The commission given to Captain Osborn begins by revoking so much of the commission to the governor of Nova Scotia, as related to the government of Placentia, or any other forts in Newfoundland ; and then goes on to appoint Henry Osborn governor and commander in chief in and over our said island of Newfoundland, our fort and garrison at Placentia, and all other forts and garrisons erected and to be erected in that island. It then gives him authority to administer the oaths to government, and to appoint justices of the peace, with other necessary officers and ministers for the better administration of justice, and keeping the peace and quiet of the island. But neither he nor the justices were to do anything contrary to the Stat. 10 & 11 Will. 3, nor obstruct the powers thereby given to the admirals of harbours, or captains of the ships of war. The justices were required to be aiding and assisting to the commodore, or commanders of the ships of war, and the fishing admirals, in putting in execution the said statute. The governor was to erect a court-house and prison; all officers, civil and military were to be aiding and assisting to him in executing this commission. In case of his death, the government was to devolve on the first lieutenant of the Oxford, the ship commanded by Lord Vere Beauclerk.
Such were the terms of the first commission of civil governor, granted for Newfoundland. The instructions that accompanied this commission, have nothing in them very particular. They are fourteen in number ; and the last required him to execute all such matters as Lord Vere Beauclerk should propose to him, for his majesty's service. The instructions to his lordship contained all the heads of enquiry relating to the trade and fishery, and the abuses and irregularities so long complained of, and they were fifty in number.
We are told, that on the 24th of May 1729, a box was sent to the Lord Vere Beauclerk, in which were eleven setts of Shaw's Practical Justice of the Peace, each impressed on the covers, in gold letters, with one of these titles, Placentia, St. John's, Carboneer, Bay of Bulls, St. Mary's, Trepassey, Ferry-land, Bay de Verd, Trinity Bay, Bonavista, Old Parlekin IN NEWFOUNDLAND ; together with thirteen printed copies of Stat. 10 & 11 Will. 3, and a bundle containing the acts relating to the trade and navigation of this kingdom. And thus provided, his lordship and the governor set sail for Newfoundland, in the summer of the year 1729.
Having brought down this history to the period, when an attempt was made to afford some sort of civil government to Newfoundland, I shall make a short pause in the narrative ; and call the reader's attention to some few documents, that will more strongly impress upon his mind the actual state of things in that island, and the pressing necessity there was for the interposition of the parliament, or of the executive government, to correct abuses, and establish some sort of regular authority. I have before given a particular account of the enormities subsisting within three years after passing Stat. 10 & 11- Will. 3, from a letter written by a person then confided in by the government at home ; I mean Mr. Larkin. It is very plainly to be collected, from
the representation made by that gentleman, that this statute was ineffective and inadequate from the very beginning. What is inapplicable in its origin, is not likely to become more useful in a course of time. It will be found, in fact, that in all the time that elapsed between passing that act, and the year 1729, disorder and anarchy increased more and more ; and nothing remained but to try another system.
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Justices appointed—Opinion on raising Money by the Justices— Contest between the Justices and fishing Admiral—Opinion on the Authority of the Admirals—A Court of Oyer and Terminer proposed.—Such Commission issued—Lord Baltimore revives his Claim—The Peace of 1763— Remarks of the Board on Stat. 10 & 11 Will. 3.—Newfoundland a Plantation—Custom-house established Property in Flakes, &c., discussed—Stat. 15, Geo. 3, c. 31.
SOME home might reasonably be entertained, that the establishment of a civil government, and the appointment of justices of the peace with proper officers for executing the law, would have been received by all as a desirable improvement in the state of society in the island, and it might be expected, that such as appointment could not fail of its effect. But the cause which had always operated to prevent any suffcient authority being introduced into that place, opposed itself to this new establishment. The western merchants, who had been silent, while this measure was in agitation, were ready enough to bring complaints of its consequences, when carried into execution; and we shall soon see the struggle made to prevent any lawful authority taking root in Newfoundland.
