p. 1919 C
EXTRACTS FROM EVIDENCE OF AARON GRAHAM
GIVEN BEFORE COMMITTEE APPOINTED TO ENQUIRE INTO THE STATE OF THE TRADE TO NEWFOUNDLAND.1793.
THIRD REPORT FROM THE COMMITTEE APPOINTED TO ENQUIRE INTO THE STATE OF THE TRADE TO NEWFOUNDLAND. [ORDERED TO BE PRINTED 17 JUNE 1793.] pp. 1-11, 83-84.
Have made a further Progress in the Matters to them referred, and have examined several other Witnesses, the Substance of whose Evidence is as follows :
AARON GRAHAM, Esquire, being examined, was asked, Whether he had ever been in Newfoundland ? he said, Yes, he was Thirteen Years Secretary to the Governors of the Island ; he was there from the Year 1779 to the End of the Year 1791. . . . And being asked, What were the Complaints which lie heard of respecting the Mode of administering Justice ? he said, He meant, to confine himself in that Observation, more particularly to the Servants than to the Merchants ; until the Year 1791, he does not recollect to have heard many Complaints from the Merchants, but many on the Part of the Fishermen, from the Difficulty which they always found in getting their Complaints attended to at all ; he believes that all the Merchants concerned in the Trade of Newfoundland will allow, that from the Beginning of the Establishment of a Fishery upon that Island, there have been Courts for the Trial of Civil Actions ; at St. John's, it was held by the Governor ; at the Out Ports, by the Captains of the Ships of War, who were called the Governor's Surrogates ; neither the Governor's nor the Surrogates Powers were doubted, until about the Year 1780, when Governor Edwards had an Action commenced against him, which was tried at Exeter (for a Decision of his made at Saint John's). That the Witness attended the Trial, and the Matter by the Recommendation of the Judge was left to Arbitration ; from that Time he frequently heard, both in Newfoundland and in England, the Powers of the Governor and his Surrogates spoken of as illegally assumed by them ; Admiral Campbell, who was Admiral Edwards's Successor, would not sit as a Judge ; but the Practice continued by the Surrogates at the Out Ports, until the Year 1788 ; when Captain Pellew, One of the Surrogates, had an Action commenced against him by Mr. Hutchins of Dartmouth, for a Decision of his (the Captain's) made at the Bay of Bulls. Captain Pellew
sent the Attorney's Letter to him (the Witness) desiring to know what was to be done in the Business ; the Governor (Admiral Elliot) was then in Scotland, and Admiral Milbanke, who was nominated as his Successor. (but not appointed) being in Town, the Witness took the Liberty of calling upon him, and requested of him, officially, to state the Matter to the Admiralty, and to request, at the same Time, for his own Sake, that the Solicitor of that Board might (the Governor) and the Captains of the Ships of War for the future ; the Case was referred to the Law Officers of the Crown, who gave it as their Opinion, that neither the Governor nor his Surrogates, were authorized to sit as Judges in such Cases as that which had been the Ground of Action against Captain Pellew ; the Witness should have said, that not only Admiral Campbell, but his Successor also (Admiral Elliot) refused to sit as a Judge for the Trial of Civil Actions ; the Consequence was, that the Causes which had been usually tried by the Governor at St. John's, such as Disputes with respect to Accounts Current, &c. were then carried to the Court of Session, and to the Court of Vice Admiralty, for the Merchants found it absolutely necessary that they should be carried somewhere, otherwise they could not proceed with their Business ; and it may not be amiss to remark that the Court of Vice Admiralty, even in the Time when the Governors sat as Judges, took Cognizance of such Cases. That although the Court of Session took up this Business for the Convenience of the Trade, yet the Justices knew they had as little or rather less Power to determine in such Cases than the Governor himself had, they therefore did it negligently, rather consulting the Inclination of the Parties, and proceeding as Arbitrators, not as Judges, in such Causes as they undertook to try ; the Consequences was, that the Boatkeepers and Fishermen found it very difficult to get attended to at all. The Governors would not tell them that they had not Authority to hear them, but desired them to go to the Magistrates ; the Magistrates, if it was not perfectly convenient to them, or if the Complaint was against a Person whom they thought could or would resist this assumed Authority of theirs, desired them to go to the Court of Vice Admiralty, and that Court did or did not attend to it, just as suited the Will of the Judge ; and the Witness has known Instances of Boat-keepers being banded backwards and forwards for a whole Season, and not able to get their Business settled at last.
