p. 1682
meet the difficulty caused by the dispersion of the inhabitants by the adoption
of the measure suggested by the planters themselves a few years before.
If the inhabitants were confined to Trepassey, Ferryland, St. John's, Carbonear,
Trinity Harbour and Bonavista, they could be easily governed, and would
suffer no appreciable inconvenience in carrying on their fishing. All the
planters, he declared, wanted a governor, and would contribute to his
maintenance.
Norris, on the contrary, was persuaded that the fishery could not be
better than under its old constitution.¹ He favoured the fortification of the
harbour of St. John's but would have the batteries manned by the inhabitants.
The military authority over the inhabitants should be strictly confined to the
necessities of war, and the power of summoning the inhabitants to arms should
be entrusted to the admiral of the fleet, because the masters of the merchant
ships had probably seen more service than any of the planters, and the planters
were in a sense servants to the merchantmen.
In sending his answers to the series of queries addressed by the Board
to the Admiralty, he frankly avows himself a merchant-adventurers' man.
He “thinks that if the merchant-adventurers have the preferable encouragement
before the planters and boat-keepers it would make the trade most
beneficial for England.” He would revive the rules of the Western charter,
to prevent any inheritance to the stages and room. As for Newfoundland,
he avers that “the Colony cannot subsist itself, for it produces nothing.”
If in the search for further information, the Board turned back to earlier though recent reports, they would have learned from Captain Story of the “Antelope” who made the official report for 1681, of the range of Irish trade
in Newfoundland, the importation of women, who were sold as servants,
and whose extravagance after they married, threatened the ruin of the settlement. There was a fur trade in the north worth perhaps £500 a year.
The report of 1682 mentions only the iniquities of the New Englanders,
who “spirit away the inhabitants.” Captain Talbot, who made the official
report for 1683, dwells upon the hemming-in of the English fishermen by the
French to the north and the south, and the ill-consequences of the English
being confined to the over-fished tracts between Cape Bonavista and Cape Race.
Captain Wheler, with the series of questions prepared by the Board
before him, gives some real information as to conditions in the Island in 1684.
He says: “The Colony cannot support itself. The earth, or rather the rock,
produces no more than enough to keep a few cattle in summer, which must
be slaughtered in the winter for want of forage”; and “there is no sort of
arable or pasture land in the Colony, nor any fur trade except towards Cape
Bonavista.” “There is hardly a planter in the country who is not a great
deal worse than nothing, but they are bound to go on fishing or the
merchants will sell them no provisions for the winter.”²
During these years, Newfoundland was gaining an unenviable notoriety
as a centre for smuggling operations. The Commissioners of Customs declared
1 C. S. P. Am. &. W. I. Colonial 1697-1698, p. 1801.
2 C. S. P. Am. & W. I. Colonial, 1681-1685, p. 1806.
p. 1683
that “the Island is become a kind of magazine of contraband goods,” and
he notified the Governor of New England in 1687 that all people should be
given to understand that Newfoundland is not a plantation like other of
the King's Plantations, and that all such goods would be seized.¹ In the
year following, the general orders issued for the prevention of smuggling and
illicit trade, contained the words “especially with Newfoundland.”
This, then, is the body of facts which the Board of Trade had before
them, when they set about the drafting of the act of 1699. The impression
made on the minds of the Board as the result of their studies is thus succinctly
conveyed to the Ordnance by the Secretary of the Board: “there are no planters
nor any manner of Government in that Island as there are in other Plantations,
the trade thither being only by fishing-ships, and a few poor fishermen on
the shore who cannot contribute anything towards the things now proposed
for defence of the place.”²
As the act of 1699, known as “An act to encourage the Trade to Newfoundland”³
was the rule of law by which Newfoundland was governed
when the coast of Labrador was placed by the Proclamation of October 1763,
“under the care and inspection of our Governor of Newfoundland,” it seemed
desirable to ascertain the circumstances amid which that act had its birth.
The act was, in large part, a re-enactment in statutory form of the regulations
laid down in 1634, with the later amendments. It prohibited the encumbering
of the harbours with ballast; the destruction of stages; the obliteration of
marks of boats or train-vats; the rinding of trees; interference with nets;
and desecration of the Lord's Day. The regulations respecting harbour
admirals and the allotment of shore space among the fishermen were repeated.
