Chapter IV: Part II: Sidenote: PART II (1)

From Stat. 10 & 11 Will. 3, to A. D. 1728.]

_Mr. Larkin’s Observations—Character of the fishing
Admirals—Character of the Commanders—Want of Police—Opinion
of the Board 1706—Representation 1708—For Sea Commanders to
command at Land—Such Commission issues—Laws and Orders made
at Newfoundland—Representation 1718—Claim of the Guipuscoans
to fish—Of the Lands ceded by the French—A Salmon Fishery
granted—Opinion on the 7th Sec. of Stat. 10 and 11 Will.
3.—Representation 1728—Recommends a civil Government—A civil
Governor is appointed—Disorders of Newfoundland, and Conduct
of the fishing Admirals during this Period—Complaints from the
Merchants._

It has ever been the disposition of the principal merchants in the west of England to extol the provisions of stat. 10 and 11 Will. 3. as the soundest policy that could be pursued in relation to the fishery. We know, after perusal of the former part of this historical enquiry, that there was always an opposition and jealousy subsisting between the _merchants and adventurers on the one hand_, and the _planters and inhabitants_ on the other; and the utmost credit we can give to the former, on this subject, is to believe, that this statute fully established their claims and pretensions, and gave them an ascendancy over the latter; and that they now saw sanctioned by parliament, what before depended upon a tenure of less validity. So far, and no farther, can this eulogy have a meaning; for as a scheme of regulation, that was to be generally beneficial, this act was, in the first place, no novelty; in the second place it seems never, from the very beginning, to have been completely executed; and thirdly, it gave power and jurisdiction to hands that were unfit to exercise it: and I shall presently shew, that those concede too much, who allow this act might have been a very good regulation at the time it passed; for it will appear from the best authority, that, at the very time it was passed, it was in no way of being carried into execution as the parliament intended.

To the _heads of inquiry_, which were delivered and given in charge to the commodore, who commanded the ships on that station, this act, and all the particulars of it, were now added; and there appear in the returns made thereto every year, their observations and opinion, both upon the act and its execution. Upon such a subject there cannot be adduced better authority than this. In the answers given to these _heads of inquiry_, and in the correspondence of the commodores, may be traced, from time to time, the actual state of the fishery; and it will be curious to bring together the information that may be collected from these sources. Among the earliest information of this sort, I find a letter from _Mr. George Larkin_, written from St. John’s in the year 1701. This was recently after the passing of the act; and the writer goes more fully into many points of the trade, than the officers of government usually did. These circumstances make this a valuable paper; and it becomes much more so, when it is considered, that Mr. Larkin was a gentleman bred to the civil law, who was sent out to make observations in the American settlements, for the information of government at home, as to the state of the Plantations, and the execution of the laws of trade and navigation.

[Sidenote: Mr. Larkin’s Observations in 1701.]

He begins by saying, that the rules and orders of this act were not so much regarded as he could wish, which he ascribes to there being no penalties in it. The trees were rinded, and the woods destroyed, as much as before passing the act; and in a few years, he thought there would not be a stick left fit for the use of the fishery within five or six miles of that, or other harbours. The flakes that were left standing, were most of them made use of by the inhabitants for firing in the winter.

He says, the then admiral of the harbour of St. John’s, _Captain Arthur Holdsworth_, of Dartmouth, brought over from England, that fishing season, two hundred and thirty-six passengers, all or great part of which were _bye boat-keepers_, and they were brought, under a pretence of being freighters aboard his ship, though it was only for some few provisions for their necessary use. These persons he had put and continued in the most convenient stages, &c. in the harbour, which all along, since the year 1685, had belonged to fishing ships; in so much, that several masters of fishing ships had been obliged to hire rooms of the planters. These bye boat-keepers were most of them, he says, able fishermen, and there was not one fresh man, or green man, amongst them, as the act requires. He says, that this person, and one or two more, who constantly used the fishery, made it their business in the beginning of the year, to ride from one market town to another in the west of England, on purpose to get passengers; with whom they made an agreement, that in case they should happen to be admirals of any of the harbours, they would put and continue Mr. Holdsworth, and such persons, in fishing ships’ rooms. This, he says, was a very great abuse and discouragement to the adventurers: besides, these bye boat-keepers could afford to sell their fish cheaper than the adventurers, which must lessen the number of fishing ships.

There was great complaint of the _New England-men_, who for seven or eight years, he says, had resorted to Newfoundland. They had also their agents in most of the harbours, and drove an indirect trade, supplying several commodities to the planters, which they ought to take from England. Such New England vessels generally made two or three trips in a year, with bread, flour, pork, tobacco, molasses, sugar, lime-juice, and rum. They sold cheaper in general, but obliged their purchasers to take certain quantities of rum. This the inhabitants sold to the fishermen, and so encouraged them to stay behind, and leave their families in England a burthen on the parish. The inhabitants also sold rum to their servants, who run in debt, and were forced to hire themselves in payment of their debt; so that one month’s profuse living, and a pair of shoes, often left them in bondage for a year; and good fishermen, who deserved fifteen or twenty pounds per annum, were thus made to serve for seven pounds. He says, the _New Englanders_, at the close of the year, used to inveigle away a great many seamen and servants, with promises of great wages; but these men were often disappointed, and turned robbers and pirates. The New England vessels were said, the last year, to have taken away five hundred men in this manner, in _Conception Bay_ only; many of these were headed up in casks to prevent discovery. He recommends, for preventing this practice, that the masters of New England vessels should give bond, when they cleared out, not to bring men from Newfoundland without leave from the commodore.

