mending that a bill should be proposed to parliament for giving effect to the suggestions there made.

        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. This representation, and the heads of the bill, have been lately laid before the house of commons, and are now printed by their order.

        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 Guipiscoans 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. 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.

        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 consideration in money, or otherwise, for their lands or houses. 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 pretention to fish at Newfoundland, of right. All these together constituted a source of great discontent, and so continued for several years.

        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. The board accordingly recommended to his majesty, that a term of 21 years, in a sole fishery for salmon, in Freshwater 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.

        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 Beauclerk, 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.

        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 : —lst. 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.

        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 anything 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. Representation 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.

        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 countroul 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 clergy-man, whose salary might be put on the establishment of the garrison at Placentia.

        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 seperate 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.

        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.

[1927lab]