The Labrador Boundary

Privy Council Documents

Volume IV


Represntation 1708.

For the sea commanders to command at land.

Such commission issues.

Laws and orders made at Newfoundland.

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No. 771.




        After my return from Newfoundland, in the year 1791, I was curious to look back into what had been done, in former times, on the subject upon which I had myself been just employed. I accordingly looked over the NEWFOUNDLAND ENTRIES, and the NEWFOUNDLAND BUNDLES, among the books which belonged to the late board of trade ; and I then pursued the subject through the REGISTERS of the present committee of council for trade and plantations.

         I was very much struck with the matter and reflections furnished by this research ; and I wished that the useful information, which I had derived from this retrospect, might be seen by those, who had at that time to consider the subject of Newfoundland. Hence arose the present History ; and as the same subject is now before the House of Commons, I have ventured to print it, and throw it among the other materials under examination.

        If this public enquiry had not been instituted, the story here told would have been confined to the circle for which it was originally intended.

        April 1793.                                                                 J. R.


        I intend to give a short history of the Government and Constitution of the island of Newfoundland. This will comprise the struggles and vicissitudes of two contending interests.— The planters and inhabitants on the one hand, who, being settled there, needed the protection of a government and police, with the administration of justice : and the adventurers and merchants on the other ; who, originally carrying on the fishery from this country, and visiting that island only for the season, needed no such protection for themselves, and had various reasons for preventing its being afforded to the others.

        This narrative will divide itself into four periods, or parts. The first will close with the passing of Stat. 10 & 11. Will. 3. c. 25. by which the adventurers

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and merchants were supposed to have obtained a preference, and advantage over the pretensions of the inhabitants, and planters. The second will end with the appointment of a civil governor, and of justices of the peace in 1729 ; by which some stop was put to the disorder and anarchy that had long prevailed in the island, especially during the winter seasons. This may be considered as an advantage gained by the inhabitants and planters. The third closes with Stat. 15, Geo. 3. c. 31. commonly called in the island Sir Hugh Palliser's act, which was intended for giving an advantage to the fishery carried on from the mother country ; but, as it obliges both merchants and planters to pay their servants' wages, it is equally abhorred by both parties ; and both parties have shewn great readiness to join in asserting, that the fishery has gradually decayed ever since the passing of this act. The fourth comes down to the year 1791, when a court of civil jurisdiction was established upon principles which, it was thought, would secure the impartial administration of justice to the merchant and the planter, the rich, and the poor, the master, and the fisherman.

*                      *                     *                     *

        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. 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 anything, yet any offender against such act may be fined at the discretion of the court, when found guilty on an indictment or information.

        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 com-

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manders 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.

        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 Such commission issues 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. 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. 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

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on informatios 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.

In the year 1711, I find, what is called, a record of several Laws and orders made at Newfoundland 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 23rd day of August and 23rd day of October 1711. Then follow fifteen articles of regulation, 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 ; 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. It appears from the observations made by this gentleman, as well as many

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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. Instructions to that effect were accordingly given to the lieutenant-governor of Placentia.

        Among the proposals and suggestions for improving the trade of Newfoundland, some papers from Mr. Campbell, in the year 1714 are deserving of notice.

        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. 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. 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. On this occasion Mr. Taverner suggested his remarks, and gave a sketch of a bill. 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, and recom-



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