Permissively, the act granted liberty to all the King's subjects full
liberty of trade and fishing in the seas, rivers, lakes, creeks and harbours in
and about Newfoundland and the islands adjacent thereto, with all the
necessaries and conveniences required for the curing and drying of fish,
including the privilege of going on shore on any part of Newfoundland or
the adjacent islands. Stages owned prior to 1685, or which had been built
since that year, were to be secured to those in possession of them. All other
stages were to be thrown open to the public use, and in the selection of these
stages or fishing rooms, precedence of choice was to be given to the masters
of fishing ships arriving from England.
Controversies arising between the inhabitants and the masters of fishing
ships were to be determined by the fishing admirals, from whose decision
an appeal lay to the commanders of any of the ships of war. Persons charged
with robbery, murder or other capital crimes were triable in any shire or
county in England.
No improvement in the conditions of the Island was apparent as a result
of the enactment of this act. Disorder still reigned supreme. The administration
of justice by the harbour admirals, supplemented though it was by
1 C. S. P. Am. & W. I. Colonial, 1685-1688, p. 1809.
2 C. S. P. Am. & W. I. Colonial, 1697-1698, p. 1810.
3 10 & 11 William III, cap. 25, Vol. I, p. 250.
p. 1684
the right of appeal to commander of the fleet, continued to be farcical, when
not tragic. The House of Commons intervened, and the Board of Trade
became more urgent for ameliorative measures. Finally in consequence of
disclosures of gross scandals in the conduct of the commandant of the fort
at St. Johns, a decision was taken which settled the government of Newfoundland for upwards of a century.
On May 20, 1708, an Order in Council was made directing that a commission
be prepared annually by the Board of Trade for the commodore of
the Newfoundland convoys requiring him to exercise supreme command on
land during his stay in those parts, with such further instructions for putting
in execution the act of Parliament, as were set forth in the representation of
the board.¹
Prowse, an ardent partisan of the settler against the West Countryman,
has a word of commendation for the commodore. “Much abuse has been
bestowed on our naval rulers; never was censure less deserved. No doubt
they were often severe, sometimes narrow in their views. We must remember
they were always hampered by instructions to repress settlement. On the
whole I think they filled their very difficult positions admirably.”²
If we may judge however from the records after the change in the
government of the Island, the amelioration in general conditions was but
slight. At best, it was a shift from the superlative to the comparative degree
of badness. The reports of the commanders were a continuous tale of tyranny
and oppression on the part of the ship masters, and particularly of the harbour
admirals, whose duty it was to preserve order. The discouragement which
prevailed among the inhabitants was in the opinion of one commodore “not
to be reckoned amongst the least causes of the decay of the fishery.” The
illegal trading of the New Englanders was not only connived at, but participated in by the admirals.
The chief evil to which all drew attention was that due to the withdrawal
of even the appearance of authority with the departure of the fleet in the
autumn, and the ensuing lawlessness which held sway during the several
months of winter. “The sober and industrious are every day liable to be
insulted and robbed by the idle and profligate.” “At that time theft,
murder, rapes, or disorders of any kind whatsoever, may be committed,
and most of them are committed without control.”³
The remedy for this anarchical state of things proposed by the officers
of the fleet was the obvious one, viz:—a civil government. The merchant
adventurers, on their side, had their own grievances—the smuggling, and
abducting of seamen by New Englanders, the incroachments of inhabitants
on the fishing rooms, the interloping of aliens in the fisheries, the usurpation
of legal authority by the commodores—but there is no suggestion that civil
government was thought desirable.
Nor did they desire it. They wished the Island restored to its original
1 History of the Government of Newfoundland, John Reeves, 1793, p. 1884.
2 History of Newfoundland, 1896, p. 254.
3 Reeves op. cit. pp. 81, 84.
p. 1685
state of uninhabitancy. The interests of the Kingdom, which they identified
with their own interests, required that England should be the domicile of
all who fished in Newfoundland waters; and that the coasts of the Island
should be used only for the necessary land operations of those engaged in the
fishery.
This was precisely the view of the Board of Trade at this time. In it
they were fortified by George Larkin, who was sent out in 1701 by the Board
on an inspecting tour throughout the colonies. Larkin overflowed with
indignation against the fishing admirals and with sympathy for the luckless
inhabitants; but he describes the latter as poor, indigent and profuse, and
states it was the opinion of all with whom he had conversed in Newfoundland,
that it would have been much better if all plantations had been absolutely
discouraged, for the Island had become a sanctuary or place of refuge for
people that break in England.¹
The Board reached its conclusions from another standpoint. A historical
survey of the fisheries from the earliest times convinced it that “the fishery
at Newfoundland, from its first establishment, has either flourished or
languished according as the inhabitants have been discouraged or encouraged”;
and that the most effective means of restoring prosperity would be “to remove
the inhabitants or planters to Nova Scotia, or to some other of Your Majesty's
plantations in America.”²
They were not prepared, however, to recommend so drastic a measure,
and asked leave to submit other proposals. No further action was taken
until 1728.
