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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.

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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.

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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.

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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.

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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.

[1927lab]



 

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