We find, in after times, the captains of the king’s ships used to oblige every New England master of a ship to give such bond, in a penalty of five hundred pounds, with two sureties in two hundred and fifty pounds each, not to carry any persons out of the island.

As to the fishery, he did not hear of more than one New England vessel fishing on the coast. Indeed it appears, that _their_ fishery was all carried on upon their own coast, where they had better fish, and that they looked to Newfoundland for nothing but the sort of traffic above-mentioned.

He informs us, that the inhabitants and planters of Newfoundland were poor, indigent, and withall a profuse sort of people, that cared not at what rates they got into debt, nor what obligations they gave, so they could have credit. But the seizing of their fish for debt, seemed to this gentleman to be both irregular and unjust, as to the time and manner of doing it; for the fishermen seeing the flakes stript before the fishing season was half over, were discouraged from proceeding any further; which often proved the ruin and overthrow of several planters’ voyages.

Debts used not to be paid till the 20th of August; but, for two and three years, he says, the flakes had been stript by night, and the fish carried off in June and July, without weighing. A second had come, and taken it from the first—the planter had had twenty or thirty quintals of fish spoiled in the scuffle, and the rest of his creditors were forced to go without any satisfaction. The poor fishermen, who helpt to take the fish, had, on these occasions, gone without one penny of wages—salt provisions and craft being always payable before wages; and he expresses astonishment, how the planters and inhabitants could procure hands from England to fish for them, considering how ill they used them.

[Sidenote: Character of the fishing admirals.]

Where complaints of this sort had been made to the commander in chief, he had ordered them to re-deliver the fish, and a dividend to be made. But there being five or six and twenty different harbours, besides coves, and it being a great distance from _Bonavista_ and _Fermose_, to _St. John’s_ to make complaints, the commander could do little; and the admirals, he says, did not concern themselves at all, but left all to the commander. These admirals, says he, ought to see to the preservation of the peace and good government among the seamen and fishermen, that the order and regulation of the fishery be put in execution; and they should keep journals: but instead of this, they were the first to break these orders, and there was not one of them, where _he_ had been, who had kept any journal at all.

He observes, that the late act of king William gave the planters a _title_, and it was a pity but that they had some laws and rules by which they should be governed; though, he says, it was the opinion of all, since he had come there, that it had been better, if all plantations had been discouraged, for the island was then become a sanctuary and place of refuge for all people that broke in England. Besides, the masters of the fishing ships encouraged several of their men to stay behind, persuading them they would soon get estates there; and this they did merely to save the charge of their passage back to England.

[Sidenote: Character of the Commanders.]

It had been customary for the commander in chief, upon complaints made, to send his lieutenants to the several harbours and coves, to decide all differences and disputes that happened between masters of merchant ships and the inhabitants, and between them and their servants; this gentleman declares it a shame to hear how matters had been transacted upon such occasions. He that made a present of the most quintals of fish, was sure to have the determination in his favour. He says, the whole country exclaimed against the lieutenants in _Captain Poulton_ and _Captain Fairbourne’s_ time; and did not scruple to declare, that some former commanders in chief had been a little faulty. He says, the then commander, _Captain Graydon_, had taken much pains to do the country justice, and to settle religion amongst them, and people seemed well satisfied with him. He says, there had never been any registry kept of the _orders_ or _rules_ that had been made for the good of the fishery. What one commander in chief had established, another had vacated; he says, he had prevailed with the present commander to leave an abstract of all such as had been made during his time.

[Sidenote: Want of Police.]

He says, that quarrels and disputes happened after the fishing season was over; and in the rigour of the winter season, masters beat servants, and servants their masters. He therefore recommends, that one of the most substantial inhabitants should be appointed in every harbour in the nature of a justice, for preservation of the peace, and tranquillity among them; and that some one, who understood the law, should be sent with the commander in chief, or should reside there, as should be thought most convenient, in the nature of a judge advocate, to decide all differences, and matters of _meum_ and _tuum_ between masters of ships, inhabitants, planters, and servants; that this person should have power to administer an oath to parties, or witnesses, for determination thereof in the most summary way, and that he should be obliged to go every year to the following places; viz. _Bonavista_, _Trinity_, _New Perlican_, _Old Perlican_, _Carboneer_, _St. John’s_, _Bay of Bulls_, and _Ferryland_, and to stay a fortnight or three weeks at each of them. He adds, that such a person would be useful there for several purposes, and among others, that a true account might be had from him, how all matters were transacted at Newfoundland[5].

The picture here given of Newfoundland is hardly heightened, or varied by any colouring to be found in the representations made by successive commanders. They are usually in the same strain. The grievances and complaints, the remedies and expedients are uniformly the same; and it is a remarkable circumstance in the history of this trade, that many of the papers relating to it, whether coming from the commanders, or from the merchants and adventurers, in the times of king William and Queen Anne, would apply to later times, as well as to those in which they originated.

