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Title: History of the government of the island of Newfoundland

Author: John Reeves

Release date: May 7, 2019 [eBook #59449]

Language: English

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*** START OF THE PROJECT GUTENBERG EBOOK HISTORY OF THE GOVERNMENT OF THE ISLAND OF NEWFOUNDLAND *** 



Transcriber’s Note: Obvious printing errors, such as word spacing,
turned or omitted letters, etc., have been corrected. Otherwise, the
original spelling is maintained. “St. Johns’”, where it appeared, has
been standardised to “St. John’s”. Sidenotes were moved to the beginning
of the paragraph to which they refer.





HISTORY

OF THE

GOVERNMENT

OF

NEWFOUNDLAND.




HISTORY

OF THE

GOVERNMENT

OF THE

ISLAND OF NEWFOUNDLAND.


WITH AN

APPENDIX;

CONTAINING

THE ACTS OF PARLIAMENT MADE RESPECTING

THE TRADE AND FISHERY.




BY JOHN REEVES, Esq.

CHIEF JUSTICE OF THE ISLAND.




LONDON:

PRINTED FOR J. SEWELL, CORNHILL;

J. DEBRETT, PICCADILLY; AND

J. DOWNES, No. 240, STRAND.


1793.




I give the Profits of this Book for the Relief
of the suffering Clergy of France, Refugees in
the British Dominions; and I beg of Mr. Sewell
to undertake the Trouble of managing the Publication
to the best Advantage for that Purpose.


J. REEVES.






PREFACE.


After my return from Newfoundland,
in the year 1791, I was
curious to look back into what had
been done, in former times, on the
subject upon which I had myself been
just employed. I accordingly looked
over the Newfoundland Entries,
and the Newfoundland Bundles
among the books which belonged to
the late board of trade; and I then
pursued the subject through the
Registers of the present committee
of council for trade and plantations.


I was very much struck with the
matter and reflections furnished by
this research; and I wished that the
useful information, which I had derived
from this retrospect, might be seen
by those, who had at that time to
consider the subject of Newfoundland.
Hence arose the present History; and
as the same subject is now before the
House of Commons, I have ventured
to print it, and throw it among the
other materials under examination.


If this public enquiry had not been
instituted, the story here told would
have been confined to the circle for
which it was originally intended.


J. R.


April 1793.




CONTENTS.





PART I.




Different Charters granted—Rules and Regulations
        of the Star Chamber—Of appointing
        a Governor—Additional Rules—Report
        against a Governor—Sir John
        Berry’s Advice—Bye Boat-keepers, what?—Question
        of a Colony argued—Stat. 10
        & 11 Will. 3. c. 25.
5




PART II.




Mr. Larkin’s Observations—Character of the
        fishing Admirals—Character of the Commanders—Want
        of Police—Opinion of the
        Board 1706—Representation 1708—For
        Sea Commanders to command at Land—Such
        Commission issues—Laws and Orders made
        at Newfoundland—Representation 1718—Claim
        of the Guipuscoans to Fish—Of the
        Land ceded by the French—A Salmon
        Fishery granted—Opinion on the 7th Sec.
        of Stat. 10 and 11 Will. 3.—Representation
        1728—Recommends a civil Government—A
        civil Governor is appointed—Disorders
        of Newfoundland, and Conduct of the fishing
        Admirals during this Period—Complaints
        from the Merchants.
22




PART III.




Justices appointed—Opinion on raising Money
        by the Justices—Contest between the Justices
        and fishing Admirals—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.
97




PART IV.




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.
129







[1]


INTRODUCTION.


I intend to give a short history of the
Government and Constitution of the island
of Newfoundland. This will comprise the
struggles and vicissitudes of two contending
interests.—The planters and inhabitants
on the one hand, who, being settled there,
needed the protection of a government and
police, with the administration of justice:
and the adventurers and merchants on the
other; who, originally carrying on the
fishery from this country, and visiting that
island only for the season, needed no such
protection for themselves, and had various
reasons for preventing its being afforded
to the others.


[2]


This narrative will divide itself into four
periods, or parts. The first will close with
the passing of stat. 10 & 11. Will. 3. c. 25.
by which the adventurers and merchants
were supposed to have obtained a preference,
and advantage over the pretensions
of the inhabitants, and planters. The
second will end with the appointment of a
civil governor, and of justices of the peace
in 1729; by which some stop was put to
the disorder and anarchy that had long
prevailed in the island, especially during
the winter seasons. This may be considered
as an advantage gained by the inhabitants
and planters. The third closes with
Stat. 15, Geo. 3. c. 31. commonly called in
the island Sir Hugh Palliser’s act, which was
intended for giving an advantage to the
fishery carried on from the mother country;
but, as it obliges both merchants and
planters to pay their servants’ wages, it
is equally abhorred by both parties; and
both parties have shewn great readiness to
join in asserting, that the fishery has gradually[3]
decayed ever since the passing of
this act. The fourth comes down to the
year 1791, when a court of civil jurisdiction
was established upon principles
which, it was thought, would secure the
impartial administration of justice to the
merchant and the planter, the rich, and
the poor, the master, and the fisherman.


[4]




[5]


PART I.


PART I. From Queen
Elizabeth to
Stat. 10 and 11
Will. 3.




Different Charters granted—Rules and Regulations
of the Star Chamber—Of appointing
a Governor—Additional Rules—Report
against a Governor—Sir John
Berry’s Advice—Bye Boat-keepers, what?—Question
of a Colony argued—Stat. 10
& 11. Will. 3. c. 25.




Different Charters
granted.


Newfoundland, like other new
discovered lands in America, was endeavoured
to be settled, and improved by
means of charters granted from the crown;
it being hoped that individuals would, in
this manner, be tempted to pursue the
public advantage, through the medium
of their private interest. Charters were
granted at five different times. The first
was in 1578 to Sir Humphry Gilbert, who
had thereby full power given him to possess
all lands in Newfoundland not in actual[6]
possession of any Christian prince.
By virtue of this authority, he, in 1583,
landed in St. John’s Bay, and we are told,
that calling together both English and
strangers then fishing, he took possession
of the country in the queen’s name, and
erected the arms of England upon a pillar
of wood, in testimony of her majesty’s
sovereignty.


The second charter was granted in 1610
by king James, to the Earl of Northampton,
Sir Francis Bacon, and several others, by
the name of the Treasurer and Company of
Adventurers and Planters of the City
of London and Bristol, for the Colony in Newfoundland,
with all the usual prerogatives
and immunities; but in this grant there
was a reserve to all persons of an entire
liberty to fish.


The third charter was granted to Sir Geo.
Calvert (the grantee of the province of
Maryland) and his heirs, of a tract of
land called the Province of Avalon, lying to
the south east point of the island, extending
between ports Fermose and Aquafort to
Petty Harbor, and from thence westward
to the bay of Placentia. There was also a
grant to him of the property of all islands
lying within ten leagues of the eastern[7]
shore, together with the fishing of all
sorts of fish, saving to the English the free
liberty of fishing, salting, and drying of
fish.


The fourth charter was granted in 1628,
to the Marquis of Hamilton, the Earl of
Pembroke, Earl of Holland, Sir David Kirk,
and others; and under pretence that Lord
Baltimore (the heir of Sir Geo. Calvert)
and other proprietors, had deserted the
plantation, this grant included the province
of Avalon. In this grant it was provided,
that no person should plant or inhabit
within six miles of the sea shore between
cape Race and cape Bonavista.


Thus far did the crown go in the granting
of four exclusive rights in Newfoundland.
But this detail gives us no information
as to the constitution and regulation
of the island, its trade and
fishery. On this head we find, that in
1615 Captain Richard Whitburne was sent
out with a commission from the high court
of admiralty, authorizing him to impannel
juries, and to make inquiry upon oath,
of sundry abuses, and disorders committed
every year, among the fishermen upon
that coast.


[8]


Rules and regulations
of the
star-chamber.


In the year 1633, the star-chamber took
up the subject of the fishery:—a petition
and complaint had been there preferred by
the merchants and owners of ships in the
west of England: and that court, after
taking the same into consideration, was
pleased to issue the following order, for
better regulating the trade.


If a man killed another, or stole to the
value of forty shillings, the offender was
to be brought to England, and the matter
was to be tried by the Earl Marshal; and
if the fact was proved by two witnesses,
the offender was to suffer death.—No ballast
was to be thrown out of ships to the
prejudice of the harbours—no person was
to deface or spoil any stage, cook-room, or
other building—the ship that first entered
the harbour was to be admiral—no person
should deface or alter the marks of any boats,
to defraud the owners—no person was to
steal any fish, train, or salt, or other provision,
belonging to the fishing ships—no
person was to set fire to the woods, or rind
the trees, except for cook-rooms—none
were to cast anchor so as to hinder the
haling of seines—none should rob the nets[9]
of any drift boats—no tavern should be set
up for the selling of wine, beer, strong water,
or tobacco—the company were to assemble
themselves on Sunday to hear divine service—the
mayors of Southampton, Weymouth,
and certain other towns, were to take
cognizance of all complaints made against
any offender upon land—the vice-admiral
in the counties of Southampton, Dorset,
Devon, and Cornwall, was to proceed against
offenders at sea.—These laws were to be in
force till they were annulled by his Majesty;
and the admiral in every harbour of the
island was to make proclamation of them.


On the 20th of February following, a
charter, being the fifth, was granted according
to the tenor of this order, made
by the star-chamber, to the merchants and
traders to Newfoundland.


In the year 1650, the council of state
gave a commission to John Treworgay, merchant,
who was then in the island, to order
affairs there for the best advantage of the state;
which commission was renewed in 1653.
A commission was also obtained in 1655
by Sir David Kirk (who had been one of
the grantees in the charter of 1628), together[10]
with John Claypole, John Goffe, and
others; but it does not appear that any
thing was done thereupon.


After the restoration, Lord Baltimore, who
had been dispossessed of the province of
Avalon, by the charter granted to the Marquis
of Hamilton and others, obtained
orders in 1660, for a restitution of that
province. And there was also on the
24th January 1660 a renewal and confirmation
of the charter granted to the
merchants and traders in February 1633;
on which occasion this additional provision
was made: “That no master or owner
of any ship should transport any persons
to Newfoundland who were not of the
ship’s company, or such as were to
plant and settle there.”


In support of this last provision, a letter
was written on the 4th December 1663 by
the lords of the privy council, enjoining
the magistrates of the western ports to take
care that no owners of ships, trading to
Newfoundland, suffered any persons to be
transported thither, other than such as were
of the ship’s company, and the officers of his
Majesty’s customs in the several ports therein[11]
named directed, and to charge all masters
of ships to observe this rule. In the 15th
year of Charles II. the parliament made some
regulation respecting this trade and fishery.
By statute 15 Car. 2, c. 16, penalties are
imposed on planters and others, who destroy
the fry of fish, or burn or destroy
boats left in the harbour, or pull down
houses or stages built by the English to live
in during the fishing season; and no toll
is to be demanded for fish of English
catching.


Of appointing a
Governor.


In the year 1667, the fishery of Newfoundland
underwent a more mature discussion
than it seems before to have received.
In August of that year several petitions,
were presented to the privy council from
the merchants, owners of ships, and others,
inhabitants of the towns of Totness, Plymouth,
Dartmouth, and places adjacent,
concerned in the trade to Newfoundland.
They stated, that several persons, upon specious
purposes, and for sinister ends, were
endeavouring to establish a governor, which
had always been pernicious to the fishery;
and because they were unable to attend
or bear the charges of solicitation, and
sending witnesses to such a distance, they[12]
prayed his Majesty to empower such persons of
the county of Devon, as his Majesty
should think fit, to hear and examine
the whole matter, and make report
thereof to the council. Upon consideration
of these petitions, Sir Edward Seymour,
Sir John Northcott, Sir William Courtnay,
Sir Thomas Carew, Sir Walter Young, and
other gentlemen of Devonshire, were appointed
to enquire into facts concerning
the miscarriage of former governors to
the damage of the trade; and the petitioners
were also required to prepare reasons
to make good the allegations of their
petitions. In consequence of which, depositions
were taken at Totness, in which
were certified the inconvenience of appointing
a governor, and the prejudice that
would necessarily thereby ensue to the
fishery.


However, on the 6th December following,
the company of merchants, adventurers,
and owners of ships, trading from
Bristol to Newfoundland, and several other
merchants, petitioned his Majesty to provide
a remedy to the dangerous condition
of the fishery (which, they said, was likely
to fall into the hands of the French), by[13]
sending some able person as governor, with
guns, arms, ammunition, and other materials,
necessary for fortifying some of the
harbours. This matter was referred by
his Majesty to the Earl of Anglesey, Lord
Ashley, Mr. Comptroller, Mr. Vice-Chamberlain,
and Sir William Coventry. These
persons entered into an examination of all
the papers, and also of sundry merchants
and other persons; but no resolution
appears to have been taken thereon till
1669, when a Captain Robert Robinson petitioned
for the settlement of a governor;
and, on a reference of this question to the
lords of the committee for trade and plantations,
their lordships reported, after hearing
several merchants and others concerned
in the trade, “that they did not think fit
to recommend the petition and proposal
of Mr. Robinson for making him governor
of Newfoundland; but, for keeping
people living there in Christianity,
they proposed that his Majesty should
send a chaplain in the convoy-ships;
and that the captains of the said ships should
have power to regulate abuses there, with
reference to his Majesty’s letters patent
granted to the western towns;” which[14]
report was confirmed in every thing by his
majesty on the 4th of February following.


On the 25th of the same month, complaint
was made, that many owners of ships
carried out passengers, and private boat-keepers,
contrary to the laws and constitutions
of the fishery, to the great detriment
of the fishing trade, and to the lessening
of the number of ships and seamen;
that many owners also victualled their ships
from Ireland, instead of England. Upon
which, an order of council was made, directing
that the mayors and magistrates of
the several towns mentioned in the above
letters patent, should be careful that the
constitutions were punctually observed;
that the officers of the customs should
charge all masters and owners of ships to
put those rules in execution; should stop
offenders therein from proceeding in their
voyage, and immediately return their
names to the council.


But, notwithstanding the objections
made by many to the appointment of a
governor, those very persons felt the need
of government and regulation: for on the[15]
23d of December 1670, a petition was presented
to his majesty, from the western
merchants and traders, “That additional
powers might be granted for regulating
the fishery.” The lords of the
council, appointed for matters of trade,
upon this occasion recommended several
rules; and his majesty ordered, that they
should be added to the former charter.
These were called additional rules, and
were as follows.


Additional
Rules.


That his majesty’s subjects might take
bait and fish at Newfoundland, provided
they submitted to the established orders.—That
no alien should take bait.—That
no planter should cut down any wood, or
should plant within six miles of the sea shore.—That
no inhabitant or planter should
take up the best stages before the arrival of
the fishermen.—That no master or owner
of any ship should transport seamen, or
fishermen to Newfoundland, unless they
belonged to his ship’s company.—That
none should carry more than sixty persons
for a hundred tons.—That every fifth man
should be a green man, that is, not a seaman.—That
the masters of ships should
provide victual in England, according to[16]
the number of men, for the whole voyage,
salt only excepted.—That no fishing
ship should part hence for Newfoundland,
before the month of March.—That masters
should give bond of a hundred pounds
to the respective mayors of the western
towns, not to carry to Newfoundland any
of the sort of persons before prohibited,
and to bring back such as they did carry
out, or employed in carrying fish for the
market voyages.—That no person should
take up a stage with less than twenty-five
men.—That no seaman or fisherman should
remain behind, after the fishing was ended.
It was ordered, that the admirals,
vice admirals, and rear admirals should
put these orders in execution, and preserve
the peace.—Should bring to England
offenders of any sort—Should proclaim
on the 20th of September, yearly,
his majesty’s orders.—Should keep journals.—It
was ordered that the recorders
and justices of the peace of the several
western towns, should be joined in
commission with the mayors.—That reasonable
fines should be imposed on offenders.