In that year, the Board was moved by the representations of Lord Vere
Beauclerck to take up the question of Newfoundland again. As a preliminary
to the consideration, a question was submitted to a legal adviser, Mr. Fane,
on the 7th clause of the Statute 10 & 11 William III. They desired to know
whether the possessors of property under the terms of that clause had an
inheritance therein or only an estate for life. Mr. Fane was of opinion for
the reasons, which he gives, that an estate for life only passed to the possessors
and consequently a right of alienation only of that interest.³
The Board as usual consulted the Western Merchants, but this time
received nothing of a practical nature from them. They thereupon proceeded
with their report to the King. After traversing the familiar ground of abuses
in the Island, and inviting attention to their earlier recommendations, they
express the hope that the subject might be submitted to Parliament. Pending
action by that body, there were certain matters lying within the competence
of the King, which they would give their advice upon. The first of these
was the refusal of the governor of Placentia, which had been annexed to
the Crown by the treaty of Utrecht, to recognize any authority but that of
the King. By a curious arrangement, when the French portion of the Island
was taken over by Great Britain, it was attached not to Newfoundland,
1 C. S. P. Am. & W. I. Colonial, 1701, p. 1811.
2 Papers relating to Newfoundland, 1718-1793. Report of 1718, p. 1815.
3 Reeves, op. cit. p. 1889.
p. 1686
but to Nova Scotia. The Board proposed that the recently acquired territory
should be detached from Nova Scotia and placed under the jurisdiction of
the governor of Newfoundland. As for the establishment of law in the Island,
the Board were of opinion that the inhabitants should be encouraged to go to
Nova Scotia, where settlers were wanted; but that their misery, which was
great enough without additional evils from the anarchy in which they lived,
might be alleviated by empowering the commodore to appoint judges, and
justices of the peace to decide disputes between the inhabitants, and distribute
justice amongst them during the winter season.
As the Board anticipated litigation as to the property in stages and other
conveniences necessary for carrying on the fisheries, they proposed that some
person skilled in the laws should accompany the commodore. He might be
of use in framing regulations for the preservation of order during the winter
season, so long as the inhabitants remain there.¹
The Home Government did not follow the recommendations of the Board
on all points. They revoked so much of the commission of the Governor of
Nova Scotia as related to Placentia, and in appointing Captain Osborn of the
Squirrel, gave him a commission as Governor and Commander-in-Chief “in
and over our said island of Newfoundland, our fort and garrison of Placentia,
and all other forts and garrisons erected and to be erected in that Island.”²,³
He was given authority to appoint justices of the peace and other officers
necessary for the administration of justice. But neither he nor the justices
were to do anything contrary to the statute 10 & 11 Wm. III, nor obstruct
the powers thereby given to the admirals of harbours, or captains of the
ships of war. The governor was to erect a court house and prison.
Instead of sending out a gentleman learned in the law, the Government
contented themselves by sending a copy of Shaw's Practical Justice of the
Peace to each of the justices.
Osborn, on his arrival in St. Johns, at once proceeded to give effect to
the terms of his commission. He divided the island into convenient districts,
and appointed, from the best inhabitants of each, the necessary number of
justices of the peace and constables. He also erected prisons in St. Johns
and Ferryland, though the legality of the means employed for raising the
money required for these buildings was more than doubtful.4
But his plans for the establishment and preservation of order encountered
and were in a large measure neutralized by the opposition of the merchant
adventurers, whose aims seem to have been to maintain the free hand they
had long used for the domination of the island. The fishing admirals and
other shipmasters threw every obstacle in the way of the exercise of the
powers of the justices. They had the incontestable advantage that their
authority was derived from a statute (10 & 11 Wm. III), while the powers of
the justices rested on the less secure foundation of the King's commission.
1 Reeves, op. cit. p. 1890.
2 Patent Roll 2 Geo. II, pt. 3, Vol. II, p. 1838.
3 Reeves, p. 1892.
4 Ibid. p. 1894.
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