The _heads of enquiry_ given in charge to the commanders, and the answers returned by them thereto, would furnish a history of the fishery. These heads soon encreased from twenty or thirty, to sixty or seventy. It is not my intention to go over all these, or to pursue every point that has arisen, at various periods, with relation to this fishery and trade; but principally to trace the progress made in affording that island some sort of _constitution_; and the settling of this, like the settling of all other constitutions, will involve in it the parties, and different interests that have, and still continue to prevail amongst the individuals concerned in the trade, both here and in Newfoundland.

In the answers made by Captain Graydon, the commander, at this time, we find, that a survey was made that year of all the encroachments made by the inhabitants upon the liberties of fishing ships, since the year 1685, and they were all corrected, as appears from him.—That the admirals of the harbours were the persons, who mostly brought bye boat-keepers, and put them in possession of ship’s rooms, under notion of their being freighters (as was before alledged) the admirals advancing them money in England at five shillings in the pound.—The admirals did not observe the rules prescribed in the act of parliament, but on the contrary, when they wheedled a poor planter into debt, they took his fish by force from him, and would even break open his house to get it. As to the admirals keeping journals, accounts, &c. he found but four of them _capable_ of doing it.—The admirals, before the 20th of August, used to hear some complaints, but after that, none were made to them, they being generally the greatest aggressors themselves.

Such are the observations made upon those points, that are more particularly for our consideration at present. We shall find, as we go on, how uniform were the complaints of abuses, and irregularities in the police and government of the island.

[Sidenote: Opinion of the Board 106.]

In the year 1702, the war with France broke out, and our fishery and concerns there were greatly disturbed by the French. During this, the questions agitated at the board of trade mostly concerned the defence of the island by sea and land. Notwithstanding this state of war, an order was made by the House of Commons, the 16th of January 1705-6, for laying before the house a state of the trade, and fishery; a state was for this purpose drawn up by the board; in this they give their opinion upon the different abuses and grievances; and, amongst other things, recommend that power should be given by parliament to the commanders of the queen’s ships, and to the admirals, to inflict fines and penalties on the breaches of Stat. 10 & 11 Will. 3, c. 25. they recommend also, that the commanders of the queen’s ships should have the power of custom-house officers to search ships from _New England_[6]—In the same year they recommended to her majesty, that the mayors of the towns in the west, should be written to, requiring them to enjoin the masters of ships, who might become admirals, to keep journals, and discharge the other duties required of them by Stat. 10 & 11 Will. 3, c. 25[7].

The board were called upon again the next year by the House of Commons for a state of the trade[8], which was accordingly furnished, and in this statement the same abuses were recounted and the same remedies were suggested for their correction.

On the 31 of March 1708, the House of Commons addressed her majesty, beseeching her to give directions, that the laws relating to the trade and fishery of Newfoundland might be effectually put in execution against such commanders of her majesty’s ships of war, or forts, or fortifications there, as should presume to exact, demand, or receive sums of money, or other rewards from any of the queen’s subjects, in their voyages, trade, or fishery to, from, or at Newfoundland: And that such commanders and officers should be strictly forbidden to keep, use, or employ any fishing boats for their own private use or advantage: further, that the laws relating to the fishery should be duly executed[9]. This address was occasioned by some complaints made against a _Major Lloyd_, who commanded the troops at _St. John’s_; but of this gentleman’s conduct there were different accounts; the most unfavourable seem to have prevailed with the House of Commons to come to this resolution.

This call for a due execution of the laws relating to the fishery, again drew the attention of the board of trade to the Stat. 10 & 11 Will. 3, c. 25. and the defect, so often complained of in that act, “not having any penalties specially annexed to the breach of it.” And on a question proposed by the board to Mr. _Montagu_, then solicitor general, he declared it to be clear, that although no particular penalty was mentioned in an act of parliament, requiring or prohibiting any thing, yet any offender against such act may be fined at the discretion of the court, when found guilty on an indictment or information[10].

[Sidenote: Representation 1708. For the sea commanders to command at land.]

The board then proceeded to make a representation to her majesty on the occasion of the before-mentioned address; in which they say, that no complaint had ever come to them of exactions, or demands made by commanders of the queen’s ships; and if there were, the offender should be prosecuted on Stat. 15 Car. 2. c. 16. That the charge against _Major Lloyd_, for letting out the soldiers to work in the fishery, was under examination at the board. But that for preventing any misconduct of officers with relation to the fishery and trade in future, they recommended, that the commodore, during his stay there, should have the command at land, as he used to have from the first sending out of a garrison, till within the last three years, when that practice was discontinued. They thought this would contribute better to support good order and peace, in a place where no regular civil government was established; and that it would enable him to superintend the queen’s stores, and to make better returns of the state of the trade and fishery. As to the execution of the act in general, they stated the abuses and irregularity subsisting in the island; the ignorance and partiality of the fishing admirals; and they recommended that the commodore should be impowered to redress and punish all offences, and abuses committed at Newfoundland against Stat. 10 & 11 Will. 3, c. 25.; as to those which he could not redress, they recommended he should inform himself whether the provisions of the act were duly complied with, and who were the offenders against them, in order that they might be proceeded against in this kingdom. They submitted whether it would not be proper to issue a royal proclamation for better observation of this law[11].

