
considering only its principal imperfection, namely, the fishery of the
island being altogether changed and varied from what it was, when the
act was passed, it appeared to them to be disgraceful to suffer it to
remain in the statute-book. But as they feared it was too late in that
session to enter upon any new parliamentary regulations, the further
consideration must be deferred for the present, unless his majesty should
be of opinion that a repeal of the act should be moved for, and a short
law enacted, impowering the king, by proclamation, order in council,
or instruction to the governor, to make such regulations with respect
to this branch of commerce, as he should, with the advice of his privy
council, judge most expedient[68].
But nothing was done towards correcting or repealing an act that had been
condemned so often by public and private opinions of persons best able to
judge of its merits.
The attention of government was now occupied by the questions which the
late treaty had brought forward. The French court, more anxious than ever
for the interests of their fishery, had started a doubt about the limits
at Newfoundland, which drew on a long discussion at the board of trade.
It had been intimated in the before-mentioned project of arrangement, and
was afterwards pressed in a special memorial from the French ambassador,
that _Point Riche_, mentioned in the treaty of Utrecht, was the same as
_Cape Ray_; and that the French limits on that side should, therefore,
be extended as low as _Cape Ray_. This piece of geography was, on their
part, founded on no better authority than a map of _Herman Moll_; and
was shewn, by the board of trade in a representation, drawn with great
accuracy and much at length, to be without any foundation. In this report
of the board, it is demonstrated that all the French geographers united
with those of England in assigning different places to _Point Riche_ and
_Cape Ray_, and that the wording of several public papers and documents,
made it beyond all doubt the clear intention of both nations, that the
French limits should end at _Point Riche_, and should not come down
so low as _Cape Ray_, confining the French to the limit called _Petit
Nord_[69].
The proceedings of the French at this time gave great uneasiness. At
the close of this year, the board of trade made a representation to
his majesty, respecting several ships of war being sent by the French
to _St. Pierre_ and _Miquelon_, which had been ceded to them by the
peace; these, it was supposed, were sent thither, with a view to a sudden
rupture, or at least to give improper countenance and hopes to the French
in those parts; at any rate such a measure was considered as contrary
to the treaty, by which those places were ceded merely as a shelter
to the French fishermen[70]. It was feared a fishery was meant to be
forced there out of the French limits, and an illicit trade carried on
with the Indians. The ruinous state of our forts and fortifications in
Newfoundland made these appearances the more alarming. It was therefore,
recommended to put the forts upon a respectable footing[71].
[Sidenote: Representation 1765.]
The board still kept in view the improvement of the advantages obtained
for the fisheries in those parts, amongst which that of Newfoundland
was the chief; and on the 29th of April 1765, they made a second
representation to his majesty, more full than either of the former; and
for those who wish to be informed of the nature of this trade, a very fit
companion to the representation made in the year 1718. This was followed
by a third, dated the 27th of March 1766, which also deserves particular
attention.
Among other improvements meditated for Newfoundland, it was resolved to
establish custom-house officers. The commissioners of the customs, in
March and May 1764, issued out deputations constituting a collector and
controller of the customs at Newfoundland. We find that _Captain Byng_
had, in the year 1743, appointed a naval officer as a necessary assistant
to him, in checking the illicit trade there carried on. It does not
appear whether this appointment was continued by his successors.
[Sidenote: Newfoundland a plantation.]
A seizure was made about this time at Newfoundland of a ship, for
want of a register; it appeared to the commissioners of the customs
that Newfoundland had hitherto been looked upon merely in the light
of _a fishery_, and vessels going thither were not thought liable to
the same regulations, as those going to the other British colonies
and plantations: they now applied to the treasury for advice on this
point[72]; and the treasury referred it to the board of trade for their
opinion; who report, that they saw no reason to doubt its being a part
of his majesty’s plantations, and they thought its commerce, and the
ships bound thither, should be under the same regulations as in the other
plantations: their lordships further thought, that as the governor had
suspected that many foreigners were sharers in the fishery and commerce
of that island, and had made seizure of three ships, in two of which it
clearly appeared that Spaniards were concerned, it was highly expedient
and necessary, that the laws of navigation should be carried into
execution there[73].