Finally, it was ordered, that a bill should[17]
be prepared to pass the great seal, for the
confirmation of the last charter, with these
additional powers; and that the clause
touching the marshal should be reviewed
by Mr. Attorney General, who should
present to the board some way of judicature,
for the determining of causes at Newfoundland.


In February 1674-5 the question of
appointing a governor was again brought
forward[1]. A petition had been presented,
in which was set forth the great advantage
that would attend the fishing
trade, by a settlement under a governor;
This was referred by the king to the
lords of the committee for trade and
plantations; and after hearing the reasons
of the merchants and owners of ships in
the west of England, who protested against
a settlement, together with what the petitioners[18]
could allege in behalf of a colony,
their lordships made report to his majesty,
of their opinion thereon.


Report against
a Governor in
1675.


In this report it is stated, that for some
late years, the fish had failed in Newfoundland;
that the adventurers had
lost many of their ships in the late wars,
especially in that with Spain; and that
the late wars had much diminished the
hands which used to take fish: that the
inhabitants and planters, who, contrary to
their old charter, lived within six miles
of the sea, had destroyed the woods, and
continued to destroy whatever the adventurers
left behind them; that they possessed
early the places of greatest convenience,
and, which was very pernicious,
most of them sold wine, and brandy,
whereby the seamen were withdrawn from
their labor, and many seduced to stay in
the place, while their families thereby
became burthensome to their respective
parishes at home. That the inhabitants
lived scattered in five-and-twenty
different harbors, almost eighty leagues
asunder; and that in all the winter, when
abuses were chiefly committed, there was
no passing from one place to another, so[19]
that near forty harbors would have no
government, though the governor were
actually in the country.


It is also stated, that besides the charge
of forts, and a governor, which the fish-trade
could not support, it was needless to
have any such defence against foreigners,
the coast being defended in winter by the
ice, and in summer by the resort of the
king’s subjects; so that unless there were
proper reasons for a colony, there could be
none for governor. That against a colony,
there were not only the rigours of the climate,
and infertility of the land, which
obliged those who were there all the winter,
to idleness, and inclined them to debauchery,
but this, that they chiefly consumed
the produce of New England, by the
shipping of which country, they were
furnished with French wine and brandy,
and Madeira wines, in exchange for their
fish, without depending, as they should,
for supply from England; so that if the
climate and soil should favour a colony,
the planters would rather adhere to New
England, and so go on to tread in the same
steps as those colonists did, to the loss of
the many advantages which, by the present[20]
method of things, are yet enjoyed by
the mother country; there being no hope
for a like regulation on the product of this
place as on the products of the other
plantations, because fish cannot bear the
charge of coming home, but must go directly
to the markets abroad.


It was reported that the French did not
manage their fishery otherwise, than by
adventurers’ ships, that went out, and returned
back yearly. That they maintained
a fort at Placentia to defend them from
the Indians, who, at certain times, came
off from the main, and molested them in
their beaver-trade; for which trade, and
not for fishing, the French had a residence
there.


It was reported, that the adventurers
caught fish cheaper than the planters.


Upon full consideration of all these circumstances,
their Lordships proposed,
that all plantations in Newfoundland should
be discouraged; and, in order thereunto,
that the commander of the convoy should
have commission to declare to all the planters,
to come voluntarily away; or else[21]
that the western charter should, from time
to time, be put in execution; by which
charter all planters were forbid to inhabit
within six miles of the shore, from Cape
Race, to Cape Bonavista. Their Lordships
further proposed, that the additional
rules, settled on the 10th of March, 1670,
should be observed, and that the mayors
of the western ports should be required to
renew their charter accordingly.


This report, from the Lords of the
committee of council for trade and plantations
was approved by his majesty, and
order was thereupon given for carrying
into effectual execution, what was there
recommended.


In viewing these transactions we plainly
discover the two contending interests in
the Newfoundland trade; the one that of
the planters and inhabitants, the other
that of the adventurers and merchants;
and we shall see, in the course of this
history, that according to the views of
these different description of persons, representations
were at various times made
to the government at home, for promoting[22]
or opposing regulations and establishments
in the island.


Sir John Berry’s
Advice.


An occasion soon offered for shewing this
spirit. Sir John Berry was appointed
to command the convoy for the ships
trading to Newfoundland; and in pursuance
of a special order of council of the
15th of April 1675, this commander laid
before the committee of council for trade
the state of Newfoundland, as he found
it, in relation as well to the planters and
inhabitants, as to the western adventurers;
and it is worth remarking how different is
the account given by this commander,
from that lately made by the adventurers,
and which had induced the committee of
council to report in the terms we have just
heard.


He says, that several disorders, attributed
to the planters, were chiefly occasioned
by the adventurers’ ships—That
the inhabitants never sold their fish to
those of New England for wine and brandy.—That
the adventurers’ men pulled down
the stages, and store-houses:—And, that
it was their fault, that the seamen were seduced[23]
to stay in the country, for it was to
save thirty shillings for their passages.


This letter was read at the committee
in the presence of several persons, who appeared
there in behalf of the west country
merchants, and who complained of the
encouragement Sir John Berry had given
the planters, contrary to his majesty’s orders,
and to the certain ruin of the adventurers’
trade, for such would follow from
the continuance of the inhabitants and
bye boat-keepers. Upon which the Lords
advised them to settle the additional rules,
allowed by his majesty; and this, some
time after, was accordingly put in execution.


Sir John Berry, at his return, attended
the committee, where he repeated and
confirmed what he had written, and assured
their Lordships of the necessity
of encouraging a colony in Newfoundland,
if not, the French would take
advantage by the intended removal,
to make themselves masters of all the
harbours and fishing places about the
island, or would otherwise entice the English
planters to come and settle among[24]
them, to the great prejudice of our
fishery.


The struggle between the adventurers
and planters now grew very violent. In
1676, John Downing, an inhabitant of
Newfoundland, petitioned the king against
the endeavours of the adventurers to pull
down the houses, and burn the stages of
the planters, in order to drive them out of
the country. This complaint was referred
to the committee of trade, where counsel
were heard in behalf both of the adventurers
and planters; and the committee
having reported their opinion thereon, the
king signified his pleasure, that the masters
and seamen belonging to the fishing
ships should not any ways molest the
planters, upon pretence of a clause in the
western charter, whereby, “No person
was to inhabit within six miles of the
shore,” until his majesty should proceed
to a further resolution concerning
the fishery and plantation of Newfoundland.
Direction was accordingly
given, by order from his majesty, to the
captains of the convoy ships, to make
publication of his majesty’s pleasure, that
the planters should be permitted to continue[25]
in the possession of their houses and
stages, according to the usage of the last
years, until further order. Moreover,
that the state of the colony and trade
might be better known, they were ordered
to return answers to several heads of inquiry
prepared by the committee for trade
and plantations; and the following are the
answers thereto sent by Sir William Pool
from St. John’s harbour, dated the 10th
of September 1677.


He says, the fishermen confessed, that
of late years the planters had done no prejudice
to the fishery; so that, when they
returned, they found their stages in as
good order as could be after a winter; so
that they were not obliged to come sooner
to the island for the purpose of repairing
them—the planters affirmed, they did not
meddle with any of the adventurers’ fishing
places, nor did they desire to do it,
provided they might quietly enjoy the
same room they had possessed for several
years—the fishermen complained, that the
planters took up the best places to cure
their fish, did damage to their stages, and
took possession of more than they had
hands to manage—the planters affirmed,[26]
that it was impossible to live six miles
from the sea-side, by reason of the barrenness
of the country—the fishermen did not
desire the removal of the planters, but only
a better regulation—the planters could not
keep a constant number of men or boats,
unless they were supplied every year with
servants from England—the planters did
not take so much fish, proportionably to the
number of men and boats they kept, as the
fishers did, who were better artists; nor sell
it so cheap, by reason of the greater wages
they were obliged to give their servants—it
was not possible for the planters to observe
the charter punctually—the planters
all sold drink contrary to their charter—the
fishermen rinded the trees, and employed
six and seven stages for seventy men,
contrary to the rule of their charter—the
French managed their fishery generally by
fish-ships from Europe, and their trade for
fur was very inconsiderable—the French
planters were very much encouraged by
the governor, and had the same accommodation
in their harbours as the fishermen
had—the fishermen confessed the planters
were of great use to them—the planters
prepared materials for the fishermen against
their coming, which otherwise could not[27]
be made ready without a great loss of time;
they preserved in their houses the salt
that remained of the fishery until the next
season; and when shipping was wanting,
the fishermen were glad to lodge their fish
in a planter’s house until the following
year—in case the fishermen were visited
with sickness, or were obliged to stay for
their ships on their first arrival, they used
the convenience of the planters’ houses—when
the fishermen wanted provisions, the
planters supplied them out of their stores;
or when they had an overplus, the planters
bought it of them for fish.


Such were the answers given by the
commander of the king’s ships on this
station to the first heads of enquiry concerning
the trade and fishery. This method
of enquiry was followed in after
times; and the information it produced,
in this first attempt, may be made useful
matter of comparison.


In December 1677, the committee for
trade and plantations, in pursuance of an
order of council, that had been made on
the petition of the western adventurers,
made report, that notwithstanding a clause[28]
in the western charter, forbidding the
transportation of any persons to Newfoundland,
than such as were of the ships’
company, the magistrates of the several
western ports did permit passengers, and
private boat-keepers, to transport themselves
thither, to the detriment of the fishery;
but they were of opinion this might, for
the future, be prevented, if not only those
magistrates, but the vice-admirals and
officers of the customs, were strictly commanded
to prevent this abuse.


Bye Boat-keepers,
what.


The private boat-keepers here spoken
of, or bye boat-keepers, as they otherwise
were called, are described as persons who,
not being willing or able to buy a share in
a fishing ship, hired servants in the west of
England, and carried them as passengers
to Newfoundland, where they employed
them in private boats to catch and cure
fish; and after the season was over, they
brought them back to England, or permitted
them to take service with the planters,
or on board the ships. These bye
boat-keepers used to go over yearly in great
numbers; but this practice being contrary to
the western charter, and the king’s express[29]
command, begun now to be much disused.


Question of a
Colony argued.


The above-mentioned representation
against the bye boat-keepers was soon
followed by a petition in behalf of the
inhabitants of Newfoundland, praying generally,
that nothing might be ordered to
their prejudice. To bring this matter
into full discussion, it was ordered by
the king, that both the adventurers and
planters should be heard by their counsel.
And thus was the question of the convenience
and inconvenience of a colony solemnly
argued at the council. After which
it was referred to the committee for trade,
to propose some regulation between the
adventurers and planters, which might
consist with the preservation of the interest
of the crown, and the encouragement of
navigation and the fishing trade[2].


It does not appear what report was
upon this occasion made by the committee
for trade; and I find no other
proceedings of the government respecting
this trade and fishery till after the year 1696,[30]
when the board of trade was instituted.—In
January 1697, the new board took up
this among other subjects that came within
their cognizance; but not before they
were called upon by petitions and representations
from the towns in the west
concerned in this trade. These, like former
petitions and representations from the
adventurers and fishers, were calculated to
advance their pretensions, in opposition to
those of the planters and inhabitants, to
deprecate the appointment of a governor,
and to pray a convoy for the safety of the
ships going out, either to Portugal for
salt, or to Newfoundland, and to protect
them in their return home, or in their
voyage to market[3]. The report and
representation made by the board on
this occasion applied rather to the present
defence of the place than to any matter of
general regulation; and they at the same
time expressed an opinion, that planters,
in a moderate number, were at all times
convenient for the preparation and preservation
of boats, stages, and other things
necessary for the fishery; but that they
should not exceed one thousand[4].


[31]


In the year 1698 was passed the stat. 10
and 11 Will. 3. c. 25. intituled, An Act
to encourage the trade to Newfoundland. It
does not appear what were the steps that
immediately led to the passing of the act;
but it appears, in the matter of it, to be
founded on the policy of former times; and
it is, in truth, little more than an enactment
of the rules, regulations, and constitution
that had mostly prevailed there for
some time.




[32]


PART II.


PART II.
From Stat. 10 &
11 Will. 3, to
A. D. 1728.




Mr. Larkin’s Observations—Character of the
fishing Admirals—Character of the Commanders—Want
of Police—Opinion of the
Board 1706—Representation 1708—For
Sea Commanders to command at Land—Such
Commission issues—Laws and Orders made
at Newfoundland—Representation 1718—Claim
of the Guipuscoans to fish—Of the
Lands ceded by the French—A Salmon
Fishery granted—Opinion on the 7th Sec.
of Stat. 10 and 11 Will. 3.—Representation
1728—Recommends a civil Government—A
civil Governor is appointed—Disorders
of Newfoundland, and Conduct of the fishing
Admirals during this Period—Complaints
from the Merchants.




It has ever been the disposition of the
principal merchants in the west of England
to extol the provisions of stat. 10 and
11 Will. 3. as the soundest policy that
could be pursued in relation to the fishery.
We know, after perusal of the former part[33]
of this historical enquiry, that there was
always an opposition and jealousy subsisting
between the merchants and adventurers
on the one hand, and the planters and inhabitants
on the other; and the utmost credit
we can give to the former, on this subject,
is to believe, that this statute fully established
their claims and pretensions, and
gave them an ascendancy over the latter;
and that they now saw sanctioned by parliament,
what before depended upon a
tenure of less validity. So far, and no
farther, can this eulogy have a meaning;
for as a scheme of regulation, that was to be
generally beneficial, this act was, in the first
place, no novelty; in the second place
it seems never, from the very beginning,
to have been completely executed; and
thirdly, it gave power and jurisdiction to
hands that were unfit to exercise it: and I
shall presently shew, that those concede
too much, who allow this act might have
been a very good regulation at the time it
passed; for it will appear from the best
authority, that, at the very time it was
passed, it was in no way of being carried
into execution as the parliament intended.


[34]


To the heads of inquiry, which were delivered
and given in charge to the commodore,
who commanded the ships on
that station, this act, and all the particulars
of it, were now added; and there appear
in the returns made thereto every year,
their observations and opinion, both upon
the act and its execution. Upon such a
subject there cannot be adduced better
authority than this. In the answers given
to these heads of inquiry, and in the correspondence
of the commodores, may be
traced, from time to time, the actual state
of the fishery; and it will be curious to
bring together the information that may
be collected from these sources. Among
the earliest information of this sort, I find
a letter from Mr. George Larkin, written
from St. John’s in the year 1701. This
was recently after the passing of the act;
and the writer goes more fully into
many points of the trade, than the officers
of government usually did. These
circumstances make this a valuable
paper; and it becomes much more so,
when it is considered, that Mr. Larkin
was a gentleman bred to the civil law,
who was sent out to make observations
in the American settlements, for the information
of government at home, as[35]
to the state of the Plantations, and the
execution of the laws of trade and navigation.


Mr. Larkin’s
Observations in
1701.


He begins by saying, that the rules and
orders of this act were not so much regarded
as he could wish, which he ascribes
to there being no penalties in it. The trees
were rinded, and the woods destroyed, as
much as before passing the act; and in a
few years, he thought there would not be
a stick left fit for the use of the fishery within
five or six miles of that, or other harbours.
The flakes that were left standing, were
most of them made use of by the inhabitants
for firing in the winter.