[Sidenote: Such commission issues.]

This representation was approved by the queen, and an order of council was made on the 20th of May 1708, directing a proclamation of the sort therein recommended, to issue; and also a commission to be prepared annually by the Lords Commissioners for trade and plantations, for the commodore of the Newfoundland convoys, to command at land, during his stay in those parts, with such further _instructions_ for putting in execution that act of parliament, as were set forth in the representation; the Lords were also directed to prepare a letter to _Major Lloyd_, disapproving his proceedings, and requiring him to yield due obedience to the commodore’s commission: all which was accordingly carried into execution[12]. _Instructions_ were delivered to the commodore for executing this commission to command at land; and in one of those he was directed to send answers to the _heads of enquiry_, which had long been in use, relating to the trade and fishery, and which were always prepared by the board of trade, and afterward given in charge to the commander by the lord high Admiral.

This change in the command at Newfoundland set the lords of trade upon an enquiry after the commission (before noticed) given in 1615 to _Captain Whiteburn_ out of the court of admiralty for impanelling juries[13]. It seems also, that it was in agitation for the commissioners of the customs to appoint an officer for preventing illicit trade in Newfoundland. The lords of trade were informed from the custom-house, that when a court of admiralty should be erected, and a person appointed to hear and determine causes on informations of seisures, a revenue officer should have his commission and instructions.

But the French had got so strong, and had so disturbed our possessions in the island, that every thing gave way to plans of immediate and necessary defence. Through the year 1710, the merchants were making representations to the board of trade, beseeching, that in any treaty of peace with the French, Newfoundland might be reserved wholly to the English. This idea was adopted by the board, and they appear to have pressed it strongly with her Majesty’s ministers[14].

[Sidenote: Laws and orders made at Newfoundland.]

In the year 1711, I find, what is called, _a record of several laws and orders made at St. John’s for the better discipline and good order of the people, and for correcting irregularities committed contrary to good laws, and acts of parliaments, all which were debated at several courts held, wherein were present the commanders of merchants’ ships, merchants, and chief inhabitants; and witnesses being examined, it was brought to the following conclusion between the 23d day of August and 23d day of October 1711._ Then follow fifteen articles of regulation[15], that must have been very useful; and it is worth considering whether such a local legislature, which the people seem in this instance to have created for themselves, might not legally be lodged somewhere, for making bye-laws and regulations, as occasion should require. The commander _Captain Crowe_, presided at this voluntary assembly. His successor, it seems, followed his example, and held a meeting of the same sort. These assemblies were somewhat anomalous, a kind of legislative, judicial, and executive, all blended together[16]; and yet perhaps not more mixed than the proceedings of parliaments in Europe, in very early times.

At the peace of Utrecht we were put into possession of Newfoundland in a way we had not enjoyed it before, for some years. Placentia, and all the parts occupied by the French, were now ceded to the king of Great Britain, in full sovereignty; the French retaining nothing more than a licence to come and go during the fishing season. A new prospect now opened; and the government, not less than the merchants, turned their thoughts to that trade with a spirit that promised itself all the fruits of this new acquisition. A _Captain Taverner_ was employed to survey the island, its harbours, and bays; a lieutenant-governor was appointed to command the fort at _Placentia_; the merchants beseeched the board of trade that the French might be strictly watched, and kept to their limits, and that a ship should go round the island, to see they left the different harbours at the close of the season.

_Captain Taverner_, who had great experience in that trade, and was much attended to at this time, gave in to the board some remarks on the Newfoundland fishery and trade; and also heads of a proposed act of parliament[17]. It appears from the observations made by this gentleman, as well as many others, that nothing was more strongly expressed by all persons, who shewed any anxiety, or experience on this subject, than the inefficiency of Stat. 10 & 11 Will. 3, and the necessity of going to parliament for new regulations.

It had become a doubt, whether that part of the island, lately ceded by the French, was subject to the provisions of Stat. 10 & 11 Will. 3. This point was brought forward, in consequence of the lieutenant-governor of the garrison at _Placentia_, and some of the French planters having, on leaving the place, disposed of their plantations for money, and, in this manner, attempted to convey a right and property, which was not recognised by the general usage of the island, as confirmed by that statute. This matter was brought before the board of trade, and their lordships were of opinion, that Stat. 10 & 11 Will. 3. extended to the ceded lands, and that all the beaches, and plantations there, ought to be left to the public use, and be disposed of, as directed by that act[18]. Instructions to that effect were accordingly given to the lieutenant-governor of _Placentia_[19].

Among the proposals and suggestions for improving the trade of Newfoundland, some papers from _Mr. Campbell_, in the year 1714 are deserving of notice[20].