The government soon had to regret, that they had not taken the advice of the board of trade, to bring forward a bill in parliment for correcting all the abuses, then subsisting there ; for it will be found that the opposition raised against the civil governor and his justices, was on account of their not deriving their authority from parliment, but only from the king in council. How futile soever this reason may be, it had its effects in staggering many, and contributing to bring the office, and the persons bearing it, into great question, if not contempt.
Mr. Osborn, upon his arival, proceeded to carry into execution his commission. He divided the island into convenient districts, and appointed in each of them, out of the inhabitants and planters of the best character, such a number of justices of the peace and constables, as seemed necessary. In order for building a prison, he ordered a rate, such as the justices represented, he says, to him as of little burthen to be raised, within the districts of St. John's, and Ferryland ; and a prison was to be built in each of those places. It was
not greater than half a quintal of merchantable fish per boat, and half a quintal for every boats'-room, including the ships-rooms of ships fishing on the bank, that had no boats ; with the like proportionable rate upon such persons in trade as were not concerned in the fishery ; this rate was only for one fishing season. He erected several pair of stocks, and he expressed a hope that the measures he had taken would be sufficient to suppress the great disorders that had so long prevailed.
But he says he most feared, that as the best of the magistrates were but mean people, and not used to be subject to any government they would be obedient to orders given them, no longer than they had a superior amongst them. He says, that he and Lord Vere had done many acts of justice to the inhabitants and planters, particularly at Placentia, where they restored several plantations that Colonel Gledhill had unjustly possessed for several years ; and many more might have been taken from that officer, had the real proprietors been on the spot to sue for them.
When Lord Vere, and Mr. Osborn, returned to England, they made a report of what they had done ; in order to be ascertained of the ground on which they acted, they wished the opinion of the law-officers might be taken on some points, and four questions were accordingly referred to the attorney-general, then Sir Philip Yorke. The main point was the levying money for building the prisons ; and the attorney-general was clearly of opinion that the justices of the peace in Newfoundland had not sufficient authority to raise money for building a prison, by laying a tax upon fish caught, or upon fishing-boats ; the rather because Stat. 10 and 11 Will. 3. directs that it shall be a free trade. The power of justices of the peace in England for building gaols depends, says he, upon Stat. 11 & 12 Will. 3, c. 19. by which they are enabled to make an assessment upon the several divisions of their respective counties, after a presentment made by the grand jury at the assizes, great sessions, or general gaol delivery. As the justices of peace were by their commisions, to act according to the law of England, he apprehended they ought to have pursued that act of parliament as nearly as the circumstances of the case would admit, and to have laid the tax, after a presentment by some grand jury ; and then it should have been laid upon the inhabitants, and not upon the fish or fishing-boats. So far as the people had submitted to this tax, there might, he said, be no occasion to call it in question ; but he could not advise the taking of rigorous methods to compel a compliance with it.
As to assaulting any of the justices or constables, or any resistance to their authority ; that, says he, might be punished by indictment, fine, and imprisonment at the quarter sessions ; and for contemptuous words spoken of the justices or their authority, such offenders could only be bound to their good behaviour. Destroying the stocks or whipping-posts were indictable offences. He was of opinion the justices could not decide differences relating to property, their power being restrained wholly to the criminal matters mentioned in their commission.
He thought neither Captain Osborn, nor the justices had power to raise any tax for repairing churches, or any other public work, except such works for which power was given to justices of the peace in England to levy money, by particular acts of parliament.
Mr. Fane was likewise consulted upon these points, and was of the same opinion ; however he adds, for their lordship's consideration; admitting the Stat. 11 & 12 Will. 3. had not been strictly pursued, yet as the assessment of fish was equally laid, as the people had submitted to it, as no other way could be thought of for raising the tax ; and as his majesty's commission would be intirely ineffectual, unless a gaol was built, whether any inconvenience could arise, if upon the refusal of any of the persons assessed, the method laid down by Stat. 11 & 12 Will. 3. were pursued to compel a compliance with it. Upon being again consulted, he says, he thought Captain Osborn, as he had acted with so much caution and prudence, and had taken no arbitrary step, in execution of his commission, could not be liable to a prosecution in England, in case the inhabitants should not acquiesce in the tax. He thought it absolutely necessary the tax should be levied according to the Stat. 11 & 12 Will. 3. and notwithstanding the proceeding already had was not entirely agreeable to that law, he thought Captain Osborn would be very well justified in pursuing it, as it seemed the only method whereby the design of his majesty's commission could be executed.
