p. 1034 C
MEMORIAL OF MESSRS. BAYNE AND BRYMER,
PRAYING RELIEF FOR LOSSES SUSTAINED IN CONSEQUENCE OF
B.T. NEWFOUNDLD. VOL. 20.
To the Right Honourable the Lords Commissioners for Trade and Plantations.
The Memorial of Daniel Bayne and William Brymer late of the City and Province of Quebec Merchants. Humbly Sheweth—
That whilst the Province of Quebec was in the Possession of his most Christian Majesty the Coast of Labradore was part of the Dependancies of the Government of Canada and that a very Valuable Seal Fishery was carried on in that part thereof which is situate within the Streights of Belleisle.
That in Order to carry on the said Fishery it was necessary that certain Buildings should be Erected on the Sea Shore and Nets procured of Dimensions adapted to the several Passes or Guts thro' which the Seals passed and repassed and Boilers and other Implements and Utensills should be provided at a great Expence.
That to Encourage the Adventurers in the said Fishery to make the necessary Disbursmts for Exercising the same and to assure them of the Possession & Occupation of the several Posts and Passes for which their Nets and other Gear were fitted and adapted, it was usual for the said Adventurers to procure Grants from the Governor of Canada of the sevl Posts and Settlements respively occupied by them which said Grants were afterwards ratified and Confirmed by his most Christian Majesty.
That after the Conquest of Canada the Honble James Murray Esqr his Majesty's Governor thereof being sensible of the Great Advantage that would accrue to the said Province from the Exercise and Extension of the said Seal ffishery gave every Encouragemt in his Power to his Majesties Subjects resident in Canada to become Adventurers therein and being convinced of the necessity that the Adventurers should respectively possess certain Posts and Settlements on the said Coast—the said Governor made out Grants thereof in such manner as had been usually done by the Governor of Canada before the Conquest thereof by his Majestys Arms.
That Your Memorialists were by these means induced to Embark in the said Seal ffishery and for that purpose did procure from Governor Murray a Grant bearing date the 6th day of April 1763 of a certain Tract of Land or Post
on the said Coast of Labradore therein described by the Name of Cape Charles for the space of four years from the Date of the Grant or until his Majesty's further pleasure should be known therein.
That the said Grant was made when the Coast of Labradore was part of the Dependancies of the Government of Canada and antecedent to his Majesties most Gracious Proclamation of 7th Octr 1763 whereby the Coast of Labradore was put under the Care and Inspection of his Majesty's Governors of Newfoundland to the end that the open and ffree Fishery of his Majestys Subjects might be extended and carried on upon the said Coast and the adjacent Islands.
That the said Governor Murray did Transmit to this Honble board a Copy of the said Grant and that it hath not been Signified to Your Memorialists that his Majesty hath disapproved of the same.
That Your Memorialists relying on the Validity of the said Grant did at a very considerable Expence cause Buildings to be Erected at the said Post at Cape Charles and ffurnish and supply the same with Men Provisions Implements and Utensils necessary for Exercising the said Fishery and did Exercise the same to their very great Advantage under the Superintendency & Management of William Lead.
That Your Memorialists remained in the quiet Possession and Occupation of the said Post until the 11th of August 1765 when Lord Rutherford at that time Lieutenant of his Majesty's Ship the Niger one of the Squadron then on the Newfoundland Station under the Command of Admiral Pallisser did wilfully and without giving any Notice to your Memorialists Agent burn and destroy about 90 Hogsheads of the value of 60lb or thereabouts the Property of your Memorialists then being at the said Post & did Seize and carry away some of Your Memorialists Effects.—
That on the 17th of the said month of Augst Lieutenant Waters of his Majesty's Ship the Guernsey then under the Command of the said Admiral Pallisser together with 16 Armed Mariners came to the said Post at Cape Charles and Seized the said William Lead and ffrancis Carpentier who was Servant to Your Memorialists and Assistant to the said Wm Lead and insisted that they the sd Lead and Carpentier should immediately abandon the said Post and go with him to the Admiral then on board the Guernsey in Chateau bay at the distance of 7 Leagues from the said Post of Cape Charles in pursuance of Orders he declared to have received from Admiral Pallisser for that purpose.
That the said Lead remonstrated with the said Lieutenant Waters thereupon and denied that the said Admiral could by any Lawful Authority oblige him to quit the said Post at Cape Charles and abandon the Service & business of Your Memorialists but the said Lieutenant Waters persisting therein the said Lead and Carpentier being unable to resist his force were by threats and Violence and illegal Restraint and Imprisonment of their Persons obliged to abandon the Post and the Effects of Your Memorialists and consent to go on board the Admirals Ship then lying in Chateau bay.—
That upon Lead's arrival on board the Guernsey he produced his Papers to Admiral Pallisser and underwent an Examination by him whereby it
appearing that some Canadians (at that time British Subjects) were Employed by Lead as Servants to Your Memorialists in carrying on the said Fishery the said Admiral declared that he should no longer occupy the said Post and Exercise the said Fishery.
That thereupon the said Lead acquainted the said Admiral that no Notice had been given him of any Regulations made by the said Admiral, that Your Memorialists had Effects lying at the sd Post of Considerable Value he therefore prayed that he might be set at Liberty and Permitted to return to Cape Charles and take the most Effectual means in his power for Securing the same which request being granted the said Lead went to Cape Charles took an Inventory of Your Memorialists effects there lying to the Amount of 750lb, and returned to Chateau bay on 28th of the said month of August.
That he was thereupon again Examined by the said Admiral Pallisser and Ordered immediately to return to Cape Charles and remove from thence all the Effects belonging to Your Memorialists which the said Lead having no Authority from Your Memorialists refused to do whereupon the said Admiral P. declared that he would have his Orders Obeyed, that he would Secure the Person of the said Lead until they were removed and furthermore that if the said Effects were not immediately removed they should be destroyed.