He says, the then admiral of the harbour
of St. John’s, Captain Arthur Holdsworth,
of Dartmouth, brought over from
England, that fishing season, two hundred
and thirty-six passengers, all or great part
of which were bye boat-keepers, and they
were brought, under a pretence of being
freighters aboard his ship, though it was
only for some few provisions for their necessary
use. These persons he had put and
continued in the most convenient stages, &c.
in the harbour, which all along, since the
year 1685, had belonged to fishing ships;[36]
in so much, that several masters of fishing
ships had been obliged to hire rooms of
the planters. These bye boat-keepers
were most of them, he says, able fishermen,
and there was not one fresh man, or
green man, amongst them, as the act requires.
He says, that this person, and
one or two more, who constantly used the
fishery, made it their business in the beginning
of the year, to ride from one market
town to another in the west of England,
on purpose to get passengers; with whom
they made an agreement, that in case they
should happen to be admirals of any of
the harbours, they would put and continue
Mr. Holdsworth, and such persons, in
fishing ships’ rooms. This, he says, was
a very great abuse and discouragement
to the adventurers: besides, these
bye boat-keepers could afford to sell
their fish cheaper than the adventurers,
which must lessen the number of fishing
ships.


There was great complaint of the New
England-men, who for seven or eight
years, he says, had resorted to Newfoundland.
They had also their agents in most
of the harbours, and drove an indirect[37]
trade, supplying several commodities to the
planters, which they ought to take from
England. Such New England vessels generally
made two or three trips in a year,
with bread, flour, pork, tobacco, molasses,
sugar, lime-juice, and rum. They sold
cheaper in general, but obliged their purchasers
to take certain quantities of rum.
This the inhabitants sold to the fishermen,
and so encouraged them to stay behind,
and leave their families in England a burthen
on the parish. The inhabitants also
sold rum to their servants, who run in debt,
and were forced to hire themselves in payment
of their debt; so that one month’s
profuse living, and a pair of shoes, often
left them in bondage for a year; and
good fishermen, who deserved fifteen or
twenty pounds per annum, were thus made
to serve for seven pounds. He says, the
New Englanders, at the close of the year,
used to inveigle away a great many seamen
and servants, with promises of great wages;
but these men were often disappointed,
and turned robbers and pirates. The
New England vessels were said, the last year,
to have taken away five hundred men in
this manner, in Conception Bay only; many
of these were headed up in casks to prevent[38]
discovery. He recommends, for preventing
this practice, that the masters of New
England vessels should give bond, when
they cleared out, not to bring men from
Newfoundland without leave from the
commodore.


We find, in after times, the captains of
the king’s ships used to oblige every New
England master of a ship to give such bond,
in a penalty of five hundred pounds, with
two sureties in two hundred and fifty
pounds each, not to carry any persons out
of the island.


As to the fishery, he did not hear of
more than one New England vessel fishing
on the coast. Indeed it appears, that
their fishery was all carried on upon their
own coast, where they had better fish, and
that they looked to Newfoundland for nothing
but the sort of traffic above-mentioned.


He informs us, that the inhabitants and
planters of Newfoundland were poor, indigent,
and withall a profuse sort of
people, that cared not at what rates they
got into debt, nor what obligations they[39]
gave, so they could have credit. But the
seizing of their fish for debt, seemed to this
gentleman to be both irregular and unjust,
as to the time and manner of doing it;
for the fishermen seeing the flakes stript
before the fishing season was half over, were
discouraged from proceeding any further;
which often proved the ruin and overthrow
of several planters’ voyages.


Debts used not to be paid till the
20th of August; but, for two and three
years, he says, the flakes had been stript
by night, and the fish carried off in June
and July, without weighing. A second
had come, and taken it from the first—the
planter had had twenty or thirty quintals
of fish spoiled in the scuffle, and the rest
of his creditors were forced to go without
any satisfaction. The poor fishermen,
who helpt to take the fish, had, on these
occasions, gone without one penny of
wages—salt provisions and craft being always
payable before wages; and he expresses
astonishment, how the planters and
inhabitants could procure hands from England
to fish for them, considering how ill
they used them.


[40]


Character of the
fishing admirals.


Where complaints of this sort had been
made to the commander in chief, he had
ordered them to re-deliver the fish, and a
dividend to be made. But there being
five or six and twenty different harbours,
besides coves, and it being a great distance
from Bonavista and Fermose, to St.
John’s to make complaints, the commander
could do little; and the admirals, he
says, did not concern themselves at all,
but left all to the commander. These
admirals, says he, ought to see to the preservation
of the peace and good government
among the seamen and fishermen,
that the order and regulation of the fishery
be put in execution; and they should keep
journals: but instead of this, they were
the first to break these orders, and there
was not one of them, where he had been,
who had kept any journal at all.


He observes, that the late act of king
William gave the planters a title, and it
was a pity but that they had some laws
and rules by which they should be governed;
though, he says, it was the opinion of
all, since he had come there, that it had
been better, if all plantations had been
discouraged, for the island was then become[41]
a sanctuary and place of refuge for
all people that broke in England. Besides,
the masters of the fishing ships encouraged
several of their men to stay behind,
persuading them they would soon
get estates there; and this they did merely
to save the charge of their passage back
to England.


Character of the
Commanders.


It had been customary for the commander
in chief, upon complaints made,
to send his lieutenants to the several harbours
and coves, to decide all differences
and disputes that happened between masters
of merchant ships and the inhabitants,
and between them and their servants;
this gentleman declares it a shame to
hear how matters had been transacted
upon such occasions. He that made a
present of the most quintals of fish, was
sure to have the determination in his favour.
He says, the whole country exclaimed
against the lieutenants in Captain
Poulton and Captain Fairbourne’s time; and
did not scruple to declare, that some former
commanders in chief had been a little
faulty. He says, the then commander,
Captain Graydon, had taken much pains to
do the country justice, and to settle religion[42]
amongst them, and people seemed
well satisfied with him. He says, there
had never been any registry kept of the
orders or rules that had been made for the
good of the fishery. What one commander
in chief had established, another
had vacated; he says, he had prevailed
with the present commander to leave an
abstract of all such as had been made during
his time.


Want of Police.


He says, that quarrels and disputes happened
after the fishing season was over; and
in the rigour of the winter season, masters
beat servants, and servants their masters.
He therefore recommends, that one of the
most substantial inhabitants should be appointed
in every harbour in the nature
of a justice, for preservation of the peace,
and tranquillity among them; and that
some one, who understood the law, should
be sent with the commander in chief, or
should reside there, as should be thought
most convenient, in the nature of a judge
advocate, to decide all differences, and
matters of meum and tuum between masters
of ships, inhabitants, planters, and
servants; that this person should have
power to administer an oath to parties, or[43]
witnesses, for determination thereof in the
most summary way, and that he should
be obliged to go every year to the following
places; viz. Bonavista, Trinity, New
Perlican, Old Perlican, Carboneer, St. John’s,
Bay of Bulls, and Ferryland, and to stay a
fortnight or three weeks at each of them.
He adds, that such a person would be useful
there for several purposes, and among
others, that a true account might be had
from him, how all matters were transacted
at Newfoundland[5].


The picture here given of Newfoundland
is hardly heightened, or varied by
any colouring to be found in the representations
made by successive commanders.
They are usually in the same strain. The
grievances and complaints, the remedies
and expedients are uniformly the same;
and it is a remarkable circumstance in the
history of this trade, that many of the papers
relating to it, whether coming from
the commanders, or from the merchants
and adventurers, in the times of king William
and Queen Anne, would apply to[44]
later times, as well as to those in which
they originated.


The heads of enquiry given in charge to
the commanders, and the answers returned
by them thereto, would furnish a history
of the fishery. These heads soon encreased
from twenty or thirty, to sixty or seventy.
It is not my intention to go over all these,
or to pursue every point that has arisen,
at various periods, with relation to this
fishery and trade; but principally to trace
the progress made in affording that island
some sort of constitution; and the settling
of this, like the settling of all other constitutions,
will involve in it the parties,
and different interests that have, and still
continue to prevail amongst the individuals
concerned in the trade, both here and
in Newfoundland.


In the answers made by Captain Graydon,
the commander, at this time, we
find, that a survey was made that year of
all the encroachments made by the inhabitants
upon the liberties of fishing ships, since
the year 1685, and they were all corrected,
as appears from him.—That the admirals
of the harbours were the persons, who[45]
mostly brought bye boat-keepers, and
put them in possession of ship’s rooms, under
notion of their being freighters (as
was before alledged) the admirals advancing
them money in England at five
shillings in the pound.—The admirals did
not observe the rules prescribed in the act
of parliament, but on the contrary, when
they wheedled a poor planter into debt,
they took his fish by force from him,
and would even break open his house
to get it. As to the admirals keeping
journals, accounts, &c. he found but
four of them capable of doing it.—The
admirals, before the 20th of August,
used to hear some complaints, but after
that, none were made to them, they being
generally the greatest aggressors themselves.


Such are the observations made upon
those points, that are more particularly
for our consideration at present. We shall
find, as we go on, how uniform were the
complaints of abuses, and irregularities
in the police and government of the
island.


Opinion of the
Board 106.


In the year 1702, the war with France[46]
broke out, and our fishery and concerns
there were greatly disturbed by the French.
During this, the questions agitated at the
board of trade mostly concerned the defence
of the island by sea and land. Notwithstanding
this state of war, an order
was made by the House of Commons, the
16th of January 1705-6, for laying before
the house a state of the trade, and fishery;
a state was for this purpose drawn up by
the board; in this they give their opinion
upon the different abuses and grievances;
and, amongst other things, recommend
that power should be given by parliament
to the commanders of the queen’s ships,
and to the admirals, to inflict fines and
penalties on the breaches of Stat. 10 & 11
Will. 3, c. 25. they recommend also, that
the commanders of the queen’s ships should
have the power of custom-house officers to
search ships from New England[6]—In the
same year they recommended to her majesty,
that the mayors of the towns in the west,
should be written to, requiring them to
enjoin the masters of ships, who might become
admirals, to keep journals, and discharge[47]
the other duties required of them
by Stat. 10 & 11 Will. 3, c. 25[7].


The board were called upon again the
next year by the House of Commons for
a state of the trade[8], which was accordingly
furnished, and in this statement
the same abuses were recounted and the
same remedies were suggested for their
correction.


On the 31 of March 1708, the House
of Commons addressed her majesty, beseeching
her to give directions, that the
laws relating to the trade and fishery of
Newfoundland might be effectually put
in execution against such commanders of
her majesty’s ships of war, or forts, or
fortifications there, as should presume to
exact, demand, or receive sums of money,
or other rewards from any of the
queen’s subjects, in their voyages, trade,
or fishery to, from, or at Newfoundland:
And that such commanders and officers
should be strictly forbidden to keep, use,
or employ any fishing boats for their
own private use or advantage: further,[48]
that the laws relating to the fishery should
be duly executed[9]. This address was
occasioned by some complaints made
against a Major Lloyd, who commanded
the troops at St. John’s; but of
this gentleman’s conduct there were different
accounts; the most unfavourable
seem to have prevailed with the House
of Commons to come to this resolution.


This call for a due execution of the
laws relating to the fishery, again drew
the attention of the board of trade to the
Stat. 10 & 11 Will. 3, c. 25. and the defect,
so often complained of in that act,
“not having any penalties specially annexed
to the breach of it.” And on a
question proposed by the board to Mr.
Montagu, then solicitor general, he declared
it to be clear, that although no particular
penalty was mentioned in an act of
parliament, requiring or prohibiting any
thing, yet any offender against such act
may be fined at the discretion of the
court, when found guilty on an indictment
or information[10].


Representation
1708. For the sea commanders
to
command at
land.


The board then proceeded to make a[49]
representation to her majesty on the occasion
of the before-mentioned address;
in which they say, that no complaint had
ever come to them of exactions, or demands
made by commanders of the queen’s
ships; and if there were, the offender
should be prosecuted on Stat. 15 Car. 2.
c. 16. That the charge against Major
Lloyd, for letting out the soldiers to
work in the fishery, was under examination
at the board. But that for preventing
any misconduct of officers with
relation to the fishery and trade in future,
they recommended, that the commodore,
during his stay there, should have the
command at land, as he used to have
from the first sending out of a garrison,
till within the last three years, when that
practice was discontinued. They thought
this would contribute better to support
good order and peace, in a place where
no regular civil government was established;
and that it would enable him to
superintend the queen’s stores, and to
make better returns of the state of the
trade and fishery. As to the execution
of the act in general, they stated the abuses
and irregularity subsisting in the island;
the ignorance and partiality of the fishing[50]
admirals; and they recommended that
the commodore should be impowered to
redress and punish all offences, and abuses
committed at Newfoundland against Stat.
10 & 11 Will. 3, c. 25.; as to those which
he could not redress, they recommended he
should inform himself whether the provisions
of the act were duly complied with,
and who were the offenders against them,
in order that they might be proceeded
against in this kingdom. They submitted
whether it would not be proper to
issue a royal proclamation for better observation
of this law[11].


Such commission
issues.


This representation was approved by
the queen, and an order of council was
made on the 20th of May 1708, directing
a proclamation of the sort therein recommended,
to issue; and also a commission
to be prepared annually by the Lords
Commissioners for trade and plantations,
for the commodore of the Newfoundland
convoys, to command at land, during his
stay in those parts, with such further instructions
for putting in execution that act
of parliament, as were set forth in the representation;[51]
the Lords were also directed
to prepare a letter to Major Lloyd, disapproving
his proceedings, and requiring
him to yield due obedience to the commodore’s
commission: all which was accordingly
carried into execution[12]. Instructions
were delivered to the commodore
for executing this commission to
command at land; and in one of those he
was directed to send answers to the heads
of enquiry, which had long been in use, relating
to the trade and fishery, and which
were always prepared by the board of
trade, and afterward given in charge to
the commander by the lord high Admiral.


This change in the command at Newfoundland
set the lords of trade upon
an enquiry after the commission (before
noticed) given in 1615 to Captain
Whiteburn out of the court of admiralty
for impanelling juries[13]. It seems
also, that it was in agitation for the
commissioners of the customs to appoint
an officer for preventing illicit trade
in Newfoundland. The lords of trade
were informed from the custom-house,[52]
that when a court of admiralty should be
erected, and a person appointed to hear
and determine causes on informations of
seisures, a revenue officer should have his
commission and instructions.


But the French had got so strong, and
had so disturbed our possessions in the island,
that every thing gave way to plans of immediate
and necessary defence. Through
the year 1710, the merchants were
making representations to the board of
trade, beseeching, that in any treaty of
peace with the French, Newfoundland
might be reserved wholly to the English.
This idea was adopted by the board, and
they appear to have pressed it strongly with
her Majesty’s ministers[14].


Laws and orders
made at
Newfoundland.


In the year 1711, I find, what is called,
a record of several laws and orders made at
St. John’s for the better discipline and good
order of the people, and for correcting irregularities
committed contrary to good laws, and
acts of parliaments, all which were debated
at several courts held, wherein were present
the commanders of merchants’ ships, merchants,[53]
and chief inhabitants; and witnesses being
examined, it was brought to the following
conclusion between the 23d day of August and
23d day of October 1711. Then follow
fifteen articles of regulation[15], that must
have been very useful; and it is worth
considering whether such a local legislature,
which the people seem in this instance
to have created for themselves,
might not legally be lodged somewhere,
for making bye-laws and regulations, as
occasion should require. The commander
Captain Crowe, presided at this voluntary
assembly. His successor, it seems, followed
his example, and held a meeting
of the same sort. These assemblies were
somewhat anomalous, a kind of legislative,
judicial, and executive, all blended
together[16]; and yet perhaps not more
mixed than the proceedings of parliaments
in Europe, in very early times.