[Sidenote: Custom-house established.]
Thus by the establishment of a custom-house, and the introduction of the
laws of navigation, was another pillar added to the civil government
of that place. But this was considered and treated as an innovation by
those who clamoured for a free fishery, and Stat. 10 & 11 Will. 3. and
this institution being effected without the authority of parliament,
was questioned in the same manner, and upon the same ground, as the
commissioners of the peace, and of oyer and terminer. The article of
fees was a topic on which a complaint might be founded with most hopes
of success, where the interests of a fishery were concerned. This the
merchants pushed with petitions and memorials for some time without
prevailing: and the fees of the custom-house are a cause of complaint to
this very day.
[Sidenote: Property in flakes, &c. discussed.]
The activity of _Mr. Palliser_ during his government, had contributed to
bring forward the old debated question of property in flakes and stages.
These questions were of different sorts, the first related to the parts
between _Bonavista_ and _Point Riche_, the two limits of the French
fishery. Many tracts of land within those limits were claimed as private
property; and, as such, might interfere with the concurrent right of the
French to fish there. This matter was agitated at the board of trade,
and an additional instruction upon that head was given to the governor,
by which he was commanded, not upon any pretence whatsoever, to allow any
_exclusive possession_ to be taken, as private property, of any lands,
rivers, or islands in the northern parts, between _Bonavista_ and _Point
Riche_; taking special care that such ships as resorted to that part,
should chuse their stations as they arrived, and should take up, and
occupy, subject to the governor’s controul, such space only of beach as
was proportioned to the number of their boats, conformable to Stat. 10 &
11 Will. 3[74].
[Sidenote: Justices appointed.]
This provision was with a design of preserving peace between the
fishermen of the two nations. But the exclusive property which some
persons claimed in stages, flakes, and beach, was a question that applied
to the whole of the island; and had become of a magnitude to call for
some discussion and adjustment. The board of trade thought proper to
consult _Mr. Yorke_, then attorney general, upon this point. They
proposed to him two questions; first, Whether exclusive property in
any part of Newfoundland can be acquired under colour of any provision
of Stat. 10 & 11 Will. 3, without a grant or patent from the crown?
secondly, If any part of that act does warrant such exclusive property,
what is the nature and extent of it? Can it be acquired for the purposes
of cultivation, and settlement of the land, or is it confined to the
purposes of fishing; and in what manner, and upon what principles, and by
whom are any disputes arising thereupon to be decided?
By the answer to these queries, it was hoped to obtain some clear
judgment upon these points, for the direction of the governors; who
had sometimes considered this as real, sometimes as personal property,
at other times as no property at all; and were involved in great
difficulties, and exposed to vexatious suits for what they had done
at Newfoundland, in relation to this doubtful sort of occupation and
possession. But I do not find that these questions were resolved by
the attorney-general, or that the board pressed him for any answer to
them[75]. So that these points remained for examination in after-times.
_Mr. Palliser_ carried into execution upon the coast of _Labrador_
(which by proclamation, the 7th of October 1763, had been separated from
_Canada_, and annexed to the government of Newfoundland) that plan of a
free fishery, to be carried on by ships from Great Britain, which was
practised at Newfoundland, and which he had shewn himself so determined
to maintain upon its original principles. In order to accomplish this
he had contest with exclusive property. Several persons claimed on that
coast a property in fishing-posts and settlements; some under grants
from the French governors of _Canada_; some from _General Murray_. These
he broke in upon, and withal he treated the American subjects of Great
Britain, who were concerned in some of these settlements, as excluded
from this fishery, by Stat. 10 & 11 Will. 3. which statute he held
to apply to _Labrador_, now it was brought within the government of
Newfoundland, and under the authority thereof he contested the private
rights set up on that coast. To give effect to these principles, he made
some _rules and regulations_ for carrying on the fishery in those parts.
These novelties caused many complaints to be brought before the board
of trade, which led to very long enquiry for three or four years, at
different times.
