p. 1979 N
GOVERNOR HAMILTON TO EARL BATHURST:
WITH PETITION OF SOME INHABITANTS OF ST. JOHN'S.
RECORD BOOK, ST. JOHN'S, NEWFOUNDLAND. Volume 31, page 363. No. 68.
Fort Townshend, St. John's,
Newfoundland, 3rd Feby, 1821.
have been requested by a large but not a general Meeting of the
Inhabitants of St. John's to transmit the accompanying Petition which as it is their wish it should be presented to His Majesty through the proper channel, I have considered it my duty to forward to your Lordship, though I can neither approve the statements, or coincide in the conclusions ; I have therefore enclosed a copy of the Petition with such notes as may perhaps facilitate your Lordships reference to those documents on which you will form an opinion and with such observations of my own as appear to be sanctioned by them, and the experience which my residence here has enabled me to obtain.
I have the honor to be with great respect, My Lord,
Your Lordship's Most obedient humble servant,
The Right Honble. The Earl Bathurst K.G., &c., &c., &c.
To the King's most excellent Majesty,
The humble Petition of the Inhabitants of St. John's in the Island of Newfoundland,
That we your Majesty's most dutiful and loyal subjects humbly beg leave to lay our many and great grievances at the foot of your august throne in the full conviction of that paternal solicitude with which your Majesty watches over the interest and happenings of all your people, even in the remotest parts of your extensive empire, and we humbly conceive ourselves
entitled to your Majesty's peculiar protection from the circumstance of our having no Colonial Legislative Government. In thus appealing to your Majesty with a claim to especial consideration we are naturally reminded that we labour under the want of that representative organ of expression which is the boast of the British constitution, and which has been conceded to the least considerable of the other English Colonies, but, for reasons that have never been explained to us, has been withheld from us, alone ; We are satisfied that your Majesty will not interpret any expression of regret for the singularity of our situation, into a want of confidence in your Majesty's anxiety for our welfare, or in the wisdom of Parliament. Placed as we are at the distance of two thousand miles from your august throne, and without any constituted body whatever, to sympathize in our wants, and represent our wishes, it is hardly possible that our Petitions or complaints should reach your Royal Ear with that Zeal and fidelity in the report which are at all times necessary to gain attention and indispensable to obtain adequate relief ; as a proof of what we advance we would only beg to recall to your Majesty's recollection, events which from their magnitude and misfortune could not have entirely escaped it—we allude to the great and destructive fires which in the short interval of a fortnight visited the Capital of the Island and laid one half of its buildings in ashes. The town of St. John's is the principal depository for the supplies, and productions of the fisheries of Newfoundland, and it was necessary to rebuild it immediately. But as prudence suggested the propriety of widening the streets in order to prevent the spreading of any further fire, and as a large portion of the ground required was the private property of individuals, it became necessary to obtain the sanction of the Legislature. At the recommendation of the Inhabitants a Bill was prepared in Newfoundland, and sent to England for the purpose of being submitted to your Majesty's Government and passed into a law, but such was the delay attending the measure in England, that although no alteration of any movement was made in the Bill, it did not reach this Island in the form of a Law until near three years after the town of St. John's had been destroyed. In the meantime a third fire had visited and consumed the remainder of the old town, and the whole was rebuilt in the best manner that circumstances would admit, but not exactly conformable to the projected Bill as there was no legal means of compelling its observance. When therefore the long expected bill did arrive, it came with all the inconvenience of an ex-post-facto law, and placed a considerable number of the most costly and valuable buildings in the town in the predicament of standing contrary to the Act of Parliament. We have stated this fact without any feeling of discontent, but merely to prove to your Majesty the neglected condition to which we are exposed from having no superintending Legislature in the Island.
But may it please your Majesty it is not the want of a local Legislature of which we have principally to complain, it is the state of such Laws as have been made for us, and still more of the administration of those Laws. It is the happiness of all who bear the honourable title of British Subjects to unite in one common feeling of loyalty and affection for the pure and impartial
manner in which Justice is administered to them, it is in this particular that we stand alone and distinguish from every other portion of your Majesty's people. In the neighbouring Colonies in North America, and in all the British West Indies, the Judgment Seat is filled by gentlemen of professional education and previous distinction at the bar. In the British possessions in the east, the persons who preside in the Courts are selected from the upright and cultivated ranks of Westminster Hall, and are only second to the Judges in England. But in Newfoundland composed as it is of natives of Great Britain and Ireland or their immediate descendants, and more clearly connected with the parent state by proximity of situation & frequency of inter-course than any other Colony, the administration of Justice is confided to Captains, Lieutenants and even Masters of the Navy. The Act of Parliament for establishing Courts of Judicature in Newfoundland authorizes the Governor for the time being to institute Surrogate Courts in different parts of the Island with full power to hear all suits and complaints of a civil nature arising within the Island and to determine them according to the law of England. In exercise of this important power, the Commanders of such of Your Majesty's Ships as happen to be stationed in Newfoundland are invested with Surrogate Commissions immediately on their arrival, and sent on Maritime Circuits to expound the laws of England in the character of Judges. We humbly represent to Your Majesty that it is hardly possible for an Officer in Your Majesty's Navy, if he has been attentive to his own profession, to acquire so competent a knowledge of the abstruse and difficult science of the law, as to enable him to dispense Justice among his fellow men, and that he can barely take the Judge's oath of office with a correct sense of its seriousness and importance. We beg to be understood to speak with every sentiment of respect for the Navy as a profession, we feel a pride in the gallantry of its heroes, and gratitude for the security they afford us. But we cannot but know that the gentlemen of the Navy are educated from their youth in a system of their own, apart from all the Civil Institutions of the Country, and necessarily less conversant with those institutions than any other class of your Majesty's Subjects. Yet to such men in the dispensation of Justice entrusted in Newfoundland and Justice according to the law of England !