That upon Admiral Milbanke sailing for Newfoundland, lie was, on the Day of His Departure from Spithead, furnished by the Board of Admiralty with the Opinion before alluded to. The News of the Prosecution of Captain Pellew had reached the Island before the Admiral ; and none of the Surrogates had taken upon them to act as Judges upon their respective Stations. The Court of Session also at St. John's had ceased to act at that Place ; and the Court of Vice Admiralty waited the Admiral's Arrival, to know whether it had a Right to proceed in the old Way ; the Admiral would not give them an Opinion upon the Subject, of Course there was a total Stop to the Trial of Civil Actions throughout the Island, which was a very great Prejudice to the Merchants, as the Want of a Court could not fail to injure them very materially. The Admiral having never been in the Island before, asked
the Witness's Opinion and Advice, of what was best to be done, knowing there was a Clause in his Commission which authorized him to appoint Judges, and an Article in his Instructions which directed him to take Order in any Matter for the Safety of the Island, which the Witness thought was never in greater Danger than at that Time ; he advised him to avail himself of the Clause in his Commission which authorized him to appoint Judges, and an Article in his Instructions which directed him to take Order in any Matter for the Safety of the Island, which the Witness thought was never in greater Danger than at that Time ; he advised him to avail himself of the Clause in his Commission, and appoint a Court under the Denomination of a Court of Common Pleas ; he did so ; and, that as little Alteration as possible might be made from the old Mode of Proceeding, he appointed the Captains of the Ships of War to be Judges at the Out Ports on their respective Stations, so that they only changed the Name of Surrogate for that of Judge, and continued to do the Business exactly or nearly in the same Manner as they had before been used to do it ; the principal Alteration was in the Appointment of the Court at St. John's, where, instead of sitting as a Judge himself, he appointed Three Gentlemen to sit as Judges. The Mode of Proceeding in that Court was by a Jury, to which the Witness never heard any Complaint upon the Spot,. beyond that of its being sometimes inconvenient for those who were summoned upon the Jury to give their Attendance ; and he believes, and is firmly persuaded, that the violent Memorials transmitted to the Lords of the Committee of Privy Council for Trade, by the Merchants of Dartmouth, Poole, and a Number of other trading Towns of this Kingdom, against that Court, would never have been thought of, if the Gentlemen who signed them had been upon the Spot to have seen the good Effects of the Court ; . . .
Then the Witness further informed your Committee, That Admiral Milbanke, on his Return to England in the Year 1789, reported to His Majesty's Ministers the Steps he had taken in erecting the Court of Common Pleas. That he sailed again the next Year, without receiving any Instructions respecting that Court ; it therefore continued to act for the Year 1790 in nearly the same Manner it had acted in the Year 1789. That there was One Alteration made, which was, that as the Court, in the First Year of its Proceeding, had in all Cases summoned Juries, in the Second, finding it would be more convenient for the Gentlemen of the Trade to be allowed to make their Election of having their Causes tried with or without a Jury, the Judges consented thereto ; and Things went on in a very easy Manner, and much to the Satisfaction of every Body in the Island. Previous to the Admiral's sailing again in 1791, an Act of Parliament passed, for establishing a Court of Civil Jurisdiction in the Island, which was to be held at St. John's only. This very properly alarmed the Merchants, as the Difficulty of coming from the Out Ports to that Place, was in the First Place very great ; and before they could possibly obtain a Writ for attaching the Fish and Oil of a Boatkeeper, who might be considerably in their Debt for Supplies for carrying on the Fishery, the latter might, and he knows, in very many Instances did, take the Advantage, and dispose of their Property contrary to
the usual Practice of the Fishery, and thereby defrauded their Supplyers (the Merchants) to the Amount of many Thousand Pounds. If there ever was a real Cause of Complaint on their (the Merchants) Parts, it was in that of confining the Court to St. John's alone ; and he hesitates not to say, if it had been continued, that it would have been impossible for them to have carried on their Trade in any other Part of the Island ; and this leads him to say, he is very sorry they were so hasty in making their Representations to the Board of Trade, in all of which they declared they wanted no Court ; therefore, the giving them only One, was coming as nearly to their Wishes as it was possible to do, without actually complying with them ; and to themselves alone, therefore, they are indebted for the Inconvenience and Losses they experienced from a Want of the usual Courts at the Out Ports.