Upon these questions, the board of trade took some measures; with regard
to the Americans, they were of opinion that it was not the design of the
Stat. 10 & 11 Will. 3. to exclude from the fishery ships fitted out from
America. With regard to the other points which turned upon considerations
of property and legal topics, they referred to the attorney and solicitor
general, some cases of grants from French governors. Upon view of these
cases, the law officers were of opinion, that these could not be allowed
as valid in any judicial enquiry, and ought not to stand in the way of
any rules, or regulations to be made in the government of that coast[76].
Some time after, it appeared to the board, that the forcing of these
rules and regulations, in order to throw open the fishery there to
adventurers from Great Britain, was not a wise policy. They were
calculated only for a cod, or whale fishery, whereas the seal fishery,
which was most pursued here, was a _sedentary fishery_, and needed
the encouragement of exclusive property, to support the expence of
the adventure. They therefore, on the 24th of June 1772, recommended
to his majesty that the coast of _Labradore_ should be re-annexed to
the government of _Quebec_[77]. This would certainly put an end to the
disquietude under which persons laboured, who had private property there,
which they saw exposed to the operation of Stat. 10 & 11 Will. 3. This,
however, does not seem to have been the reason for the board recommending
such measure; for being called upon to reconsider their opinion as to the
re-annexing of the coast of _Labradore_ to the government of _Quebec_;
they said, that it was not in consideration of the loss which individuals
would sustain, if private property was disturbed, but they said, when
it appeared to them that a great part of that coast was claimed as
private property, under grants from the governors of _Canada_; and that
his majesty was bound by treaty to admit those claims; they thought he
could not in justice enforce regulations that were subversive of those
rights[78]. According to the principle here laid down, the _Quebec act_
Stat. 14, Geo. 3, c. 83, annexed to that government all such territories,
islands, and countries as had, since the 10th February 1763, been part of
the government of Newfoundland, and they were so to continue during his
majesty’s pleasure[79].
[Sidenote: Stat. 15, Geo. 3.]
The last measure taken respecting Newfoundland, during this period, was
passing Stat. 15, Geo. 3, c. 31, commonly called in the island, _Sir Hugh
Palliser’s act_; it being supposed to have originated from the advice and
assistance, principally, of that gentleman. The design of this act was
to favour, and keep alive, the principle of a ship-fishery carried on
from England: one of the regulations of it, was to enforce the payment
of wages, another to secure the return of seamen, and fisherman to this
country; the provisions of it are all enforced by a special penalty, the
want of which in Stat. 10 and 11 Will. 3. had been so often lamented.
The nature of the provisions of this act, and the rigour with which it
was easy to enforce them, contributed to make this law very unpopular in
the island; and after all the alterations that had been made, without the
aid of parliament, since Stat. 10 & II Will. 3. none was so ill received
as this; but, being an act of the legislature, it was submitted to with
silent discontent. When persons concerned in this trade complain of the
innovations made of late years in the trade of Newfoundland, and express
a wish to be put on the footing of Stat. 10 and 11 Will. 3, they mean,
that they wish to be relieved from this act of parliament; and they
have, many of them, no scruple to say, that since _Sir Hugh Palliser’s
act_, it is with the greatest difficulty that merchants can carry on the
fishery with profit to themselves.
The regulations made by this act were very important. It was now
declared, that the privilege of drying fish on the shores of
Newfoundland, should be enjoyed only by his majesty’s subjects arriving
at Newfoundland from Great Britain, or one of the British dominions in
Europe; which settled the question that had been raised in favour of the
colonists. This act gave several bounties for encouraging industry in
the take of fish. It provided for securing the return of the seamen to
Europe; by empowering the master to detain, out of their wages, forty
shillings for paying their passage home; and obliging him to see his
men put on board passage-vessels. It forbad masters to suffer seamen to
take up more than half their wages in articles of supply; and obliged
them to pay the other half in cash, or good bills on England or Ireland.
It gave to the seamen a lien on the fish, and oil for their wages;
and, to secure the execution of this act, penalties were annexed to the
various provisions, and a jurisdiction given to the court of session, and
vice-admiralty to enforce those penalties.