Philip Yorke, then attorney-general, and he reported, that upon a view of the commission to the justices, of Stat. 10 & 11 Will. 3. and of all the complaints, it appeared to him the whole authority granted to the fishing admirals was restrained to seeing the rules and orders contained in that act, concerning the regulation of the fishery, duly put in execution ; and to the determination of differences arising between the masters of fishing boats, and the inhabitants, or any bye boat-keepers, touching the right and property of fishing-rooms, stages, flakes, &c. which was a sort of civil jurisdiction in particular cases of property ; whereas the authority of justices extended only to breaches of the peace. He was therefore of opinion, that the powers granted to the justices were not inconsistent with any of the provisions of the act, and that there was no interfering between the powers given by the act to the admirals, and those by the commission to the justices.
The struggle between the fishing admirals and the justices was still kept up ; the west country merchants, and masters of ships supporting the former, and the governor standing by the latter. This produced complaints on both sides ; and no doubt, in such a contest a just cause of complaint might often be found on both sides. But the aggressors were certainly those who set themselves against the authority of the governor and justices, and who, by their conduct on this occasion, plainly shewed they wished the inhabitants and poor planters should be deprived of all protection from legal government, and should be left wholly at their mercy.
It was given in special charge to the succeeding governor, Captain Clinton. and to his successors, to make a report of what was done towards carrying into execution the new commission of the peace. In compliance with that charge, we find the governors return such accounts of the opposition of these admirals to the civil government, as are hardly to be credited but by those who have read what went before ; and after that it would be tiresome and nauseous to detail any more upon the subject. This contest continued for some years, till it was found that no opposition could induce his majesty's ministers to withdraw this small portion of civil government, which had not been granted till it had been loudly called for by the necessities of the island. The fishing admirals then became as quiet, and useless as before, and contented themselves with minding their own business, in going backwards and forwards to the banks.
While this question of the competition between the fishing admirals,
and the justices, was agitated, Mr. Fane also was consulted, respecting the distinct jurisdiction of these officers, and he agreed in opinion with the attorney-general ; he also at the same time delivered an ' opinion that is worth remembering ; namely, that all the statute laws made here, previous to his majesty's subjects settling in Newfoundland are in force there ; it being a settlement in an infidel country ; but that as to the laws passed here, subsequent to the settlement, he thought they would not extend to that country, unless it was particularly noticed. The question then will be, when
did this settlement take place? And it may be urged, that the policy having all along been to prevent settlement, and that persons should resort thither only for the fishing season, there is to this purpose a settlement commencing annually ; and that in truth, British subjects carry with them the laws of this country, as often as they go thither ; if so, all the law of England, as far as it is applicable to the state and circumstances of Newfoundland, is constitutionally and legally of force there. This was a question of much importance, but it has since been settled by the wording of the act of last session for establishing a court there ; which court is to determine according
to the law of England, as far as the same is applicable to the island.
Nothing material appears respecting the civil government of Newfoundland, till the year 1737, when the board of trade listened to the representation that had frequently been made by the governor, of the inconvenience of sending over to England for trial, persons who had committed capital felonies. In such cases the witnesses were glad to keep out of the way ; the felon was sent to England, without any person to prove his guilt ; a great expence was incurred, justice was disappointed ; or if the fact were proved, the poor witnesses was left to get back as they could, with the expence of their voyage, and residence, and the certain loss of one season's fishing.
It had been provided by Stat. 10 and 11 Will. 3. that such capital felonies might be tried in any county in England ; and in the commission of the peace lately given, this policy was so closely adhered to, that the justices were therein restrained from proceeding in cases of doubt and difficulty, such as robberies, murders, and felonies, and all other capital offences. It appeared to the board of trade that this scruple might now be got over ; and they proposed inserting in the commission that was to be given to Captain Vanbrugh, a clause, authorising him to appoint commissioners of Oyer and Terminer ; but the board wishing to be assured that the king's prerogative was not restrained in this particular, by the above provision in Stat. 10 and 11 Will. 3. they consulted the attorney and solicitor general, who thought the king's power was not abridged by that act. The board, in their representation to his majesty, state the example of a commission being granted to the commodores with other persons, for trials of piracy, as a precedent for trusting them with this authority to issue commissions for trying felons ; and that it was no more than was given to other governors of plantations. But they inform his majesty, that as this power might be too much to be entrusted in the hands of judges and juries very little skilled in such proceedings, they had added an article, which restrained the governor from allowing more than one court of Oyer and Terminer in a year, and that only when he was resident ; and he was further instructed, not to suffer any sentence to be executed, till report thereof be made to his majesty. But when the commission went before the privy council for approbation, all that part which gave this authority was directed to be left out ; so fearful were they of trusting such authority to those in whom they had lodged the civil government of the island.
So this point rested till the year 1750 ; when Captain Rodney, who was then governor, pressed the secretary of state for such a power to be granted. It was referred to the board of trade, where they recurred to what was projected in the year 1738 for Captain Vanbrugh's commission. A doubt arose with the board, whether this power might be given by instruction, or whether it must be inserted in the commission ; and Sir D. Ryder, then attorney-general, being consulted, he was of opinion, that such power could not be granted by instruction, nor any other wise than under the great seal ; but that the manner of exercising such power might be prescribed by instruction ; he thought the clause drawn for the commission of 1738 was sufficient, only that neither the power of trying, nor that of pardoning treason, should be entrusted with the governor, or any court erected by him. The commission issued accordingly, with this new power, to Captain Francis William Drake.