The Newfoundland trade was taken up by the government in the year 1715, as an object of important consideration. _Captain Kempthorn_, then on that station, was specially charged to make enquiry, and report every information he could acquire; and I find a very long letter written by him to the secretary of the admiralty, and transmitted from thence to the board of trade. This letter is very full, and was submitted by the board to the king’s government, as containing suggestions highly deserving consideration[21]. The board were now satisfied that some new regulation ought to be made by parliament; and preparatory thereto, they resolved to write to the towns in the west, concerned in this trade, desiring them to furnish such information as they possessed upon a subject where they had so much experience[22]. They also laid a case before the attorney general, _Sir Edward Northey_, for his opinion on the defects of Stat. 10 & 11 Will. 3. and he was of opinion, that it would be necessary, in order to oblige the observation of the rules contained in that statute, for a new act to be passed, inflicting _penalties_ for not observing the same, and directing how and where such penalties should be paid; and he thought that a proclamation, requiring the observance of those rules (as was before proposed) would have no effect[23]. On this occasion. _Mr. Taverner_ suggested his remarks, and gave a sketch of a bill[24]. After the board had derived the information that was to be obtained from the different sources, where they had applied, they drew up a long _representation_ to his majesty, dated the 2d of March 1715-6 containing their opinion upon the abuses, suggesting the remedies that would be proper to be applied[25], and recommending that a bill should be proposed to parliament for giving effect to the suggestions there made.

[Sidenote: Representation 1718.]

Nothing was at that time done; but the board continued to pursue the course they had taken for obtaining information: for in August 1718, we find a very full answer given in by _Captain Passenger_ upon the whole of the subject of the trade and fishery; and in December following, the board made a _representation_ to his majesty, more elaborate, full, and comprehensive, than any performance that had yet been seen, respecting this trade and fishery; and to this they afterwards added the _heads of a bill_, to be proposed to parliament, for establishing the trade and fishery, and correcting the abuses to which it had been subject[26]. This representation, and the heads of the bill, have been lately laid before the house of commons, and are now printed by their order.

[Sidenote: Claim of the Guipuscoans to fish.]

About this time, the _Guipuscoans_ had set up an antient right to fish at Newfoundland; and application had been made to our court for asserting and allowing this claim. This matter was referred to the board of trade; and that board did, on the 11th of September 1719, make a _representation_ to the lords justices; in which they say, that by the fifteenth article of the treaty of _Utrecht_, the _Guipuscoans_ could claim no right, but such as they could make out by some prior title; they then recapitulated the ancient history of our discovery and possession of the island; and that by stat. 10 and 11 Will. 3. all aliens are expressly excluded from the fishery; and they conclude, that the island and the fishery are the undoubted property of his majesty, and that the _Guipuscoans_ had no manner of right to fish or trade there[27]. They take this occasion to remind the lords justices of the representation they had made last year, and of the heads of a bill then suggested for better regulating the fishery.

[Sidenote: Of the Lands ceded by the French.]

The parts that had been surrendered by the French, occasioned in various ways great contest and discontent. We have before seen, that it was the opinion of the board, that those parts fell under all the regulations of the stat. 10 and 11 Will. 3.; and this was confirmed by the opinion of the law officers. Another difficulty arose, in consequence of an agreement made by the Queen with the king of France, which went beyond the terms of the treaty of Utrecht. The French were by the treaty allowed to remain and enjoy their estates and settlements, provided they qualified themselves to be subjects of Great Britain—those who would not do this, had leave to go elsewhere; and take with them their _moveable_ effects. _Queen Anne_, in consideration of the king of France releasing a number of protestant slaves out of the gallies, permitted the French inhabitants of _Placentia_, who were not willing to become her subjects, to sell their _houses_ and _lands_ there. It became therefore a _question_, whether this permission of the queen was valid, so as to dispose of _lands_ which came to the crown by treaty. This point was submitted to _Mr. West_, counsel to the board of trade, for his opinion; and it was material to settle it, because many British subjects had purchased such lands from the French inhabitants.

His answer was, that the queen could not by her letter dispose of lands granted to the crown by treaty; but if she entered into any regular agreement with the court of France for that purpose, she was, by the law of nations, engaged to do every thing in her power to enable the French to have the benefit of it; which might be done by her confirming titles to such of her subjects as should pay the French a confederation in money, or otherwise, for their lands or houses[28]. Many such lands purchased by _Governor Moody_, having been used for fortifications, the board recommended compensation to be made him by the crown.

But when this question was so answered, what became of the right to ships’ rooms, as established by stat. 10 and 11 Will. 3. which statute was held to apply to the French parts now ceded, as well as to the other? _Placentia_ being the best part for fishing, the English complained they were deprived of the benefit they had promised themselves, by this new acquisition, as they could not resort thither, without paying high rents for a plantation to cure their fish. In truth, many French still continued there, and they gave encouragement also to _Biscayans_, and to the people of _Guipuscoa_, who, we have seen, were starting a pretension to fish at Newfoundland, of right. All these together constituted a source of great discontent, and so continued for several years[29].

[Sidenote: A Salmon Fishery granted.]