We are unwilling to trespass unnecessarily on Your Majesty's time, but that we may not be supposed to advance, what we are not prepared to prove, we will beg Your Majesty's patience while we state a few examples which we have selected merely as being more easy of access to Your Majesty.
In the year 1816 Messrs. Crawford & Co. a Mercantile firm in this Island were declared insolvent in the Surrogate Court of St. John's, and their estate vested in trustees, and sold for the purpose of distribution between their Creditors amongst whom were claimants from Scotland to the amount of £111,000. The Surrogates rejected the Scotch Claims and the case went to the King in Council upon a nice point of conflicting Bankrupt law. At the hearing however it was found that the Surrogates had forgotten the first essential step of citing and examining the Insolvents before they proceeded
to a Declaration of their Insolvency, and consequently all their proceedings were null and void from the beginning. In the meantime the Insolvents had left the Country, and the proceeds of their Estate had been sent to Scotland, where they were attached by the Court of Sessions, and the Newfoundland Claimants having no longer any control over the persons or the property of the Insolvents, were compelled by a palpable mistake of their Judges, either to compromise their rights, or to re-engage in endless litigation.
In the course of the last Summer certain differences had arisen at Sandwich Bay on the Coast of Labrador respecting the rights of the parties to a Salmon Fishery, and a Surrogate Court was held there for the purpose of deciding them, but instead of hearing the proofs of the case & determining according to Law, the Surrogate decided without a trial or any enquiry into its merits, and thus was the unfortunate party ruined without redress, because the Surrogate acting as a Judge is not responsible by law for his errors.
Your Majesty is informed that a duty of sixpence per month is laid by Act of Parliament upon the wages of Seamen and other persons employed in Ships and vessels for the support of Greenwich Hospital, and that all persons employed in open boats on the Sea Coast are exempted from the payment of the duty, probably as being generally poor themselves, and not falling within the benefit of the charity or the policy of the tax. By a strange construction of the Act all open Boats however small their dimensions have been subjected to the duty in this Island, although it is well known that it is not levied upon open boats in any other place in Your Majesty's Dominions. But the reason of this extraordinary construction may perhaps be explained by the fact that the Surrogates who so construed the law were the Collectors of the duty, and as a compensation for their trouble received a premium of Twelve & half per cent. upon all the monies which they collected.
But it is not of the ignorant or wilful misconstruction of the law as it may affect our properties of which we complain to Your Majesty so much as it is of the flagrant and unlawful violation of our persons.
* * * *
An opinion is gone abroad and it is not without its abettors in this Island, that Newfoundland is regarded by the parent country, merely as a Nursery of Seamen, and with this view that it is the policy of Government to discourage all settlement in the Island. Supposing this to be the case it may be sufficient to explain how it has happened that this Island, the oldest of the British Settlements in America, placed in the same latitude as England, & possessed of a great staple which is peculiarly its own should remain in the same state as when it was originally discovered, without cultivation, and without roads, the first requisite of civilized society. But we humbly conceive that such is not the policy of Great Britain. Before the statute of King William the 3rd, a number of persons were settled in Newfoundland, and it was one of the professed objects of that Statute to regulate the respective rights of the transient and sedentary fisheries. In the treaties between Your Majesty and foreign powers, the right of settling those parts
of the Island where strangers are permitted to fish is expressly reserved to Your Majesty's Subjects, and the right of settlement is the only check upon foreign competition in the fisheries. It is well known that Newfoundland contains about 100,000 Inhabitants, that its exports have in prosperous years exceeded Two Million Sterling per annum, and its Imports chiefly consisting of British manufacture and productions have been more than half that amount, its trade is entirely carried on in British Shipping and employs more Seamen in Navigation than were even employed in fishing during the best years of the transient fishery, upwards of 460 vessels having entered the port of St. John's alone during the present year. We must therefore look to other causes for our neglected condition that the intentional policy of the parent state, and we are induced to believe that it has been owing solely to the exigencies of the late War, and the more pressing demands of the Empire upon the attention of Your Majesty's Government.
But we humbly conceive that the time is at length arrived when the state of this Island will be taken into consideration, and some system adopted which may be more in unison with the altered condition of these extensive, populous & valuable possessions of Your Majesty's Crown.
Your Petitioners therefore most humbly pray that Your Majesty will
take their case into your most gracious consideration, and endow Newfoundland with all the rights and privileges of your Majesty's other transatlantic possessions, and especially to cause the Courts of Justice to be reformed, so that the laws may be administered to them by competent Judges.
And your Majesty's Petitioners as in duty bound will ever pray, &c., &c.