It may be remarked of this commission of Oyer and Terminer, issued under the new power given to the governor, that it has not been executed without some question being raised as to its legality. Persons, who were obstinately bent to believe there was no law in Newfoundland but Stat. 10 and 11 Will. 3. were disposed to doubt the power of the crown to give authority for issuing this, as well as the commission of the peace. It has been the interest and inclination of many at Newfoundland to contest everything that was not founded upon the same parliamentary authority as Stat. 10 and 11 Will. 3. But this spirit, whether of ignorance or wilfulness, has worn off, in a great measure, of late years, though it is occasionally at work even now. And it is to be lamented at this moment, that the advice given by the board of trade in the year 1718, and afterwards on the occasion of establishing the civil government in 1728, was not followed ; and an act of parliament passed for remedying all the abuses and irregularities at once, instead of resorting to the half measure that was then adopted, and which had all the difficulty we have seen to support itself.
If we are to judge from the dearth of matter in the books of the board of trade, things went on very quietly at Newfoundland for several years. We only find some scattered facts of no great importance.
* * * *
Import of live Stock, &c.—Representation on a Bill brought in by the Western Merchants—Three Acts passed— Complaints about Courts—Review of the Courts at Newfoundland—Fishing
Admirals—Surrogates—The Governor holds a Court—Courts of Vice-Admiralty and Sessions—The Governors cease to hold Courts—Court of Common Pleas instituted—Complaints against it— Representation—And Act passed for a Court of Civil Jurisdiction.
During the last five or six years that the board of trade continued in existence, there appears nothing of importance upon the books respecting this trade and fishery. That board was abolished in 1782. It was not till June 1784, that a committee of council was appointed by his majesty for matters of trade and plantations.
* * * *
A new subject of complaint had grown up in Newfoundland this was the hearing and determining of civil causes. Among all the grievances, and the expedients for remedying them, during the tract of time we have gone through, there seems to have been no solicitude or attempt to provide a court of civil jurisdiction. While this place continued merely a fishery, the causes of action between parties were simple and of less magnitude ; but of late years the population had encreased, and among the persons resident there were dealings of a mercantile nature to a great extent, and of a sort to need a judicature, that would command more confidence than any of the old establishments had been thought entitled to. There arose therefore, from time to time, discontents upon this head, and these led to measures that ended in making an intire new establishment of a court. To make this subject more intelligible, we should look back to the courts that had hitherto been known at Newfoundland, the nature and jurisdiction of which were brought under consideration at this time.
The first regulation that looked at all like a court, was the authority given by Stat. 10 and 11 Will. 3. c. 25. f. 15. to the fishing admirals, to hear and determine controversies and differences between the masters of fishing ships, and the inhabitants, or any bye boat-keeper, concerning the right and property of fishing rooms, stages, flakes, or any other buildings or conveniency for fishing or curing fish ; and if either party thought himself aggrieved, he might appeal to the commander of any of the king's ships belonging to the convoy. This was a civil judicature of a limited sort—the adventurers or merchants, it should seem, were not liable to it ; it was confined also in its object ; debts still remained without any mode of recovery, as well as all other personal wrongs of a civil nature.
Another jurisdiction was given to the fishing admirals by this act : by Sect 14 they were to see the rules and orders contained in that act concerning the reulation of the fishery duly put in execution; and this was given them,
as the act expresses it, to preserve peace and good government among the SEAMEN and FISHERMEN, as well in their respective harbours, as on the shore. This was a sort of police invested in them, which might be considered as partaking both of a civil and criminal authority. But this also, like the former, was limited as to the persons ; no authority was given that could be exercised over the merchants and adventurers, who seem to be considered by this act as persons who might have right done them ; but against whom it was not necessary to do any justice whatsoever—for, by the rules and orders of this act, the fishing admirals would be obliged to see they had ships-room ; and their seamen and
fishermen would be kept quiet and under controul ; but if these adventurers had taken possession of any fishing rooms, stages, flakes, or other conveniency for the fishery, the admirals had no jurisdiction to call them to account, and to make restitution to the right owner, their jurisdiction in that particular being confined to the masters of fishing ships, inhabitants, and bye boat-keepers.
The merchants and adventurers being therefore subjected by this act to no controul or authority whatsoever, when they begun to settle, and to have mercantile dealings, to a great amount, they had nothing to do but to take the law into their own hands ; and having possessed themselves of plantations or fish, or any thing else, in payment of debts, real or pretended, there subsisted, under this act, no power whatsoever to call them to account ; and it was, no doubt, for this reason, that the merchants have so constantly adhered to the support of this act, declaring that a free fishery, conducted under the policy of this act, was all they wanted, and complaining that every regulation made since that act has invariably operated to injure the trade and fishery. It was indeed the policy of this country to support a free fishery there, for ships going from hence, and to prevent settlement. So far the views of the government and the interest of the merchants concurred ; but the application of this principle had the effect of leaving the island to the mercy of the adventurers, who found it their interest at length even to promote settlement to a certain degree ; contrary to their own declarations, and to the policy of Stat. 10 & 11. Will. 3. ; for no part of which they seem to have had any value, but the feeble judicature and police it gave the island ; in consequence of which, they saw the whole fishery abandoned to their sole will and pleasure.
These observations upon the incomplete form of this judicature and police, suggest themselves upon the bare reading of the act ; but the experience of the manner in which it was executed, shewed all this in a more aggravated appearance. It has been too often repeated in the course of this historical enquiry to need repetition here, that the admirals were the servants of the merchants, inasmuch as they were the masters of some of their ships ; that in many cases, therefore, justice was not to be expected from them ; that is, in cases where their owners were concerned. In many others, where their owners or themselves were not concerned, there was always a partiality towards the description and class of persons with which they were connected ; and a poor planter, or inhabitant, (who was considered as little better than a law-breaker in being such) had but small chance of justice, in opposition to any