Another question, as to the right of property at Newfoundland, arose upon a _salmon fishery_, which had been carried on and improved by _Mr. Skeffington_, between _Cape Bonavista_ and _Cape John_, in a part never frequented by any fishing ships; he had cleared the country up the rivers for forty miles, and had built houses and stages. This person applied for an exclusive grant of this fishery for a term of years;—the matter being referred to _Mr. West_, he reported, that such a grant would not be inconsistent with the stat. 10 and 11 Will. 3[30]. The board accordingly recommended to his majesty, that a term of 21 years, in a sole fishery for salmon, in _Fresh-water Bay_, _Ragged Harbour_, _Gander Bay_, and _Dog Creek_, might very well be granted by his majesty, with liberty to cut wood and timber in the parts adjacent, provided it were at six miles distant from the shore[31].

In the close of the year 1728, we find the board of trade once more took up the subject of this trade and fishery, in consequence of the representations made by _Lord Vere Beauclerck_, the commodore on that station. In order to bring the subject under full discussion, they caused letters to be written to the chief magistrates of the different towns in the west, requesting the merchants to send their thoughts, whether any thing, and what, might be done for the further encouragement of the fishery.

[Sidenote: Opinion on Sec. 7, of Stat. 10 and 11 Will 3.]

With a view of understanding the situation and tenure by which persons held their lands in Newfoundland, the board referred, at this time, a question to _Mr. Fane_ on the seventh clause of stat. 10 and 11 Will 3. “Whether the possessors had an inheritance therein, or only an estate for life?” and he was of opinion, that by the words of this clause, an estate for life only passed to the possessors, and consequently a right of alienation only for that interest, for the following reasons:—1st. From the general rule of law, that the king’s right and interest can never be bound by general words—2dly. From the inconvenience that would ensue, if by these general words an estate of inheritance should be construed to be given; for these houses, &c. might fall into hands improper for carrying on the fishery, or be bought by such as are in the interest of our enemies; or such new erections, houses, &c. might be purchased by one person, or two, and so an engrossing established, against the design and intention of the act—3dly. From the words of the clause, which seem to confine the possession to the builder; for the act says, _to_ HIS _or_ THEIR _use_; which implies, as he apprehended, that this is only a personal privilege; and a privilege it was sufficient, to have an estate for life in a house, &c. probably slightly built; and which, in all likelihood, would only last for the life of the builder—4thly. This act was made, he apprehended, in disfavour of the Newfoundland-men; and it could not be supposed such a favourable provision, in this instance, would be made for them, when they were discountenanced in every other clause of the act; especially too against the right and interest of the crown, which, in all doubtful cases, must be preferred[32].

[Sidenote: Representation 1728.]

The letter to the mayors of the western towns produced only two answers; one of which consisted of a complaint against _Colonel Gledhill_, the lieutenant governor of _Placentia_, for encroaching upon the fishing rooms, engaging in the fishery, and using his power in an illegal and arbitrary manner; the other complained of the illicit trade of the _New England men_. Not the least advice was given as to any mode of correcting irregularities, nor was any thing said as to the want of order, and good government. The board were, therefore, left to take such course as they in their wisdom should think proper. They accordingly proceeded on such evidence as they had, and drew up a representation to his majesty, dated the 20th of December 1728. In which they declare, “That the want of sufficient power in the commodore for enforcing the act of parliament, and the general contempt, into which the authority vested in the fishing admirals had fallen, had reduced the fishery to a very bad condition; and, unless proper remedies were applied, in all probability we should entirely be deprived of the advantages derived by the nation from this trade.”

They then go over the abuses and irregularities so often complained of; the increase of bye boat-keepers, the settling of persons in the island, the enticing away of seamen, and fishermen by the _New Englanders_, who also carried on an illicit trade; the disorders of the garrison at _Placentia_; the clashing interests of the adventurers and the planters; and the inefficacy of Stat. 10 & 11 Will. 3. They remind his majesty of their representations of the 2d of March 1715-16, and especially of that of the 16th of December 1718, and the _heads of a bill_ annexed to the latter. They submit that so much of that, as may be thought proper, may be proposed to parliament immediately; they judging that an _intire remedy_ for the evils complained of, could not be effected, without the assistance of the legislature.

[Sidenote: Recommends civil government.]

However, they said, there were some irregularities, which could be corrected by the king’s own authority, without the interposition of parliament; those were, the irregularities of the garrison, and the disorders committed in the winter season. With respect to the former, they recommend, that considering the lieutenant governor of _Placentia_ thought himself accountable to no one but the king, a nearer controul and check over his conduct would keep him within bounds; and therefore, that the commodore on the station should be commander in chief both by sea and land, as had formerly been the practice, which would at once put an end to the competition, and jealousy, which had so long subsisted between the land and sea forces. As to the second, they recommend, that the commodore might have power to appoint judges, and justices of the peace, to decide disputes between the inhabitants, and distribute justice amongst them during the winter season. This they thought would alleviate the misery of those unhappy people, which was great enough without additional evils from the anarchy in which they lived. They say, that heretofore much encouragement had not been given the settlers, to continue in the island, and therefore regular governors, as in other colonies, had very seldom been appointed for them; and it was their opinion, that these poor people, should rather be encouraged to settle in _Nova Scotia_. They were about _three thousand_ in number, with their wives and children, and might be of service there, where inhabitants were wanted.