At the peace of Utrecht we were put into
possession of Newfoundland in a way we
had not enjoyed it before, for some years.
Placentia, and all the parts occupied by the
French, were now ceded to the king of Great[54]
Britain, in full sovereignty; the French
retaining nothing more than a licence to
come and go during the fishing season. A
new prospect now opened; and the government,
not less than the merchants, turned
their thoughts to that trade with a spirit
that promised itself all the fruits of
this new acquisition. A Captain Taverner was
employed to survey the island, its harbours,
and bays; a lieutenant-governor
was appointed to command the fort at
Placentia; the merchants beseeched the
board of trade that the French might be
strictly watched, and kept to their limits,
and that a ship should go round the island,
to see they left the different harbours at
the close of the season.


Captain Taverner, who had great experience
in that trade, and was much attended
to at this time, gave in to the board
some remarks on the Newfoundland fishery
and trade; and also heads of a proposed
act of parliament[17]. It appears from the
observations made by this gentleman, as
well as many others, that nothing was
more strongly expressed by all persons,[55]
who shewed any anxiety, or experience on
this subject, than the inefficiency of Stat.
10 & 11 Will. 3, and the necessity of going
to parliament for new regulations.


It had become a doubt, whether that
part of the island, lately ceded by the
French, was subject to the provisions of
Stat. 10 & 11 Will. 3. This point was
brought forward, in consequence of the
lieutenant-governor of the garrison at Placentia,
and some of the French planters
having, on leaving the place, disposed of
their plantations for money, and, in this
manner, attempted to convey a right and
property, which was not recognised by the
general usage of the island, as confirmed
by that statute. This matter was brought
before the board of trade, and their lordships
were of opinion, that Stat. 10 & 11
Will. 3. extended to the ceded lands, and
that all the beaches, and plantations there,
ought to be left to the public use, and
be disposed of, as directed by that act[18].
Instructions to that effect were accordingly
given to the lieutenant-governor of
Placentia[19].


[56]


Among the proposals and suggestions
for improving the trade of Newfoundland,
some papers from Mr. Campbell, in the
year 1714 are deserving of notice[20].


The Newfoundland trade was taken up
by the government in the year 1715, as
an object of important consideration.
Captain Kempthorn, then on that station,
was specially charged to make enquiry,
and report every information he could acquire;
and I find a very long letter written
by him to the secretary of the admiralty,
and transmitted from thence to the
board of trade. This letter is very full,
and was submitted by the board to the
king’s government, as containing suggestions
highly deserving consideration[21].
The board were now satisfied that some
new regulation ought to be made by parliament;
and preparatory thereto, they resolved
to write to the towns in the west,
concerned in this trade, desiring them to
furnish such information as they possessed
upon a subject where they had so much
experience[22]. They also laid a case before[57]
the attorney general, Sir Edward Northey,
for his opinion on the defects of Stat. 10 &
11 Will. 3. and he was of opinion, that it
would be necessary, in order to oblige the
observation of the rules contained in that
statute, for a new act to be passed, inflicting
penalties for not observing the same,
and directing how and where such penalties
should be paid; and he thought that
a proclamation, requiring the observance
of those rules (as was before proposed)
would have no effect[23]. On this occasion.
Mr. Taverner suggested his remarks, and
gave a sketch of a bill[24]. After the board
had derived the information that was to
be obtained from the different sources,
where they had applied, they drew up a
long representation to his majesty, dated the
2d of March 1715-6 containing their opinion
upon the abuses, suggesting the
remedies that would be proper to be applied[25],
and recommending that a bill
should be proposed to parliament for
giving effect to the suggestions there
made.


[58]


Representation
1718.


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[26].
This representation, and the heads
of the bill, have been lately laid before the
house of commons, and are now printed
by their order.


Claim of the
Guipuscoans to
fish.


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[59]
they say, that by the fifteenth article of
the treaty of Utrecht, the Guipuscoans 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[27].
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.


Of the Lands
ceded by the
French.


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[60]
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[61]
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 confederation
in money, or otherwise, for their
lands or houses[28]. 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 pretension to fish at Newfoundland, of
right. All these together constituted a[62]
source of great discontent, and so continued
for several years[29].


A Salmon Fishery
granted.


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[30].
The board accordingly recommended to his
majesty, that a term of 21 years, in a sole
fishery for salmon, in Fresh-water 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[31].


In the close of the year 1728, we find the[63]
board of trade once more took up the
subject of this trade and fishery, in consequence
of the representations made by
Lord Vere Beauclerck, 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.


Opinion on Sec.
7, of Stat. 10
and 11 Will 3.


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:—1st.
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[64]
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[32].


[65]


Representation
1728.


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 any
thing 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. 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.”


[66]


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.


Recommends
civil government.


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,[67]
that considering the lieutenant governor
of Placentia thought himself accountable
to no one but the king, a nearer
controul 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[68]
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 clergyman, whose salary
might be put on the establishment of the
garrison at Placentia[33].


This representation of the lords of trade
was taken into consideration at the committee
of council. The committee referred to[69]
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 separate
the government of Placentia from that
of Nova Scotia.


The committee made another order the
19 of April 1729, in which they recommended[70]
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[71]
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.


A civil governor
is appointed.


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.


The commission given to Captain Osborn
begins by revoking so much of the
commission to the governor of Nova Scotia,[72]
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 any thing 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 Beauclerck.


[73]


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
Beauclerck 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 finery, 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 Beauclerck,
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,
Ferryland, 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[74]
set sail for Newfoundland[34], 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[35]. 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[75]
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.


The documents I shall produce will
be extracts from the correspondence and
communications made by the commodores
and commanders on the Newfoundland
station, to the board of trade. In
these it will be seen, what was the nature
of the disorders and irregularities committed
in the island; and it will appear
how very inadequate was the authority
and jurisprudence conferred by the statute
of King William, and how ill the
authority and jurisdiction so given, was
administered.


Disorders in
Newfoundland,
and conduct of
the fishing admirals
during this
period.


One of the correspondents writes in this
manner.—“The admirals which are appointed
by the Newfoundland act, to decide
differences, in relation to fishing-rooms,
&c. have entirely neglected it in
all its parts. Indeed, at their first arrival,
they claim their prerogative, as by the
said act, as far as it suits with their own
interest and no further; except a particular[76]
friend of theirs should arrive with a
fishing ship; in such case should the ships
fishing rooms of that harbour be taken up
before he arrives, they often remove some
planter or other for him, pretending that
the planter’s title is not good to the room
he possesses, when the commanders of men
of war, some years before, adjudged it to
be the said planter’s right.”


“These things are often done, and several
of the inhabitants’ fishing voyages
ruined thereby. It is common, that what is
done one year, in relation to fishing rooms,
is contradicted the next; so that the fishing-rooms,
are not settled to this very day.
Many times these admirals never were in
the land before, nor knew any thing of
the matter; in which case some old west
country master commonly takes care that
the said admiral do nothing but what he
pleases.—Those are the patrons that are
commonly called kings in that country,
who sacrifice other people’s interest frequently
to serve their own. The admirals
are some of the first men to cut down
the roofs of their stages, cook-rooms, and
flakes, which paves the way for the inhabitants
to follow their example, who in[77]
the winter season generally carry away all
the remainder. It is certain the admirals
are seldom or never at leisure to hear any
complaints whatsoever, except one of
their favourites is the plaintiff[36].”


“The masters of ships in Newfoundland
generally endeavour to force their goods
upon the inhabitants, especially the poorer
sort, who generally pay dearest. Say they,
if he makes a good voyage, we shall be
all paid; and if he does not (says every
one to himself) I will be quick enough to
get my payment. By this means they have
a jealous eye, the one over the other. If
the fishing does not prove so good as was
expected, some of these matters will fall
upon them, before the fishing season is
half over, take away their fish before half
made; another comes and takes away his
train; and many times there comes a third,
who has more men than they, and takes
it away from the former; he that has most
men is sure to have the greatest share.
This is a common practice in Newfoundland.
They never acquaint the admirals
with this proceeding before they do it;[78]
neither do the admirals trouble themselves
with it afterwards. But the consequence
lies here; the planters’ men will catch no
more fish, because they have no hopes of
getting any wages; the planter is ruined,
and all the rest of the creditors unpaid;
who, if they had given him the liberty to
make his fishing-voyage, might have paid
them all. The merchants of England have
suffered exceedingly by this unparalleled
thing, there being no precedent for it in the
whole Christian world. I am fully satisfied
that by this thing, and the multiplicity
of liquors imported into Newfoundland
yearly, the trade thereof has suffered more,
than by the French plundering it so often
in the late wars.”


“It is most certain that the admirals in
Newfoundland have never taken any care
about the good of that trade; and their
reasons generally given for it are, that
they come to Newfoundland to mind
their owner’s business; and as nothing was
allowed them for defraying the charges of
keeping courts, they could not do it[37].”


[79]


Another writes thus.—“But what I would
more particularly represent to their lordships,
is the clandestine and illegal commerce
carried on between the New England
men, and several of the British masters,
especially the fishing admirals; who after
they have, according to the act, qualified
themselves in England for fishing ships,
depart for France, Spain, or Portugal,
where they freight with wines and brandies;
which early in the year they carry
directly to Newfoundland; and either dispose
of to the planters, or barter with the
New England-men for the produce of the
plantations. By these means Newfoundland
is not only supplied with these foreign
European commodities, but it is become a
mart, from whence other American plantations
are (in fraud of his majesty’s duties)
in a good measure furnished.”


“As the admirals are chiefly concerned
in this unfair trade, so their tyranny and
oppression in the harbours, where there
are none of his majesty’s ships, is not to
be reckoned amongst the least causes of
the decay of the fishery; those who labor
in it, having learnt by experience, that the
rule of their decision is their private interest,[80]
and that fishermen are not to expect
any justice from them. This contributes
to a scarcity of men, which occasions
wages to be so extravagant, that the fish
which they catch is often not sufficient to
pay the servants. And the inhabitants are
thereby so much discouraged, that there
have not been half the number of boats
employed by them as formerly.”


“But whatever redress the corrupt administration
of the admirals is capable of,
another great disadvantage, which the
fishery labors under, proceeds from the
country being, during its long winter,
without the least form of government or
order. It is my humble opinion, that it
would be of considerable service to it, if
some of the inhabitants were intrusted
with commissions of the peace for the
administration of justice during that season[38].”


Another writes—“I flattered myself that
as there was no garrison here (namely at St.[81]
John’s) to terrify or interfere, I should
find a stricter obedience to the laws and
regulations that had been made for the
government of the place; and that proper
regard was shewn to the authority
vested by law in the fishing admirals;
but on the contrary I find, that
through the ignorance of some, and negligence
of more, for some years past,
they have been so slighted, that unless the
captains of the men of war are present
to assist and countenance them at their
courts, their meetings would be nothing
but confusion, and their orders of no use,
which is the reason we are obliged to usurp
power, which, I apprehend, does not
properly belong to us, of publishing orders
in our own names; to prevent, as
much as we can, the threats, the rioting,
and disorders, which, to the great detriment
of the fishery, are generally practised
in our absence.”


“The great misfortune, and which I think
is the origin of all the rest that attend this
country, is, that no body in the winter season
is empowered to keep peace, and administer
justice; that the sober and industrious
are every day liable to be insulted[82]
and robbed by the idle and profligate,
unless they can oppose them with greater
force. In the heads of inquiry from the
lords commissioners for trade and plantations,
there is an article which directs,
the names of the persons to be returned
them, who administered justice during the
last winter; but I cannot find that we are
any where authorized so to empower proper
persons upon leaving the country; which
is so well known by every body, that
were we to pretend to appoint any body,
not the least regard would be shewn
them.”


Speaking of Placentia, and the part surrendered
by the French at the treaty of
Utrecht; he says,—“Before the arrival of
the men of war, they are threatened and
intimidated into a compliance with whatever
is required of them; the admiral’s
powers are contemned; their court represented
as ridiculous and invalid, and of
course, no justice to be had. But as this
has been already represented by petition
from the masters of ships, and other methods,
I will not take up your time by
enumerating more particulars, which would
only be a repetition of what is already sufficiently[83]
known to their lordships. Although
I could not settle every thing in
the order it ought to be, I endeavoured to
do all I could; and as I found the regard
to the fishing admirals so mightily diminished,
as made me justly apprehend,
orders from them would be but negligently
obeyed, I therefore gave out in my name,
such as I found absolutely necessary, the
copies of which I have herewith sent; and
have also entered them in a book, which I
have left sealed up with one of the principal
inhabitants, to be delivered to the next
officer that shall come after me, that he
may know what I did, and my reasons for
so doing. I beg leave to say, that if such
a register of the proceedings of every officer
had been kept ever since we had possession
of the place, it would not be so difficult to
decide every one’s property; which really,
as things were, I could not pretend to do,
without running a risk of doing injustice.”


“I found disputes had been very differently
decided; sometimes according to the
laws and customs that were in force in the
time of the French, and sometimes according
to those observed in the other parts of
Newfoundland. For no new act having[84]
passed since the acquisition of the place,
and no certain rules presented by the heads
of inquiry from the lords of trade, every
one has decided as he thought proper[39].”


Another says, “there is another great
occasion of disorder, which always stores up
large stock of complaints, to perplex us
upon our arrival—the neglect of deputing
some body to maintain order in the winter, or
the want of power rather to depute some body
for that purpose; so that the winter
season is a sort of respite from all observance
of law or government. At that time,
theft, murder, rapes, or disorders of any
kind whatsoever, may be committed, and
most of them are committed without controul,
and time enough given for the offender
to make off: for should any one
concern himself to secure the party, his
design would be withstood, as an usurped
authority; and most would take part with
the offender, to suppress the usurpation,
without regard what became of the criminal,
or what may be the consequence of
the crime; and I have been acquainted
with some cases of this kind: so that there
seems an absolute necessity, that this particular[85]
should be provided for, that people
may always have somebody to apply to
for justice; that somebody may always be
at hand to suppress disorder and riot, and
to have a lawful power to command the
assistance of his majesty’s subjects in the
execution of a duty exercised for the public
good. St. John’s is the metropolis of
the island, and the discipline which is kept
up there, whether bad or good, will have
a great influence upon all the rest of the
harbours. If good order could be established
here, it might easily be effected in
all other places; and I do not know any
thing that tends more to confusion, and
proves more prejudicial to the fishery, than
that irregularity.”


After having spoken of the oppression
from debts, the imposition in prices, the
seizing for payment, and the like, he goes
on—“It is likewise necessary to acquaint
their lordships, that although it is reasonable
for them to believe, that the authority
given by the statute to the admirals of
harbours, is sufficient to secure them peace
and quietness, and to prevent any disturbances
that may happen, to the detriment
of the fishery, yet the experience of any
one that has but once known this trade,[86]
will affirm, that was it not for the yearly
expectation of a ship of war coming among
them, the power of their admirals would
be of little regard; so that one may modestly
affirm, they only commence regulation
upon the arrival of any of his majesty’s
ships, and lay it down the moment they
are gone; upon which account several go
and come with the trade, which charge, I
believe, they would gladly be freed from,
could they be secure of good order in the
winter[40].”