Upon the Whole, the Witness thinks, an Establishment nearly similar to the old one, under the Governor and his Surrogates and which that made by Admiral Milbanke really was, is the best that could be adopted ; his principal Aim was, to legalize what had been so long done from Necessity ; he neither wished, nor did he make any considerable Alteration.
And being desired to explain more particularly the Sort of Court which he thinks should be established in Newfoundland ? he said, Every Body must allow, that there has grown out of the Fishery a very extensive Trade, which makes the Business of a Court at St. John's, particularly, much more intricate and troublesome than it was formerly ; he is therefore of Opinion, that the Governor should not sit as a Judge, but that a Court should be established there as the Supreme Court of the Island, in which should preside a Gentleman appointed from England. If all Trials are to be determined in it by Juries, there should be no Assessors ; but if the Trials are to be without Juries, he thinks that the Governor should have an Authority to appoint two Assessors to assist the Judge. That the Governor should have Power also to appoint the Captains of the Ships of War Judges upon their respective Stations at the Out Ports, who should proceed in the Manner they had been used to do before, under the Denomination of Surrogates, which Experience shews to have been a very good System. From the Surrogates Courts there should be an Appeal to the Supreme Court at St. John's for Sums above £. 30, and from that Court to England for Sums of £. 100 ....................... And being asked, Of what Use does he think the Custom House at Newfoundland ? he said, Within these few Days he has heard that it was asked for by some of the Merchants, and by the Request being complied with by Government, he took it for granted they saw the Reasonableness of it.—And being asked, Whether he knew any other Reason for it ? he said, No ; for if there is any Part of His Majesty's Dominions where a Custom House is
perfectly unnecessary, it is Newfoundland.——.............
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Mr. GRAHAM being again called in, he continued his last Examination, and said, Not to obstruct the Fishermen in taking away such Stuff as they wanted, under Pretence of the Land being inclosed, but to open their Fences,
and to let those People pass and repass in whatever Direction they might think most convenient and proper for them to go. Admiral Elliot, ever attentive to the Interests of the Fishery, continued those Regulations ; and in consequence of Directions from the Government of this Country, made no other Grant during the Time he was Governor of Newfoundland, than such as was thought for the Encouragement of the Fishery, and which he was authorised to do by his Instructions.
The Form of which Grant the Witness delivered in to your Committee, and is hereunto annexed. Vide Appendix, No. 10.
And he further said, That Admiral Milbanke improved upon the Plan thus laid down by Admiral Campbell, and followed by Admiral Elliot, and extended it for the Prevention of an Increase of the Residents in the Manner he has already stated. In Addition to which, he begged leave to lay before the Committee a Copy of a Letter from the Governor to One of the Inhabitants, in order to shew the Manner in which his Proclamations were enforced ; also another Paper, which will serve to shew the very great Caution observed by the Governor in giving Permission for the Erection of Houses for the Use even of the Inhabitants, who were born and had always lived in the Island, which your Committee have hereunto annexed. Vide Appendix, No. 11 (a) and (b).—And being further examined, he was asked, Have these Inclosures been made by Residents, or by Persons going to and from Europe Annually ? he said, The principal Part of them have been made in consequence of Grants to the Officers of the respective Military Corps doing Duty in the Island, who on their Departure, on being relieved, generally sold it. Admiral Campbell observing the Extent to which this Evil had increased, gave a small Spot of Ground, surveyed and particularly described by the Engineer, to each of the Corps doing Duty at St. John's, directing that the Description of it should be constantly hung up in the Barracks, and the Ground to be delivered over to the succeeding Corps upon every Relief of Troops taking Place ; and strictly forbad the Officers and Soldiers to sell the Whole or any Part of it as private Property, or to make any other Claim upon their Successors than a fair Demand for the Value of the Seeds in the Ground. Grants have also been made to Officers in the different Civil Departments and likewise sold by them as private Property ; but if the Regulations already made upon that Head are attended to by succeeding Governors, the Evil cannot possibly increase. The Proclamation issued by Admiral Milbanke, which the Witness has delivered in to the Committee, reduced the Winter Inhabitants of St. John's alone upwards of Eight hundred the First Year. . . . .