They took into consideration the claim of property made to stages, &c. in prejudice of the fishing ships, upon which _Mr. Fane’s_ opinion had been taken; and they thought many such titles, if enquired into, would be found to be defective; they therefore proposed, that some person, skilled in the laws, might attend the next commodore, and assist him to enquire into them, in behalf of the crown. The same person might likewise be useful in forming regulations for the better government of the inhabitants, during the winter season, so long as they continue there. They also recommended, that the bishop of London, as ordinary of the plantations, should send a clergyman, whose salary might be put on the establishment of the garrison at _Placentia_[33].

This representation of the lords of trade was taken into consideration at the committee of council. The committee referred to the board to consider whether, as the commission, proposed to be given to the _Lord Vere Beauclerck_, would vacate his seat in parliament, the service intended might not be equally well carried on by _instructions_ to be given to the _Lord Vere Beauclerck_, for putting in execution all the powers entrusted to the commodore, by stat. 10 & 11 Will. 3. and by a _commission_, to be given by his majesty to a person skilled in the laws, who should accompany the _Lord Vere Beauclerck_, for appointing justices of the peace, and establishing some form of civil government among the people who had settled themselves in that island, that they might not be left in a state of anarchy, upon the departure of his majesty’s ships of war. If their lordships saw no objection thereto, they were desired to consider of a proper form of commission and instructions.

They were also desired to consider, whether it might be adviseable to separate the government of _Placentia_ from that of _Nova Scotia_.

The committee made another order the 19 of April 1729, in which they recommended to his majesty all the points proposed by the lords commissioners of trade.

In obedience to the first order of the committee of council, the lords report, that they thought a commission to some person to attend the _Lord Vere Beauclerck_, with proper instructions, might serve instead of a commission to his lordship. They prepared a commission and instructions accordingly, whereby such person was required to take the advice of _Lord Vere Beauclerck_, and to execute such matters as his lordship should propose to him in writing, for his majesty’s service. Among the instructions they inserted some relative to the acts of trade and navigation; which, however, their lordships thought would prove of small effect till his majesty should be pleased to erect a court of admiralty, or some other proper jurisdiction in Newfoundland, to take cognizance of offences against those acts.

They drew up instructions for _Lord Vere Beauclerck_, and made the old heads of enquiry a part of them.

They remark, that they had added an instruction, which required his lordship to send home all offenders, in robbery, murder, and felony, and likewise the witnesses, which had not always been done. This was to be practised till such time as some other method should be established for trying offenders in the country, which may, say their lordships, perhaps be thought necessary, so soon as the island shall have been put under better regulations, and some person skilled in the laws may hereafter be annually sent thither for this purpose, with his majesty’s commission of oyer and terminer.

They were of opinion that the government of _Placentia_ should be separated from that of _Nova Scotia_.

[Sidenote: A civil governor is appointed.]

This design for establishing some sort of government in Newfoundland ended in the appointment, not of _a person skilled in the law_, but of _Captain Henry Osborn_, commander of his majesty’s ship _the Squirrel_.

The commission given to Captain Osborn begins by revoking so much of the commission to the governor of _Nova Scotia_, as related to the government of _Placentia_, or any other forts in Newfoundland; and then goes on to appoint _Henry Osborn governor and commander in chief in and over our said island of Newfoundland, our fort and garrison at Placentia, and all other forts and garrisons erected and to be erected in that island_. It then gives him authority to administer the oaths to government, and to appoint justices of the peace, with other necessary officers and ministers for the better administration of justice, and keeping the peace and quiet of the island. But neither he nor the justices were to do any thing contrary to the Stat. 10 & 11 Will. 3, nor obstruct the powers thereby given to the admirals of harbours, or captains of the ships of war. The justices were required to be aiding and assisting to the commodore, or commanders of the ships of war, and the fishing admirals, in putting in execution the said statute. The governor was to erect a court-house and prison; all officers, civil and military were to be aiding and assisting to him in executing this commission. In case of his death, the government was to devolve on the first lieutenant of _the Oxford_, the ship commanded by _Lord Vere Beauclerck_.

Such were the terms of the first commission of civil governor, granted for Newfoundland. The instructions that accompanied this commission, have nothing in them very particular. They are fourteen in number; and the last required him to execute all such matters as _Lord Vere Beauclerck_ should propose to him, for his majesty’s service. The instructions to his lordship contained all the _heads of enquiry_ relating to the trade and finery, and the abuses and irregularities so long complained of, and they were fifty in number.

We are told, that on the 24th of May 1729, a box was sent to the _Lord Vere Beauclerck_, in which were eleven setts of _Shaw’s Practical Justice of the Peace_, each impressed on the covers, in gold letters, with one of these titles, _Placentia_, _St. John’s_, _Carboneer_, _Bay of Bulls_, _St. Mary’s_, _Trepassey_, _Ferryland_, _Bay de Verd_, _Trinity Bay_, _Bonavista_, _Old Parlekin_ IN NEWFOUNDLAND; together with thirteen printed copies of Stat. 10 & 11 Will. 3, and a bundle containing the acts relating to the trade and navigation of this kingdom. And thus provided, his lordship and the governor set sail for Newfoundland[34], in the summer of the year 1729.