Another writes, “I have made it my particular
care to inform myself about the government,
that being the material and only
thing wanting: for without that there is
nothing; and with that, I mean a good
government, there would be every thing—it
would give a new life and spirit to every
thing; for then every man would know
his own, and no more; every one would
know his master, and obey; and every one
would know his servant, and no more;
every servant would do his master’s work,
and every master would pay his servants’
wages without fraud; he would know his[87]
own pile of fish, his boat, his stage, his
nets, &c. But on the foot it is now on, he
that happens to be the strongest, knows
every thing to be his own, and the weakest
knows nothing, or had as good as know
nothing, except in that little interval of
time when his majesty’s ship, or ships,
happen to be there; and very often the
aggressor absconds, runs into the woods,
and flies from justice, until the ships are
gone; and then down he comes, and reigns
lord again. This has been done by a great
many, but especially by one Ford, who had
a power left him by a commander of one
of his majesty’s ships to be governor of
Petty Harbour. I have seen, and heard
so very much of this, that I faithfully believe,
and I have done myself the honour
in two letters to my lords of trade, to acquaint
them, as I here do, that no man living
in the country of Newfoundland is fit
to govern. For the set of people that
live here, are those that cannot live in
Great Britain, or any where else, but in a
place without government; and it is my
opinion, without there is a governor, a man
of honour and justice sent to Newfoundland,
I mean a civil governor, that shall not
reside altogether at one place, but must have[88]
a sloop, or some embarkation, to transport
him from cove to cove, and set order and
rule amongst them, the fishery and trade
to that place must fall in a little time.”


“I have given out several orders for the
admirals, and the oldest masters and planters
to survey the stages and cook-rooms,
&c. to know what belong to ship-rooms,
and what was boat-rooms; and their
report to me was, that they had not been
surveyed so long, that there was none,
either admirals, masters, or inhabitants,
knew one from another; which was the
best, and all that I could get on that head[41].”


Again—“for the most part the admirals
are for their own private benefit, and not
the public good, in general; they have
some privileges more than the others, and
especially in collecting their debts due to
themselves, and very little else is minded of
the act of parliament, relating to the admirals
of the harbours, if they are not
compelled by the commanders of his majesty’s
ships of war, and all this is for want
of a governor on the spot. The admirals[89]
determine differences, and very often they
appeal to the commanders of his majesty’s
ships for a final determination; but stand
by that no longer than while the captain
is on the spot[42].”


Another writes, “I had several complaints
from the inhabitants and others,
of injustice done them by the admirals,
vice-admirals, &c. of their taking their fish
off the rocks before cured, and other goods,
for debts by them contracted, without any
law or justice, which has been a common
thing amongst them; so that they wholly
ruin the fishery, for the planters have nothing
to work with next year. These
things are done by masters of ships,
when the admiral has been in harbour,
without his order. By this irregular proceeding
the strongest man gets all, and the
rest of the creditors nothing; so that the
next year a planter is forced to hire himself
out for a servant.”


Again—“as for the people complaining
to admirals of any injustice done them by
others, I do not find that any master of a[90]
ship values him, but the strongest side takes
away every thing by force[43]”.


Another writes, “the admirals prove
generally the greatest knaves, and do most
prejudice, being both judge and party, in
hearing suits for debt; and when they
have saved themselves, then they will do
justice to others: so it would be requisite
to have a civil government, and persons
appointed to administer justice in the most
populous and frequented places, that they
may be governed as Britons, and not live
like a banditti or forsaken people, without
law or gospel, having no means of religion,
there being but one clergyman in all the
country[44].”


While the king’s officers, and persons
employed and trusted by the government,
were making such uniform complaints
of the abuses and disorders in the
government of Newfoundland, the merchants
adventurers seem to have been
wholly blind to these irregularities. In[91]
several representations and memorials from
them, sent in consequence of letters from
the board of trade, written in the year
1715, there are complaints of grievances,
but those were quite of a different sort;
and if they were removed, they appear
to have been wholly unconcerned as to the
continuance of those we have just been recounting.


Complaints
from the Merchants.


They complain of the great quantities of
liquor and tobacco, which had paid no
duty, and were imported by the New England-men,
whereby the fishermen were debauched,
and the fishery generally hindered;
that the New England ships enticed
away the seamen, and were encouraged
thereto by a premium of forty shillings
per head, given by the government
of New England for bringing seamen and
fishermen. They prayed that all import
of liquor and tobacco, except from Great
Britain, should be prohibited, and the
articles forfeited; and that the fishing admirals
should have power to seize, and to
have half the forfeiture.


They prayed, that all store-houses, &c.
built by planters since 1685, in the front of[92]
fishing ships’ rooms, towards the water,
should be declared by act of parliament to
belong to the ship to which the fishing
room belonged—this to be enforced by
forfeitures, to be levied by the fishing admirals.
For better preservation of store-houses,
cook-rooms, stages, &c. &c. they prayed
that the fishing admirals, at the end of the
season, should inspect them all, and depute
some honest and best inhabitant of the harbour,
to take care that no one presumed
to demolish or injure them; and that such
person so deputed should receive twenty shillings
from the fishing ship which occupied
it next season.


They propose some strict regulations,
to prevent aliens and strangers sending
out ships as English owned; with a
power to the fishing admirals to administer
an oath to the masters of ships, as to
the ownership; and to seize, as forfeited,
all foreign ships; half the forfeiture to go
to the person seizing.


They complain, that the French parts
were not so open for fishing ships to get
rooms as they should be, Governor Moody
and others pretending to have bought the[93]
French plantations; that the governor had
permitted French ships to come, and had
taken all power out of the hands of the
fishing admirals.


In order that the poor labouring fishermen
might not suffer oppression and disturbance
from any military, or public officer,
soldier, they desired, that no military person,
on any pretence whatsoever, should intermeddle
with the fishery or fishermen, inhabitants,
or others; nor should let the soldiers
out to hire, nor keep suttling houses,
nor have, for their private use, any house
out of the lines of the fortification, or any
gardens that have served, or may serve,
for fishing rooms, according to the
judgment of the fishing admirals of the
harbour.


And because the commodores of late
years had taken upon them to keep courts,
and send warrants to several remote harbours,
for commanders of fishing ships, in
the height of the season, upon frivolous
complaints of idle and debauched men, and
others, without the complaint being first
heard by the fishing admirals, according to
act of parliament, to the great prejudice of the
fishery—they prayed, that the commodore[94]
might not in future be permitted to do the
like; that all complaints might be decided
by the fishing admirals, and that no commodore
should presume to intermeddle with
debts between merchants, masters, planters,
and fishermen, as they had lately done,
to the great prejudice of the merchants.
They pray, that the ships of war, which
were there to project the trade, might be
obliged to come or send assistance, in case
of piracy or mutiny in any of the harbours.


They pray, that none should retail liquors
to fishermen, or persons concerned in the
fishery, but only to their own servants;
that goods, the produce or manufacture
of Great Britain, might be exported duty
free, for the benefit of the fishery; that all
oil, blubber, furs, and fish, taken or made
in Newfoundland by British subjects, might
be imported duty free, and that Mediterranean
passes for the ships carrying fish
might be given gratis.


They pray, that fishermen should be
obliged to fish till the last day of August,
if required by their masters. The usual
day had been the 20th of August; but the
fish now came later. That fishing admirals[95]
should have power to give corporal
punishment to all persons, of what degree
soever, who profaned the Lord’s-day, and
all common drunkards, swearers, and lewd
persons; that a sufficient number of ministers
should be sent to the principal harbours,
to instruct the inhabitants; and that
they might be paid from England, the
country being very poor[45].


Others represented, that it would be
proper to add penalties to stat. 10 and 11
Will. 3.; that masters of ships should
give bond to bring back such persons as
they carried out; or, if they went to a
foreign market, to procure others to do it;
that bye boat-keepers should give bond to
return and bring back all their servants and
hired men, with the like proviso, in case
of going to a foreign market; that masters
coming from any place but Great Britain,
should give bond not to take away any
fishermen or seamen—the penalty to be
fixed by the fishing admirals; that seamen,
or fishermen, who refused to return[96]
home, should forfeit all their wages; that
no master of a ship, bye boat-keeper, or
other person, going or trading to Newfoundland,
should give credit to any servant
or fisherman to more than forty shillings;
nor any other person selling liquor
to more than five shillings; that a debenture,
or bounty, be allowed on all beef
and pork, as if exported for sale; and also
for all bread, flour, and malt, that should be
shipped off in fishing ships bound for Newfoundland[46].
To these particulars were
added the same complaints about foreigners
interloping in the fishery, as in the former
memorials. The mayor of Plymouth, in
answer to the same sort of letter from the
board, says, that the merchants had no
other complaint to make than the encroachments
of foreigners[47].


Such were the representations made by
the officers of the crown on one hand, and
by the merchants on the other, respecting
the trade and government of the island. I
have delivered them in their own words,
and the reader will decide between them.




[97]


PART III.


PART III.
From A. D.
1728, to Stat.
15, Geo. 3.




Justices appointed—Opinion on raising Money
by the Justices—Contest between the Justices
and fishing Admirals—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 hope 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 an appointment[98]
could not fail of its effect. But
the cause which had always operated to
prevent any sufficient 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
an 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
parliament 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
parliament, but only from the king in
council. How futile soever this reason
may be, it had its effect in staggering
many, and contributing to bring the office,
and persons bearing it, into great
question, if not contempt.


Justices appointed.


Mr. Osborn, upon his arrival, proceeded[99]
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[100]
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[48].


Opinion on raising
money by
the justices.


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[101]
& 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 commissions, 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[102]
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[49].


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[103]
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[50].
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[51].


Contest between
the justices and
fishing admirals.


Such were the discussions raised on the
occasion of these attempts to improve the
police of the island. Mr. Osborn again[104]
went to Newfoundland: but in a letter
from St. John’s 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, says 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,[105]
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.”


[106]


The prison and court house at St. John’s
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[52].


Memorials were presented to the governor,
by the justices of St. John’s, 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[53]. This
distinction in the authority from whence[107]
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[54].


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[108]
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[55].”


Opinion on the
authority of the
admirals.


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 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[109]
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[56].


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,[110]
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[57]. 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[111]
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[58]. 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[112]
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.


A commission
of oyer and terminer
proposed.


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[113]
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[114]
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[59]. 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[60].


Such Commission
issued.


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.[115]
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 otherwise 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[61].


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[116]
for issuing this, as well as the commission
of the peace. It has been the interest
and inclination of many at Newfoundland
to contest every thing 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.


Lord Baltimore
revives his
Claim.


In the year 1754, Lord Baltimore laid in
his claim to be put in possession of a large
tract of land in the island, by the name of[117]
the province of Avalon, and of all the royal
jurisdictions and prerogatives thereto belonging,
and prayed that his majesty would
approve John Bradstreet, Esq. as governor
thereof. This grant has been before mentioned[62].
A claim so important was referred
by the board of trade to the attorney and
solicitor general; who, after inspection of
such papers as were furnished by the board,
and hearing what could be urged by Lord
Baltimore, were of opinion, that as, notwithstanding
the determination in 1660 in
favour of the grant in 1623, there was no
evidence of any actual possession of the
province, nor the exercise of any powers of
government there by the Baltimore family;
as, on the contrary, it was most probable,
that, at least from 1638, they had been out
of possession; as from the year 1669 there
had been many proceedings, which appeared
from the books of the board of
trade, and even an act of parliament passed
in the 10 and 11 Will. 3. inconsistent with
the right now set up, without taking the
least notice thereof, and without any claim
or interposition on the part of the Baltimore
family; and as his majesty’s approbation
of a governor ought to be in consequence[118]
of a clear title of proprietorship,
they were of opinion, his majesty should not
comply with the petition. This opinion
of the law officers seems to have been
adopted by the board, and no more has
since been heard of the province of Avalon[63].


The board of trade in November 1758,
shewed a disposition to take into consideration
the trade and fishery of Newfoundland,
which were then said to have declined of late
years. For the purpose of obtaining every
information that could be derived from
those experienced and interested in the question,
they directed letters to be written to
the towns in the west; but they received
for answer nothing but such matter as had
relation to the inconveniences resulting to
the trade from a state of war; and the only
remedies proposed were a due regulation
of convoys, and that seamen employed in
that trade should not be subject to pressing[64].


The Peace
1763.


After the conclusion of the peace in
1763, a more favourable opportunity
seemed to present itself for doing something[119]
towards the encouragement of the
fishery. Upon this occasion, as upon former
ones, when this subject was under deliberation,
the board of trade called upon
the western towns for advice and information;
and now they joined to them such
towns in Ireland and Scotland as had lately
engaged in that trade; namely, Cork,
Waterford, Belfast, and Glasgow.[65]


The French turned their attention to the
arrangements to be made in their own
fishery, in consequence of the peace. The
French ambassador presented to our court
a project of arrangement, to be reciprocally
agreed upon between the two crowns,
for avoiding disturbance and dispute between
the English and French in carrying
on the concurrent fishery. This matter
came before the board of trade, who referred
it to Sir George Hay, the king’s advocate,
and Sir Fletcher Norton, and Mr. de
Grey, the attorney and solicitor general,
for their opinion, whether the project was
consistent with stat. 10 and 11 Will. 3.?
and whether the crown could legally enter
into, and had power to enforce such regulations,[120]
so far as they related to the subjects
of Great Britain? To which they
answered, that the project contained many
things contrary to the act, as well in respect
of the rights of the king’s subjects, as to
the mode of determining controversies
arising there; and that the crown had no
power to enter into, or enforce such regulations[66].


It was, however, thought proper to draw
up some additional instructions to the governor,
with a view of preventing any interruption
or disturbance being given by
the English to the French in carrying on
their fishery within the limits appointed
by treaty. These were also submitted to the
same law-officers for their opinion as to the
statute, and the power in the king to make
them. The law-officers made some alterations
in these instructions, and declared,
that in such form they might be legally
given to the governor, being conformable
with the thirteenth article of the treaty of
Utrecht, and not repugnant to the statute.
For, say they, although the statute seems
to confine the whole trade of Newfoundland[121]
to English subjects; yet as the French
were at the time of passing the act, and had
been for many years before, in possession
of several parts of the island, and notoriously
carried on an open fishery, and
claimed to be entitled thereto; and as that
claim, and the exercise of a fishery there,
had not been rejected or disallowed by the
treaty of 1686, nor by the treaty of Ryswick
in 1697, although several petitions of merchants
and others had been presented to
the house of commons in the year 1696,
complaining of encroachments of the
French upon the English trade and fishery
there; it seemed to them, that the statute
was not meant to extend to such parts of
the island, and its adjacent isles and places,
as were then left in the possession of the
French; nor to abridge or restrain the power
of the crown over the same, consequential
upon the making of peace; the exercise
of which, in this instance, had received
the repeated approbation of both houses of
parliament in their resolutions upon the
treaties of Utrecht and Paris[67].


The board of trade adopted the amendments[122]
made by the law-officers, and recommended
to his majesty the instructions so
altered to be given in charge to Mr. Palliser,
then governor of Newfoundland.
They took occasion, in their representation
at that time, to enlarge upon the nature
of that trade.


Remarks of the
Board on Stat.
10 and 11 W. 3.


They said, that in framing these additional
instructions, it became necessary to
consider, with the closest attention, the
provisions and regulations of stat. 10 and 11
Will. 3.; which act, having been framed
and passed at a time when the crowns of Great
Britain and France had distinct rights and
possessions on that island, and the subjects
of both carried on distinct fisheries upon
those parts of the coasts, which belonged
to each respectively, was, they humbly
conceived, in no respect properly applicable
to the permissive fishery, which
the subjects of France were entitled by
treaty to carry on in common with the
English subjects within the limits described;
although, being an act in full force,
they had found themselves under the necessity,
in framing these additional instructions,
to conform to the regulations and
provisions of it, in many points, which did,[123]
in their opinion, render those instructions
less effectual and extensive than they might
otherwise have been.