Such were the discussions raised on the occasion of these attempts to improve the police of the island. Mr. Osborn again went to Newfoundland : but in a letter from St. Johns' in September 1730, he gives a very bad account of the new institution. He says, he had hoped that a proper submission and respect would have been paid to the orders he had given, and to the magistrates he had appointed ; but instead thereof, the fishing admirals, and some of the rest of the masters of ships and traders in the island had ridiculed the justices' authority very much, and had used their utmost endeavours to lessen them in the eyes of the lower sort of people, and in some parts had, in a manner, wrested their power from them. The admirals had brought the powers given them by the fishing act in competition with that of the justices, and had not even scrupled to touch upon that of the governor. All this discord proceeded from a jealousy the admirals and the rest of the masters of ships had conceived, that their privileges granted them by Stat. 10 & 11 Will. 3. were invaded by these magistrates ; which power, say he, “those admirals could hardly ever be brought to make use of (without it was to serve their own purposes) before, nor till they saw these officers established ; and they are now, adds the governor, doing all they can against these men, only because they bear this commission. Indeed, says he, I find by their will, they would be sole rulers, and have nobody to controul them in their arbitrary proceedings. He expostulated with them, but it seemed to serve no other purpose than to raise their resentment against him, as the abettor of the justices. He could not charge the justices with having taken any arbitrary steps ; their fault was rather the contrary, whereas the admirals were guilty of many.”
“The commission of the peace was in general disliked by all the masters of ships, who were the chief people that opposed most of the steps the governor had taken ; for which reason, and partly from the indifference of some of the justices, in their offices, who thought they suffered in their way of trade, and got the ill will of the people they dealt with, and partly from the incapacity of others, the commissions of the peace were but indifferently executed. However the governor, notwithstanding this opposition, proceeded to make appointments in places where he had before made none.”
The prison and court house at St. Johns' were nearly finished, and people had very well complied with the rate. He agreed to a presentment for a rate to build a prison at Ferryland ; and he said, he did not doubt but the very sight of these two prisons would, in some measure, check many people in their evil courses.
Memorials were presented to the governor, by the justices of St. Johns', complaining that they were obstructed in their duty by the fishing admirals, who had taken upon them the whole power and authority of the justices, bringing under their cognizance all riots, breaches of the peace, and other offences, and had seized, fined, and whipped at their pleasure ; they had likewise appointed public-houses to sell liquor, without any licence from the justices ; the admirals told the justices, they were only winter justices, and seemed to doubt of the governor's authority for appointing ; that the authority of the admirals was by act of parliament —the governor's only from the privy council. This distinction in the authority from whence they derived their power, was thought sufficient for the admirals to presume upon ; and the comparative pretensions of them and the justices were rated accordingly in the minds of the ignorant and malicious.
The towns in the west were not backward to join in this clamour against the justices ; they complained that the governor had taken the power out of the hands of the fishing admirals, and vested it in the justices, who had proceeded in an arbitrary way to tax the servants and inhabitants ; had issued out their warrants not only against servants, but against the masters of vessels themselves, in the midst of their fishery ; to their great prejudice, and in defiance of the admirals and the act of parliament. They suggested that these justices were, some of them New England men ; and none of them ever coming to England, as the admirals did, there was no redress to be obtained against them for their illegal proceedings, They said, some of the justices supplied the fishermen and seamen with liquor at exorbitant rates, though the merchants would supply them at a moderate advance. After stating such plausible topics, which, it was well known, would always be listened to when Newfoundland was in question ; they prayed, “That such justices might have no power during the stay of the fishing ships ; but that the admirals might resume their authority, and that the commodore and captains of men of war should be ordered to be aiding and assisting to them therein.”
This competition between the fishing admirals and the justices was taken into consideration by the board of trade, who called for the opinion of Sir