Having brought down this history to the period, when an attempt was made to afford some sort of civil government to Newfoundland, I shall make a short pause in the narrative; and call the reader’s attention to some few documents, that will more strongly impress upon his mind the actual state of things in that island, and the pressing necessity there was for the interposition of the parliament, or of the executive government, to correct abuses, and establish some sort of regular authority. I have before given a particular account of the enormities subsisting within three years after passing Stat. 10 & 11 Will. 3, from a letter written by a person then confided in by the government at home; I mean Mr. Larkin[35]. It is very plainly to be collected, from the representation made by that gentleman, that this statute was ineffective and inadequate from the very beginning. What is inapplicable in its origin, is not likely to become more useful in a course of time. It will be found, in fact, that in all the time that elapsed between passing that act, and the year 1729, disorder and anarchy increased more and more; and nothing remained but to try another system.

The documents I shall produce will be extracts from the correspondence and communications made by the commodores and commanders on the Newfoundland station, to the board of trade. In these it will be seen, what was the nature of the disorders and irregularities committed in the island; and it will appear how very inadequate was the authority and jurisprudence conferred by the statute of King William, and how ill the authority and jurisdiction so given, was administered.

[Sidenote: Disorders in Newfoundland, and conduct of the fishing admirals during this period.]

One of the correspondents writes in this manner.—“The admirals which are appointed by the Newfoundland act, to decide differences, in relation to fishing-rooms, &c. have entirely neglected it in all its parts. Indeed, at their first arrival, they claim their prerogative, as by the said act, as far as it suits with their own interest and no further; except a particular friend of theirs should arrive with a fishing ship; in such case should the ships fishing rooms of that harbour be taken up before he arrives, they often remove some planter or other for him, pretending that the planter’s title is not good to the room he possesses, when the commanders of men of war, some years before, adjudged it to be the said planter’s right.”

“These things are often done, and several of the inhabitants’ fishing voyages ruined thereby. It is common, that what is done one year, in relation to fishing rooms, is contradicted the next; so that the fishing-rooms, are not settled to this very day. Many times these _admirals_ never were in the land before, nor knew any thing of the matter; in which case some old west country master commonly takes care that the said admiral do nothing but what he pleases.—Those are the patrons that are commonly called _kings_ in that country, who sacrifice other people’s interest frequently to serve their own. The admirals are some of the first men to cut down the roofs of their stages, cook-rooms, and flakes, which paves the way for the inhabitants to follow their example, who in the winter season generally carry away all the remainder. It is certain the admirals are seldom or never at leisure to hear any complaints whatsoever, except one of their favourites is the plaintiff[36].”

“The masters of ships in Newfoundland generally endeavour to force their goods upon the inhabitants, especially the poorer sort, who generally pay dearest. Say they, if he makes a good voyage, we shall be all paid; and if he does not (says every one to himself) I will be quick enough to get my payment. By this means they have a jealous eye, the one over the other. If the fishing does not prove so good as was expected, some of these matters will fall upon them, before the fishing season is half over, take away their fish before half made; another comes and takes away his train; and many times there comes a third, who has more men than they, and takes it away from the former; he that has most men is sure to have the greatest share. This is a common practice in Newfoundland. They never acquaint the admirals with this proceeding before they do it; neither do the admirals trouble themselves with it afterwards. But the consequence lies here; the planters’ men will catch no more fish, because they have no hopes of getting any wages; the planter is ruined, and all the rest of the creditors unpaid; who, if they had given him the liberty to make his fishing-voyage, might have paid them all. The merchants of England have suffered exceedingly by this unparalleled thing, there being no precedent for it in the whole Christian world. I am fully satisfied that by this thing, and the multiplicity of liquors imported into Newfoundland yearly, the trade thereof has suffered more, than by the French plundering it so often in the late wars.”

“It is most certain that the admirals in Newfoundland have _never_ taken any care about the good of that trade; and their reasons generally given for it are, that they come to Newfoundland to mind their owner’s business; and as nothing was allowed them for defraying the charges of keeping courts, they could not do it[37].”

Another writes thus.—“But what I would more particularly represent to their lordships, is the clandestine and illegal commerce carried on between the _New England men_, and several of the British masters, especially the fishing admirals; who after they have, according to the act, qualified themselves in England for fishing ships, depart for _France_, _Spain_, or _Portugal_, where they freight with wines and brandies; which early in the year they carry directly to Newfoundland; and either dispose of to the planters, or barter with the New England-men for the produce of the plantations. By these means Newfoundland is not only supplied with these foreign European commodities, but it is become a mart, from whence other American plantations are (in fraud of his majesty’s duties) in a good measure furnished.”

“As the admirals are chiefly concerned in this unfair trade, so their tyranny and oppression in the harbours, where there are none of his majesty’s ships, is not to be reckoned amongst the least causes of the decay of the fishery; those who labor in it, having learnt by experience, that the rule of their decision is their private interest, and that fishermen are not to expect any justice from them. This contributes to a scarcity of men, which occasions wages to be so extravagant, that the fish which they catch is often not sufficient to pay the servants. And the inhabitants are thereby so much discouraged, that there have not been half the number of boats employed by them as formerly.”