But independent of this objection to the
act, they conceived it highly exceptionable
in almost every other light in which
it could be viewed. The regulations intended
for the fishery were in general by
no means applicable to the present state
of it, and such of them as might be of
use were not enforced by proper penalties.
And, considered as a regulation of government
and civil jurisdiction, this act, they
said, was the most loose and imperfect that
could have been framed, and necessity
had already introduced deviations from it
in many essential points.


Without entering into the particular regulations
of the act, and considering only
its principal imperfection, namely, the
fishery of the island being altogether
changed and varied from what it was, when
the act was passed, it appeared to them
to be disgraceful to suffer it to remain in
the statute-book. But as they feared it
was too late in that session to enter upon
any new parliamentary regulations, the[124]
further consideration must be deferred for
the present, unless his majesty should be
of opinion that a repeal of the act should
be moved for, and a short law enacted,
impowering the king, by proclamation,
order in council, or instruction to the governor,
to make such regulations with respect
to this branch of commerce, as he
should, with the advice of his privy council,
judge most expedient[68].


But nothing was done towards correcting
or repealing an act that had been condemned
so often by public and private
opinions of persons best able to judge of
its merits.


The attention of government was now
occupied by the questions which the late
treaty had brought forward. The French
court, more anxious than ever for the interests
of their fishery, had started a doubt
about the limits at Newfoundland, which
drew on a long discussion at the board of
trade. It had been intimated in the before-mentioned
project of arrangement,
and was afterwards pressed in a special[125]
memorial from the French ambassador,
that Point Riche, mentioned in the treaty
of Utrecht, was the same as Cape Ray;
and that the French limits on that side
should, therefore, be extended as low as
Cape Ray. This piece of geography was,
on their part, founded on no better authority
than a map of Herman Moll; and
was shewn, by the board of trade in a
representation, drawn with great accuracy
and much at length, to be without any
foundation. In this report of the board,
it is demonstrated that all the French
geographers united with those of England
in assigning different places to Point
Riche and Cape Ray, and that the wording
of several public papers and documents,
made it beyond all doubt the clear
intention of both nations, that the French
limits should end at Point Riche, and
should not come down so low as Cape Ray,
confining the French to the limit called
Petit Nord[69].


The proceedings of the French at this
time gave great uneasiness. At the close
of this year, the board of trade made a[126]
representation to his majesty, respecting
several ships of war being sent by the
French to St. Pierre and Miquelon, which
had been ceded to them by the peace;
these, it was supposed, were sent thither,
with a view to a sudden rupture, or at
least to give improper countenance and
hopes to the French in those parts; at
any rate such a measure was considered as
contrary to the treaty, by which those
places were ceded merely as a shelter to
the French fishermen[70]. It was feared a
fishery was meant to be forced there out
of the French limits, and an illicit trade
carried on with the Indians. The ruinous
state of our forts and fortifications in
Newfoundland made these appearances
the more alarming. It was therefore, recommended
to put the forts upon a respectable
footing[71].


Representation
1765.


The board still kept in view the improvement
of the advantages obtained for
the fisheries in those parts, amongst which
that of Newfoundland was the chief; and
on the 29th of April 1765, they made a
second representation to his majesty, more[127]
full than either of the former; and for
those who wish to be informed of the
nature of this trade, a very fit companion
to the representation made in the year 1718.
This was followed by a third, dated the
27th of March 1766, which also deserves
particular attention.


Among other improvements meditated
for Newfoundland, it was resolved to
establish custom-house officers. The
commissioners of the customs, in March
and May 1764, issued out deputations
constituting a collector and controller of
the customs at Newfoundland. We find
that Captain Byng had, in the year 1743,
appointed a naval officer as a necessary assistant
to him, in checking the illicit
trade there carried on. It does not appear
whether this appointment was continued
by his successors.


Newfoundland
a plantation.


A seizure was made about this time at
Newfoundland of a ship, for want of a
register; it appeared to the commissioners
of the customs that Newfoundland had
hitherto been looked upon merely in the
light of a fishery, and vessels going thither
were not thought liable to the same regulations,[128]
as those going to the other British
colonies and plantations: they now applied
to the treasury for advice on this
point[72]; and the treasury referred it to the
board of trade for their opinion; who report,
that they saw no reason to doubt its
being a part of his majesty’s plantations,
and they thought its commerce, and the
ships bound thither, should be under the
same regulations as in the other plantations:
their lordships further thought,
that as the governor had suspected that
many foreigners were sharers in the fishery
and commerce of that island, and had
made seizure of three ships, in two of
which it clearly appeared that Spaniards
were concerned, it was highly expedient
and necessary, that the laws of navigation
should be carried into execution there[73].


Custom-house
established.


Thus by the establishment of a custom-house,
and the introduction of the laws of
navigation, was another pillar added to
the civil government of that place. But
this was considered and treated as an innovation
by those who clamoured for a[129]
free fishery, and Stat. 10 & 11 Will. 3.
and this institution being effected without
the authority of parliament, was questioned
in the same manner, and upon the
same ground, as the commissioners of the
peace, and of oyer and terminer. The
article of fees was a topic on which a
complaint might be founded with most
hopes of success, where the interests of
a fishery were concerned. This the
merchants pushed with petitions and
memorials for some time without prevailing:
and the fees of the custom-house
are a cause of complaint to this
very day.


Property in
flakes, &c. discussed.


The activity of Mr. Palliser during his
government, had contributed to bring
forward the old debated question of property
in flakes and stages. These questions
were of different sorts, the first related
to the parts between Bonavista and
Point Riche, the two limits of the French
fishery. Many tracts of land within those
limits were claimed as private property;
and, as such, might interfere with the concurrent
right of the French to fish there.
This matter was agitated at the board of[130]
trade, and an additional instruction upon
that head was given to the governor, by
which he was commanded, not upon any
pretence whatsoever, to allow any exclusive
possession to be taken, as private property,
of any lands, rivers, or islands in the northern
parts, between Bonavista and Point
Riche; taking special care that such ships
as resorted to that part, should chuse
their stations as they arrived, and should
take up, and occupy, subject to the
governor’s controul, such space only of
beach as was proportioned to the number
of their boats, conformable to Stat.
10 & 11 Will. 3[74].


Justices appointed.


This provision was with a design of
preserving peace between the fishermen
of the two nations. But the exclusive
property which some persons claimed in
stages, flakes, and beach, was a question
that applied to the whole of the island;
and had become of a magnitude to call
for some discussion and adjustment. The
board of trade thought proper to consult
Mr. Yorke, then attorney general, upon[131]
this point. They proposed to him two
questions; first, Whether exclusive property
in any part of Newfoundland can
be acquired under colour of any provision
of Stat. 10 & 11 Will. 3, without a
grant or patent from the crown? secondly,
If any part of that act does warrant such
exclusive property, what is the nature and
extent of it? Can it be acquired for the
purposes of cultivation, and settlement of
the land, or is it confined to the purposes
of fishing; and in what manner, and
upon what principles, and by whom are
any disputes arising thereupon to be decided?


By the answer to these queries, it was
hoped to obtain some clear judgment
upon these points, for the direction of
the governors; who had sometimes considered
this as real, sometimes as personal
property, at other times as no property
at all; and were involved in
great difficulties, and exposed to vexatious
suits for what they had done
at Newfoundland, in relation to this
doubtful sort of occupation and possession.
But I do not find that these questions[132]
were resolved by the attorney-general,
or that the board pressed him for
any answer to them[75]. So that these
points remained for examination in after-times.


Mr. Palliser carried into execution upon
the coast of Labrador (which by proclamation,
the 7th of October 1763, had
been separated from Canada, and annexed
to the government of Newfoundland)
that plan of a free fishery, to be carried
on by ships from Great Britain, which
was practised at Newfoundland, and
which he had shewn himself so determined
to maintain upon its original principles.
In order to accomplish this he had contest
with exclusive property. Several persons
claimed on that coast a property in fishing-posts
and settlements; some under grants
from the French governors of Canada; some
from General Murray. These he broke in
upon, and withal he treated the American
subjects of Great Britain, who were concerned
in some of these settlements, as
excluded from this fishery, by Stat. 10 &
11 Will. 3. which statute he held to apply[133]
to Labrador, now it was brought within
the government of Newfoundland, and
under the authority thereof he contested
the private rights set up on that coast.
To give effect to these principles, he made
some rules and regulations for carrying on
the fishery in those parts.


These novelties caused many complaints
to be brought before the board of trade,
which led to very long enquiry for three
or four years, at different times.


Upon these questions, the board of
trade took some measures; with regard
to the Americans, they were of opinion
that it was not the design of the Stat. 10
& 11 Will. 3. to exclude from the fishery
ships fitted out from America. With regard
to the other points which turned
upon considerations of property and legal
topics, they referred to the attorney and
solicitor general, some cases of grants
from French governors. Upon view of
these cases, the law officers were of opinion,
that these could not be allowed as
valid in any judicial enquiry, and ought
not to stand in the way of any rules, or[134]
regulations to be made in the government
of that coast[76].


Some time after, it appeared to the
board, that the forcing of these rules
and regulations, in order to throw open
the fishery there to adventurers from Great
Britain, was not a wise policy. They were
calculated only for a cod, or whale fishery,
whereas the seal fishery, which was most
pursued here, was a sedentary fishery, and
needed the encouragement of exclusive
property, to support the expence of the
adventure. They therefore, on the 24th
of June 1772, recommended to his majesty
that the coast of Labradore should
be re-annexed to the government of Quebec[77].
This would certainly put an end
to the disquietude under which persons
laboured, who had private property there,
which they saw exposed to the operation
of Stat. 10 & 11 Will. 3. This, however,
does not seem to have been the
reason for the board recommending such
measure; for being called upon to reconsider
their opinion as to the re-annexing[135]
of the coast of Labradore to the government
of Quebec; they said, that it was
not in consideration of the loss which individuals
would sustain, if private property
was disturbed, but they said, when
it appeared to them that a great part of
that coast was claimed as private property,
under grants from the governors of Canada;
and that his majesty was bound by
treaty to admit those claims; they thought
he could not in justice enforce regulations
that were subversive of those rights[78].
According to the principle here laid down,
the Quebec act Stat. 14, Geo. 3, c. 83, annexed
to that government all such territories,
islands, and countries as had, since
the 10th February 1763, been part of the
government of Newfoundland, and they
were so to continue during his majesty’s
pleasure[79].


Stat. 15, Geo.
3.


The last measure taken respecting Newfoundland,
during this period, was passing
Stat. 15, Geo. 3, c. 31, commonly
called in the island, Sir Hugh Palliser’s
act; it being supposed to have originated
from the advice and assistance, principally,[136]
of that gentleman. The design
of this act was to favour, and keep
alive, the principle of a ship-fishery carried
on from England: one of the regulations
of it, was to enforce the payment
of wages, another to secure the
return of seamen, and fisherman to this
country; the provisions of it are all enforced
by a special penalty, the want of
which in Stat. 10 and 11 Will. 3. had
been so often lamented.


The nature of the provisions of this
act, and the rigour with which it was
easy to enforce them, contributed to make
this law very unpopular in the island;
and after all the alterations that had been
made, without the aid of parliament, since
Stat. 10 & II Will. 3. none was so ill received
as this; but, being an act of the
legislature, it was submitted to with silent
discontent. When persons concerned in
this trade complain of the innovations
made of late years in the trade of Newfoundland,
and express a wish to be
put on the footing of Stat. 10 and 11
Will. 3, they mean, that they wish
to be relieved from this act of parliament;[137]
and they have, many of them,
no scruple to say, that since Sir Hugh
Palliser’s act, it is with the greatest
difficulty that merchants can carry on
the fishery with profit to themselves.


The regulations made by this act were
very important. It was now declared,
that the privilege of drying fish on the
shores of Newfoundland, should be enjoyed
only by his majesty’s subjects arriving
at Newfoundland from Great Britain, or
one of the British dominions in Europe;
which settled the question that had
been raised in favour of the colonists.
This act gave several bounties for encouraging
industry in the take of fish.
It provided for securing the return of
the seamen to Europe; by empowering
the master to detain, out of their wages,
forty shillings for paying their passage
home; and obliging him to see his men
put on board passage-vessels. It forbad
masters to suffer seamen to take up more
than half their wages in articles of supply;
and obliged them to pay the other half in
cash, or good bills on England or Ireland.
It gave to the seamen a lien on[138]
the fish, and oil for their wages; and, to
secure the execution of this act, penalties
were annexed to the various provisions,
and a jurisdiction given to the court
of session, and vice-admiralty to enforce
those penalties.




[139]


PART IV.


PART IV.
From Stat. 15,
Geo. 3, to A.
D. 1793.




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—An
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.


[140]


Import of live
Stock, &c.


In this interval, the war had determined,
and the independence of the United
States of America had produced, a new
position of affairs in that part of the world,
by which Newfoundland was affected, as
well as the other parts of his majesty’s
territories in America. One of the first
questions that was occasioned by this revolution
was, the supply of provisions for
Newfoundland and the fishery. These had
before the war, come in a great measure
from the Colonies that were now separated;
and before the new situation of things
was quite understood, this supply, it was
thought, might still be occasionally permitted,
and, in a case of distress, had actually
been resorted to. The western merchants
took alarm at the appearance of an intercourse
being allowed between the United
States and their fishery; they presented
memorials to have a stop put to it; they
alledged the place might be supplied from
Great Britain or Canada. The allegations
on both sides, of those who argued for a
supply, under certain limitations, from the
United States, and of those who were
wholly against this intercourse, led to long
examination of witnesses, and various considerations
of policy, before the lords of[141]
the committee[80]. This ended in the committee
resolving, in January 1785, to recommend
to his majesty, that a permission
should be given to import bread, flour,
and live stock, in British bottoms, which
ships should clear out from the king’s dominions
in Europe, with a licence from the
commissioners of the customs, which should
be in force for seven months. As this licence
was to be for seven months, and the
temporary act for regulating the intercourse
with the United States would expire
in less time, it was suggested by the attorney
and solicitor general, whether it
might not be better to pass a special act
for this purpose[81]. The committee accordingly
recommended to his majesty,
that a bill to that effect should be proposed
in parliament, but that it should be in force
for that season only[82]. Such an act was
accordingly passed; namely, stat. 26 Geo.
3. C.I. The same question was revived the
following year; when it was considered
whether the act should be renewed. Examinations
in like manner were had; in
which the merchants declared, they were
of the same opinion as they had been last[142]
year; but that they had rather the bill of
last year should be renewed, than the trade
between Newfoundland and the United
States should be laid intirely open[83]. The
committee came to the resolution, that the
act should be renewed[84].


Representation
on a Bill
brought in by
the Western
Merchants.


In the mean time, the encouragement of
the fishery had come under the consideration
of the committee—A bill had been
brought into the house of commons at the
instance of the western merchants; in
this bill it was intended to make several
alterations in the law of Newfoundland;
the principal points of which were, to
give the present possessors a permanent interest
in their lands, and to repeal some
material regulations of stat. 15 Geo. 3.
which the merchants had always disliked.


On 9th December 1785, his majesty was
pleased to refer the matter of this bill to
the committee for them to consider it, and
to report their opinion thereon. This bill
was read at the board on the 14th of
January 1786, and every provision of it
was separately discussed. The subject of[143]
the fishery was under consideration for
several weeks[85]. At length the committee
made a report on the intended bill. This
report contains their opinion upon most of
the points relating to Newfoundland, and
is therefore well deserving of notice. It
has been laid before the house of commons,
and is now in print. The report was unfavourable
to the bill, which was accordingly
laid aside[86]. However, another was
introduced, and passed into a law, and is
stat. 26 Geo. 3. c. 26. This act continued
the bounties given by stat. 15 Geo. 3.
and contributed to render more complete
the plan begun by that statute, for preventing
the seamen and fishermen withdrawing
themselves from this country,
either by staying at Newfoundland, or
deserting to other places.