That the said Lead apprehending that the proceedings of the said Admiral were unwarrantable and that it was necessary that he should be able to justify his Conduct to Your Memorialists, his Employers insisted that the said Admiral Palliser should reduce his Orders into Writing whereupon the said Admiral delivered him a certain paper Writing in the Words and figures following:—
“By his Excellency Hugh Pallisser Govr and Commander in Chief in and over the Island of Newfoundland, the Coast of Labradore and all the Territories dependant thereupon—
William Lead and Carpentier in the Employ of Messrs Bayne and Brymer residing at Quebec are hereby Ordered immediately to quit the Coast of Labradore and take away with them all their Effects, or they may sell them to any British ffishing Ship in this Harbour.
Given under my Hand in Pitts Harbour within Chateau bay on the Coast of Labradore this 28th August 1765.
By Command of his Excellency
That the said Lead acquainted the said Admiral that it was impossible for him to Comply with the said Order as he was unprovided with any Vessell wherewith to Transport the said Effects to Quebec the place of Your Memorialists residence and which was distant about 300 Leagues from Cape Charles.
That the said Admiral Pallisser persisted in his Resolution of Obliging the said Lead to abandon his Employment and remove the said Effects from
Cape Charles ordered him to apply in his the said Admirals Name to Captain Nicholas Darby who then Commanded a ffishing Vessell lying in Chateau bay to take the said Effects on board his Ship which was bound for Newfoundland and from thence to some part of Europe.
That Your Memorialists have been Informed that the said Captain Darby did take on board his Ship some Effects belonging to Your Memorialists but they are entirely Ignorant in what manner he has disposed of the same, nor have they ever received any remittance on Account of the Produce thereof.
That Your Memorialists being unacquainted with the above recited Transactions on the Coast of Labradore were fitting out at Quebec a certain Sloop called the Esquimeaux with a supply of Provisions Utensills, and other necessaries for carrying on the Seal fishery at the said Post at Cape Charles which said Sloop being Equipped at a very great Expence proceeded on her Voyage as far as Mingan 120 Leagues down the River Saint Lawrence at which Place the said Wm Lead arrived in his return to Quebec and acquainted the Master of the said Ship of the Treatment he had received from the Admiral and furthermore that the said Admiral had published a certain Proclamation dated 28th August 1765 whereby he prohibited all persons residing in the Colonies from going to the said Coast of Labradore under Pain of Corporal Punishment and Confiscation of their Effects.
That the Master of the said Sloop finding that the further Prosecution of his Voyage could not in any wise be for the Advantage of your Memorialists and being Terrified by the above mentioned Procl did immediately return to Quebec where your Memorialists on having no other Occasion for the said Vessell and Cargo disposed of the same by Public Sale but as the same were particularly adapted for the Seal Fishery on the Coast of Labradore, and as the Colonists were prevented from Exercising the said Fishery, the said Vessell and Cargo necessarily sold to a considerable Loss.
That upon Admiral Pallisser's arrival in England Your Memorialists did apply to him for Satisfaction for the Injury and Damage which they had received by the means aforesaid but the said Admiral Pallisser instead of complying with so reasonable a request pretended that he could well Justify the several Acts herein before recited done by him or by his Orders by Virtue of his Majestys Commission under the Great Seal appointing him Govr and Commander in Chief in and Over his Majestys Island of Newfoundland & the Coast of Labradore and certain Instructions given and delivered to him as Govr & Commander in Chief in and over the said Island and Coast.
That Your Memorialists did thereupon by a Memorial setting forth their Case addressed to his Majesty in Council humbly pray that his Majesty would be graciously pleased to grant them Relief.
That the right Honble the Lords of a Committee of his Majestys Council to whom the said Memorial was referred did not think proper to enter into the Particulars of Your Memorialists Case but were pleased to Declare that if your Memorialists had been Aggrieved they should seek for redress in his Majesty's Courts of Law.
That Your Memorialists being advised that Notwithstanding the Justifi-
cation set up by Govr P. he was Answerable at Law for the Damage they had sustained by his Means did in Michas Term in 1766 Commence an Action against the said Govr Pallisser in his Majesty's Court of Kings Bench.
That the said Cause being at Issue and coming on to be tryed at Guildhall on the 15th day of this Instant December by a Special Jury of Merchants of the City of London before the Lord Chief Justice Mansfield, his Lordship having previously inspected the Pleadings in the said cause wherein the Justification set up by the Govr under his Majestys Commission and Instructions were specially Pleaded & having perused a State of the ffacts delivered in by both Parties and being made acquainted with the Application to his Majesty in Council was pleased to Order that the Jury should not be called and to Declare that many very weighty and Important questions must necessarily be agitated in the Course of the Trial of the said Cause which for Reasons drawn from particular Circumstances he was of Opinion were by no means proper to be Discussed before a Jury therefore his Lordship did Recommend that the said Cause should stand over, and that immediate Application should be made by both Parties, Plaintiffs and Defendants to this Honble board for Relief and that they should desire to be respectively heard by their Council.*
And Your Memorialists further Shew unto Your Lordships that they are prepared to prove the several Allegations set forth in this their Memorial and a Particular of the Loss and Damage which they have sustained by the Means herein before recited.
Your Memorialists therefore most humbly Pray that your Lordships will be Pleased to take the Premes into Your Consideration and grant them such Relief as their Case shall require.
Memorial of Bayne and Brymer, stating the Losses sustained by them in consequence of Govr Pallisser's regulations concerning the fishery on the Labrador
Coast, & praying relief.
Read Janry 24, 1769.