In the year 1788, the intercourse between
the United States and Newfoundland was
again agitated; and upon the strong representations
of the Quebec merchants, the committee
were of opinion for proposing a bill
to parliament, to prevent entirely the supply
of bread, flour, and live stock, from the[144]
United States; but, at the instance of the
western merchants, this intention was
dropt[87]. The following year the mode of
occasional supply was continued, at the
desire of the western merchants, and so it
has gone on ever since by authority of
stat. 28 Geo. 3. c. 6. s. 13.


Two acts passed.


In this and the following sessions two acts
of parliament were passed respecting Newfoundland.
By stat. 28 Geo. 3. c. 35. his
majesty was enabled to make some regulations
at Newfoundland, to prevent inconveniencies
that might arise from the competition
of the English and the French in
the fishery. By stat. 29 Geo. 3. c. 53. it is
declared, that fish, not caught by subjects
of Great Britain going from the British
dominions in Europe, may not be landed
or dried at Newfoundland. This last act
was occasioned by the people of Bermuda
having engaged in the fishery, and selling
their fish to those who had a clear right to
dry and cure on the island; by this provision
the design of stat. 15 Geo. 3. c. 31. in
confining the fishery to ships going from
Europe, was fully secured.


[145]


Complaints
about courts.


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.


Review of the
Courts of Newfoundland.


The first regulation that looked at all[146]
like a court, was the authority given by
stat. 10 and 11 Will. 3. c. 25. s. 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.


Fishing Admirals


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 regulation 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,[147]
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[148]
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[149]
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
great west-country merchant. This bias
must have been a strong impediment to the
equal administration of justice in the hands
of the fishing admirals. Besides this[150]
which arose from their employment and
connection, there was another disqualification,
that was to be corrected by no integrity
or fairness whatsoever. It should seem,
that persons, educated as masters of merchant
ships, could not in general possess that
discrimination and discernment, which was
necessary for determining right and property,
even in fishing stages and flakes.


Such being the judicature established by
the statute of King William, and such the
hands in which it was lodged, we have
found, that it was executed fully as ill as
could from the nature of it be expected.
We find that the admirals were most of
their time out on the fishery; that, when
in harbour, they were still employed about
curing of their fish, and the other parts of
their business; that the commanders of the
king’s ships were obliged to summon, enjoin,
and enforce them to hold courts;
that discovering the sluggishness of the
admirals, they were under the necessity of
taking liberties not given by the statute;
that, being only a court of appeal, they were
obliged to erect themselves into an original
court. This they did by degrees, and
with a sort of deference to the provisions of[151]
the act of parliament. At first they got
the admirals to sit with them; and I have
seen many judgments and proceedings to
which the commander of some of the king’s
ships has first subscribed his name, and the
admirals have added theirs. It is not to be
wondered, that the commanders of the
king’s ships, with their superior endowments,
should gradually obtain an ascendancy;
and having thus blended their
appellate jurisdiction with the original one
lodged in the admirals, should at length
wholly dispense with their attendance of
the fishing admirals (who would be glad
enough to be excused), and so in time succeed
to a complete original exercise of judicial
authority in the place of the admirals.


So indeed it happened. But there were
not wanting occasions, when the admirals
awaked from their lethargy, and shewed a
steadiness in asserting the dormant powers
lodged in them by the statute. These
were when the adventurers and merchants
perceived the government at home were
making any attempt to introduce a better
system of law and order into Newfoundland.
Accordingly, we have seen, that[152]
upon the appointment of a civil governor
and justices, in the year 1729, the admirals
bestirred themselves; and, from the impulse
which the competition inspired for
the moment, they actually took upon them
all the authority they possessed under the
statute. They even went further, and
claimed a criminal as well as a civil judicature;
and proceeded to issue warrants,
and do acts which belong to justices of the
peace. In these usurpations they were
supported by the western merchants, whose
language it was to represent the provisions
of stat. 10 and 11 Will. 3 as competent to
the complete government of the island in
all matters, both civil and criminal.


But with all this support, so limited a
power, lodged in such feeble hands, could
not sustain the contest; and the admirals
soon fell back into the inactivity, neglect,
and contempt, where they had before
slumbered. As they sunk, the commanders
of the king’s ships rose into importance;
the statute of William grew to be
looked upon as a dead letter; and the administration
of justice, in all the points
there conferred on the admirals, was expected
from nobody but the commanders[153]
of the king’s ships, when they came to the
island in the summer season.


Surrogates.


Although the hearing of certain matters,
by way of appeal, was given to the commanders
by the statute, yet the hearing of
them originally was not authorized. The
possession of the former gave a colour for
assuming the latter; and crude as this
may seem, it was, perhaps, as well warranted
as some of the instances of jurisdiction
now exercised, and from long
usage allowed to the first courts in Westminster-hall.
When the captains were in
possession of this, they proceeded, as happens
mostly in the exercise of power and
authority; they found in that place, as it
is elsewhere, that all judges have the
quality which is invariably supposed to
belong to the best, that of enlarging the
sphere of their cognizance[88]: and we find
very soon, that the captains of ships took
cognizance of debts contracted; and held
courts, in which they enquired of, heard,
and determined all possible causes of complaints;
and with no other lights than
those furnished by the statute of William,[154]
the instructions from the governor, and
the suggestions of their own good sense;
paying always a due regard to the customs
and usages of the country. They did
every thing, that the fishing admirals
might do, and every thing the admirals
had at different times pretended to have
a right to do. From their situation, and
the support they received from the governor,
they were enabled to maintain the
jurisdiction they had assumed. The governor
conferred on them the title of
surrogates, an idea taken from the admiralty-law;
to which, and which alone the
naval governors were in the habit of looking,
and under which it had long been a notion,
that the fishery, as an admiralty concern,
ought to be regulated. A surrogate
is well known in Newfoundland,
as legally deputed by the governor, to
act as his deputy. Under this character
the authority of the governor was exercised
very beneficially. The time of
surrogating was looked forward to as a
season when all wrongs were to be redressed
against all oppressors; and this
naval judicature was flown to by the poor
inhabitants and planters, as the only refuge
they had from the west country merchants,[155]
who were always their creditors,
and were generally regarded as their oppressors.


The governor
holds a court.


While the surrogates in the different
parts of the island were administering justice
in this manner, the governor had also
his court at St. John’s; and, it is easy to
believe, that every thing which the surrogates
permitted to themselves, the governor
thought himself equally entitled
to do and command. Every matter, civil,
and criminal, used to be heard, and determined
in open court before the governor.
Where no special direction was pointed
out by law, a person in that situation
was to be commended for striking out
such a course as the exigency of the situation,
and the good of the place required.
This desire of doing good sometimes carried
the governors further than strict legal
propriety could warrant. They used to
preside in the sessions of justices, although
it was from their authority that
the commission of the justices issued. It
would be endless and unnecessary to
enter into the instances of irregularity
that must follow, when judicatures
were instituted in such a place as this,[156]
by persons who had nothing for their
guide but the rectitude of their intentions,
and a very honourable disposition.


Courts of vice-admiralty
and
session.


In the year 1765, a custom-house being
established at St. John’s, a court of vice-admiralty,
(the court of revenue in the
plantations) was placed there. This court,
in the absence of the governor, during
the winter, had entertained complaints in
other matters than those peculiarly belonging
to it. In this it only followed
the example of the court of sessions, where
the justices had allowed the hearing of
matters of debt, and other subjects of difference
of a civil nature. It was in consequence
of this usage, that the parliament
afterwards conferred on the court of
vice-admiralty, and the session, a jurisdiction
of a civil nature. By Stat. 15,
Geo. 3, c. 32. they have authority to determine
disputes concerning the wages of
seamen and fishermen, and the offences
committed by their hirers and employers
against that act. This jurisdiction was
taken from the court of vice-admiralty,
by Stat. 26, Geo. 3, c. 26, owing to
the unfavourable impressions that had[157]
been made respecting the practice which
had prevailed in that court.


Although the parliament took away
from the vice-admiralty court the authority
vested in it by law, it still continued
to exercise that which no law had
conferred on it; and both that court and
the sessions were resorted to in the absence
of the governor and surrogates, for
the administration of justice in all civil
cases whatsoever. Justice administered
under such circumstances could have but
little of the authority and effect, which
should attend upon the sentence of a
court. There was no doubt in the minds
of any, above the very lowest class, but
the whole of this judicature was an usurpation:
it was, therefore, more frequently
employed as an engine of authority, to
obtain that by a course of law, which could
not, perhaps, be attained by open violence,
than as the means of protecting the
weak against the powerful. A merchant
rather chose to have the assistance of the
court of session or admiralty, to attach and
seize the effects of his debtor, than incur
the odium of taking them with force.
The appearance of a legal course was preferable.[158]
But should a wealthy merchant
become defendant in one of these courts,
it was not so sure that he would approve
the same legal course, or yield the same
obedience to a sentence. He, as well as
the court knew, there was no legal authority
to compel; and it was a question
of prudence only, whether such a defendant
would submit quietly to their order.
If the court happened to have in it
persons who acted with vigour, and had
character and influence sufficient to cause
its decrees to be duely executed; it would,
in such case, be but a bad prospect for a
merchant to look for redress by an action,
to be brought in England against a man
who, perhaps, never might make a visit
there. Such considerations might operate
with the merchants to obey these courts,
even when they decided against them.
Besides, a merchant might think it for his
advantage to yield, in one instance, to a
court, which in so many others he found
useful; he being more frequently plaintiff
than defendant.


It was in this manner, by a sort of
convention, upon views partly private,[159]
partly public, with a design sometimes
selfish, often generally beneficial, but
never without the concurrence and support
of the majority of those most interested,
was a judicature gradually conferred
on these two courts, which with the
governor, and the surrogates, possessed
all the judicature in the island, civil as well
as criminal.


But a time was coming, when a judicature,
that stood on so weak a foundation,
was to be shaken. Though the justices,
and the judge of the admiralty
court might never come to England, the
governor and his surrogates necessarily
did. In the time of governor Edwards,
some persons, discontented with a judgement
made by him in court, at St. John’s,
and carried into execution by the sheriff
there, meant to redress themselves by
bringing an action against the governor
for a trespass in so depriving them of their
property. This was to have been tried at
Exeter, but it was made up before the case
was gone through to the jury.


The governors
cease to hold
courts.


The governor got well quit of this
business, and he proceeded, during the[160]
remainder of his time, to hear causes
in person, without the least doubt or
difficulty, as his predecessors had before
done. But the minds of men were
changed upon this subject; and his successor
Admiral Campbell, 1782, was advised
not to take upon him to sit in court,
as his predecessors had done, nor to determine
any causes whatsoever. He substituted
in the room of this, a mode which
was certainly without exception; and
which, in a country like that, could not
fail of having a very useful, and very extensive
effect. The petitions which used
to be brought to the governor in great
numbers, upon all sorts of questions and
subjects, were still received as before; but
instead of holding a court, and making
decisions, which were to be enforced by
the sheriff, he directed his secretary to
hear the complainant, and if necessary,
the party, against whom the complaint
was made, and thereupon to write at the
bottom of the petition the governor’s opinion,
and give such advice, as if followed,
would have the effect of complete justice.
Advice and direction given from
such authority was most usually followed;[161]
and the administration of justice was,
in a great degree, attained in this mode
of application, without any course of process,
as in a regular and open court.


However, in many cases, this method
was not acceptable; and many more persons
began, after this time, to recur to
the courts of session, and vice-admiralty;
and these two courts, as they were open
all the winter, presented a more useful,
and certain course of redress, than the
above mode of petition. These two courts
encreased very much in business from the
beginning of Admiral Campbell’s government.


Court of common
pleas instituted.


But these two courts derived this accession
of business from the necessity of circumstances
merely; their authority was
still as feeble as before, and the exercise of
it depended upon the like precarious circumstances,
for being carried into effect.
As the population of St. John’s encreased,
and as the light of later times, which
spreads every where, had reached that
place, it became necessary to have something
more than opinion and sufferance
to found a judicial authority upon. When[162]
Admiral Milbanke was to set out to his government,
in the summer of 1789, he was
strongly advised by his secretary, Mr.
Graham, (who had been secretary to the
three preceding governors) to get something
of a court established, that might
stand on unquestionable authority; and
the governor’s commission being searched
for this purpose, it was found that he had
full power to appoint judges, and in cases
necessary, justices of oyer and terminer, &c.
It was suggested to him, that judges, contrasted
as the word there seemed to be with
justices of oyer and terminer, ought to be
considered as meaning something different
from such justices; and that being in a
popular, untechnical sense, usually applied
to those who preside in the three
courts in Westminster-hall, it had grown
in the minds of unprofessional men to
signify more especially judges in civil
matters; that it therefore seemed, the governor,
by these words, had authority to
institute a court of civil jurisdiction; and
he was accordingly advised to institute a
court of common pleas to proceed by a jury
in the manner of a court of common law
in this kingdom.


[163]


Justices appointed.


This opinion upon the wording of the
commission, was urged not to be a strained
exposition, to obtain totidem verbis, an
authority which perhaps might not have
been intended to be given; but to be a
necessary one, and such alone, as could
be drawn from the words. But those
who have read the foregoing history, of the
first granting to the governor the authority
of appointing commissioners of oyer and
terminer, will be satisfied, when he reads the
same words in the first commission granted
for that purpose, that they were designed
to convey nothing more than that
simple authority. One may be a little
surprised how a power of appointing commissioners
of oyer and terminer should
be penned so as to stand judges, and in
cases necessary justices of oyer and terminer.
But it appears that in commissions to West
India, and other governors, where it was
meant to convey the power of appointing
standing judges, as well as occasional justices,
these words are to be found, placed
in this manner; and in the way precedents
are followed, these words were copied,
where it was meant to appoint only justices
of oyer and terminer, and those occasionally.






[164]


Complaints
against it.


The governor’s authority, whatever it
might be, was actually carried into effect,
by an appointment of a court of common
pleas, and judges, in the summer 1789.
This court of common pleas transacted
business during the following winter; but
the western merchants preferred very heavy
complaints against the proceedings of this
court; what they alledge against it may
be seen shortly stated in the representation
afterwards made by the committee of
trade, and now printed by order of the
House of Commons. Their great objection,
which they do not state, but which I
will venture to do for them is this; that
they now saw a court established (as they
believed) upon good authority, with
which they could not trifle, as they had
been used to do with the feeble judicatures
before-mentioned; those inefficient
courts they preferred, because they could
make use of them when they needed their
assistance, and could intimidate the justices,
and obstruct their proceedings,
whenever they themselves were to be the
objects of animadversion. They had been
in the habit of seeing this species of weakness
and anarchy ever since Newfoundland
was frequented, from father to son;[165]
it was favourable to their old impressions,
that Newfoundland was theirs, and that
all the planters and inhabitants were to
be spoiled and devoured at their pleasure;
in support of this, they had opposed,
as we have seen, every attempt
at introducing order and government into
that place. It was in this spirit, that
they questioned the king’s right to appoint
a civil governor, to appoint justices
of the peace, to appoint commissioners of
oyer and terminer; that they complained
of the custom-house, and even talked of
presenting it as a nuisance, because erected
on ship’s room; that they treated
Stat. 15, Geo. 3, as destructive to the
fishery, because it compels the payment
of servants’ wages; and that they brought
forward a bill in 1785, in order to expose
the servants once more to the will of their
masters, as to the payment of their wages.


These clamours were backed with the
popular representation, that the fishery
should be free, and that a fishery carried on
from this country, as the western merchants
carried it on, was the old and true
policy for Newfoundland. But their
claims to a free fishery seem to be these;[166]
namely, to be free of all inspection from
government; no justices, no courts, no custom-house.
This is what they mean, when
they wish all restraints to be taken off the
fishery, so as they may carry it on upon
the footing of Stat. 10 and 11 Will. 3.


Representation.


The pretences urged by the merchants
against the court were seen through by his
majesty’s servants; but it appearing to the
law-officers, that the governor had not
authority under the words of his commission
before observed upon, to institute
that, or any other court, for civil causes;
and it appearing to the committee of council
for trade, that a court of civil jurisdiction
ought to be established there, they recommended
to his majesty to appoint or to
authorise the governor, by proper words,
to appoint one; and this court, they recommended,
should proceed in a summary
way. The opinion of the board on this
matter will be better seen in the representation
they made to his majesty, which was
laid before the house of commons, and
has been printed by their order.


An Act passed
for a Court of
Civil Judication.


However, no court was then established;
and the court of common pleas, instituted[167]
by the governor, continued, during the
year 1790, to proceed as before. The subject
was taken up by the committee of trade
in the year 1791; and a bill was presented
to parliament, under their direction, for
instituting a court of the sort they had recommended
in the representation made in
1790. This bill passed into a law; and
being intended as an experiment of a
new judicature, it was to endure for one
year only. The result of that experiment
was to propose another bill in the sessions
of 1792, for instituting a court somewhat
different from that of the preceding bill.
This also was only for a year.


It is now for the consideration of parliament
finally to determine what courts are
to be established in the island for the administration
of justice in future.


April 1793.




APPENDIX:

CONTAINING

The STATUTES relating to

NEWFOUNDLAND.




CONTENTS.





Stat. 10 & 11 Gul. III. Cap. 25.
p. i.




Stat. 15  Geo. III.  Cap. 31.
xvi.




Stat. 26  Geo. III.  Cap. 26.
liii.




Stat. 28  Geo. III.  Cap. 35.
lxxxiv.




Stat. 29  Geo. III.  Cap. 53.
xci.




Stat. 31  Geo. III.  Cap. 29.
xcix.




Stat. 32  Geo. III.  Cap. 46.
civ.







[i]


APPENDIX.


10 & 11 Gul. III. Cap. 25.




An act to encourage the Trade to Newfoundland.




Preamble. King’s subjects
to have
free trade to
Newfoundland.
No alien to
bait or fish in
Newfoundland.


Whereas the trade of and fishing
at Newfoundland is a beneficial
trade to this kingdom, not only in the imploying
great numbers of seamen and ships,
and exporting and consuming great quantities
of provisions and manufactures of this
realm, whereby many tradesmen and poor
artificers are kept at work, but also in
bringing into this nation, by returns of the
effects of the said fishery from other countries,
great quantities of wine, oil, plate,
iron, wool, and sundry other useful commodities,
to the increase of his Majesty’s
revenue, and the encouragement of trade
and navigation; be it enacted by the King’s
most excellent Majesty, by and with the
advice and consent of the Lords spiritual
and temporal, and Commons, in this present[ii]
Parliament assembled, and by the authority
of the same, That from henceforth
it shall and may be lawful for all his Majesty’s
subjects residing within this his
realm of England, or the dominions thereunto
belonging, trading or that shall trade
to Newfoundland, and the seas, rivers,
lakes, creeks, harbours in or about Newfoundland,
or any of the islands adjoining
or adjacent thereunto, to have, use, and
enjoy, the free trade and traffick, and art
of merchandize and fishery, to and from
Newfoundland, and peaceably to have, use,
and enjoy, the freedom of taking bait and
fishing in any of the rivers, lakes, creeks,
harbours, or roads, in or about Newfoundland,
and the said seas, or any of the islands
adjacent thereunto, and liberty to go on
shore on any part of Newfoundland, or any
of the said islands, for the curing, salting,
drying, and husbanding of their fish, and for
making of oil, and to cut down wood and
trees there for building and making or repairing
of stages, ship-rooms, train-fats,
hurdles, ships, boats, and other necessaries
for themselves and their servants, seamen,
and fishermen, and all other things which
may be useful or advantageous to their
fishing trade, as fully and freely as at any
time heretofore have been used or enjoyed
there by any of the subjects of his Majesty’s
royal predecessors, without any hindrance,
interruption, denial, or disturbance
of or from any person or persons whatsoever;
and that no alien or stranger whatsoever,[iii]
(not residing within the kingdom of
England, dominion of Wales, or town of
Berwick upon Tweed), shall at any time
hereafter take any bait, or use any sort of
trade or fishing whatsoever in Newfoundland,
or in any of the said islands or places
above-mentioned.


No ballast, &c.
to be thrown
out of any
ship into the
harbours,
but carried on
shore.


2. And for the preserving the said harbours
from all annoyances; be it further
enacted by the authority aforesaid, That
from and after the twenty-fifth day of
March one thousand seven hundred now
next coming, no ballast, prest stones, or
any thing else hurtful to or annoying any
of the harbours there, shall be thrown out
of any ship or otherwise, by any person or
persons whatsoever to the prejudice of any
of the said harbours, but that all such ballast
and other things shall be carried on
shore, and be laid where they may do no
annoyance.


No person to
destroy any
stage or cook-room,
&c.
Stages to be
repaired with
timber.


3. And be it further enacted by the
authority aforesaid, That no person or persons
whatsoever shall (at his departure out
of the said country, or at any other time)
destroy, deface, or do any detriment to any
such stage or cook room, or to the flakes,
spikes, nails, or any other thing whatsoever
thereto belonging, as he or they shall
fall into at his or their coming into the said
country, but that he or they shall (during
his or their stay there) content him and
themselves with such stage or stages only[iv]
as are needful for him or them, and shall
also (at his or their departure thence) leave
all such his or their stage or stages, without
doing, or causing to be done, any wilful
damage to any of them; and that for
the repairing of such stage or stages as he
or they shall so take, during his or their
abode there, the same shall be done with
timber fetcht out of the woods there, and
not by the ruining, breaking down, demolishing,
prejudicing, or anywise injuring
the stage or stages of any other person or
persons whatsoever.


Every fishing
ship first entering
harbour,
shall be admiral
during
that fishing
season, etc.
Second ship
vice admiral.
Next ship rear
admiral.
Person possessed
of several
places shall
make his election
which to
abide in, and
give his resolution
to any
after-comer
in 48 hours
after demand.
In case of difference,
admirals
to proportion
the place.


4. And be it further enacted by the authority
aforesaid, That (according to the
ancient custom there used) every such fishing
ship from England, Wales, or Berwick,
or such fisherman as shall, from and after
the said twenty-fifth day of March, first
enter any harbour or creek in Newfoundland,
in behalf of his ship, shall be admiral
of the said harbour or creek during that
fishing season, and for that time shall reserve
to himself only so much beech or
flakes, or both, as are needful for the
number of such boats as he shall there use,
with an overplus only for the use of one
boat more than he needs, as a privilege for
his first coming thither; and that the
master of every such second fishing ship,
as shall enter any such harbour or creek,
shall be vice admiral of such harbour or
creek during that fishing season; and that
the master of every such fishing ship next
coming, as shall enter any such harbour or[v]
creek, shall be rear admiral of such harbour
or creek during that fishing season;
and that the master of every fishing ship
there shall content himself with such beech
or flakes, as he shall have necessary use for,
without keeping or detaining any more
beech or flakes, to the prejudice of any
such other ship or vessel as shall arrive there;
and that such person or persons, as are
possessed of several places in several harbours
or creeks there, shall make his or
their election of such place as he or they
shall chuse to abide in; and shall also,
within eight and forty hours after any after-comer
or after-comers into such place
or places shall demand such his or their resolution
touching such his or their election
(if the weather will so soon permit, or so
soon after as the weather will permit) give
or send his or their resolution to such after-comer
or after-comers, touching such his
or their election of such place as he or
they shall so chuse to abide in for the fishing
season, to the end that such after-comer
or after-comers may likewise chuse
his or their place or places of his or their
abode there; and in case any difference
shall arise touching the said matters, the
admirals of the respective harbours where
such differences shall arise, or any two of
them, shall proportion the place to the several
ships in the several harbours they fish
in, according to the number of boats
which each of the said ships shall keep.


[vi]


Persons who,
since 1685,
have detained
any stage,
cook-room,
etc. shall relinquish
the
same, to the
publick use of
fishing ships,
etc.


5. And whereas several inhabitants in
Newfoundland, and other persons, have,
since the year of our Lord one thousand six
hundred eighty-five, ingrossed and detained
in their own hands, and for their own private
benefit, several stages, cook-rooms,
beeches, and other places in the said harbours
and creeks, (which, before that time
belonged to fishing ships) for taking of
bait, and fishing and curing their fish, to
the great prejudice of the fishing ships that
arrive there in the fishing season, and sometimes
to the overthrow of some of their
voyages, and to the great discouragement
of the traders there; be it further enacted
by the authority aforesaid, That all and
every such person and persons, as since the
said year of our Lord one thousand six
hundred eighty-five, have or hath taken,
seized, or detained any such stage, cook-room,
beech, or other place, for taking
bait or fishing, or for the drying, curing,
or husbanding of fish, shall, on or before
the said twenty-fifth day of March, relinquish,
quit, and leave, to the publick use
of the fishing ships arriving there, all and
every the said stages, cook-rooms, beeches,
and other places, for taking bait and fishing,
and for the dying, curing and husbanding
of fish.


No fisherman
or inhabitant
of Newfoundland
to possess
any stage, etc.
until all fishing
ships be
provided, etc.


6. And for the preventing the ingrossing,
and detaining, of all such stages, cook-rooms,
beeches, and other places, by any
person or persons for the time to come;[vii]
be it enacted by the authority aforesaid,
That no fisherman or inhabitant in Newfoundland,
or any other person or persons
whatsoever, shall, at any time after the
said twenty-fifth day of March, seize, take
up, or possess any of the stages, cook-rooms,
beeches, or other places, which,
at any time since the said year of our Lord
one thousand six hundred eighty-five, did
or at any time hereafter shall belong to any
fishing ship or ships, for taking bait or
fishing, or for drying, curing, or husbanding
of fish, before the arrival of the fishing
ships out of England, Wales, and Berwick,
and until all such ships shall be provided
with stages, cook-rooms, beeches, and
other places, for taking bait and fishing,
and for drying, curing and husbanding of
fish.


Proviso.


7. Provided always, That all such persons
as since the twenty-fifth day of
March one thousand six hundred eighty-five,
have built, cut out, or made, (or at
any time hereafter shall build, cut out, or
make), any houses, stages, cook-rooms,
train-fats, or other conveniences for fishing
there, that did not belong to fishing ships
since the said year one thousand six hundred
eighty-five, shall and may peaceably and
quietly enjoy the same to his or their own
use, without any disturbance of or from
any person or persons whatsoever.


By-boat keepers
not to
meddle with
house, stage,
etc. belonging
to any fishing
ships.


[viii]


8. And be it further enacted by the authority
aforesaid, That all and every person
or persons whatsoever, that shall go
over with their servants to Newfoundland, to
keep boats on a fishing voyage, commonly
called By-boat keepers, shall not pretend to
or meddle with any house, stage, cook-room,
train-fat, or other conveniency, that
did belong to fishing ships, since the year
one thousand six hundred eighty-five, or
shall be cut out or made by ships, from and
after the said twenty-fifth day of March,
one thousand seven hundred.


And to carry
two fresh men
in six. Inhabitant
obliged to imploy
two such
fresh men. Master of fishing
ship to
carry one
fresh man in
five: and make
oath thereof.
Certificate
gratis.


9. And be it further enacted by the
authority aforesaid, That every master of
a by-boat or by-boats shall carry with him
at least two fresh men in six, (viz.) one
man that hath made no more than one
voyage, and one man who hath never been
at sea before; and that every inhabitant
shall be obliged to employ two such fresh
men, as the by-boat keepers are obliged
for every boat kept by them; and further,
that all masters of fishing ships shall carry
with them, in their ship’s company, at
least one such fresh man that never was at
sea before, in every five men they carry;
and that the master of each such by-boat,
and each such fishing ship, shall make oath
before the collector, or other principal
officer of the customs of the port or ports
from whence such ship intends to sail, that
each ship and by-boat’s company have such
fresh men therein as this act directs; and
that the said officer or officers is and are[ix]
hereby impowered and required to administer
the aforesaid oath to the said masters
of ships and by-boats, and give a certificate
thereof under his hand, without any fee,
gratuity, or reward for so doing.


Every fifth
man a green-man.


10. And be it further enacted by the
authority aforesaid, That every master or
owner of any fishing ship going to Newfoundland
(after the said twenty-fifth day of
March), shall have in his ship’s company
every fifth man a green-man (that is to
say) not a seaman, or having been ever at
sea before.


Marks of
boats or train-fats
not to be
obliterated,
etc. without
consent of
owner.


11. And be it further enacted by the
authority aforesaid, That no person or
persons whatsoever shall at any time, after
the said twenty-fifth day of March, obliterate,
expunge, cut out, deface, or any
wise alter or change the mark or marks of
any boat or boats, train-fat, or train-fats,
belonging to any other person or persons,
whereby to defraud or prejudice the right
owner or owners thereof, nor convert to
his or their own use any boat or boats,
train-fat or train-fats, belonging to any
other person or persons, without his or
their consent and approbation, nor remove
nor take away any such boat or train-fat
from the place or places where they shall
be left by the owner or owners thereof,
except in case of necessity, and also upon
giving notice thereof to the admiral of the
harbour or place where such boat or train-fat[x]
shall be left by the owner or owners,
to the end that the right owners thereof
may know what is become of them.


Standing trees
not to be rinded,
nor woods
fired. Necessary fuel
excepted, etc. Sayns not to
be annoyed, nor nets,
baits, etc.
stolen.


12. And be it enacted by the authority
aforesaid, That no person or persons whatsoever
shall, at any time after the said
twenty-fifth day of March, rind any of the
trees there standing or growing upon any
occasion whatsoever, nor shall by any ways
or means whatsoever set on fire any of the
woods of the said country, or do, or
cause to be done, any damage, detriment,
or destruction to the same, for any use or
uses whatsoever, except only for necessary
fuel for the ships and inhabitants, and for
the building and necessary repairs of
houses, ships, boats, and train-fats, and of
the stages, cook-rooms, beeches, and other
places, for taking bait and fishing, and for
drying, curing, and husbanding fish there;
and also that no person or persons whatsoever
shall, at any time after the said
twenty-fifth day of March, cast anchor,
or do any other matter or thing, to the
annoyance or hindring of the haling of
sayns in the accustomary baiting places, or
shoot his or their sayn or sayns within or
upon the sayn or sayns of any other person
or persons whatsoever; and also that no
person or persons whatsoever shall, at any
time after the said twenty-fifth day of
March, steal, purloin, or take out of the
net or nets of any other person or persons
whatsoever, lying adrift, or drover for bait[xi]
by night, nor steal, purloin, or take away
any bait out of any fishing boat or boats,
or any net or nets belonging to any other
person or persons.


Robberies, etc.
in Newfoundland
may be
tried in any
county in
England, by
commission of
oyer and terminer.


13. And whereas several persons that have
been guilty of thefts, robberies, murders,
and other felonies, upon the land in Newfoundland,
and the islands thereunto adjacent,
have many times escaped unpunished,
because the trial of such offenders hath
heretofore been ordered and adjudged in
no other court of justice, but before the
Lord High Constable and Earl Marshal of
England; for reformation thereof, and for
the more speedy and effectual punishment
of such offences for the time to come, be
it enacted by the authority aforesaid, That
all robberies, murders, and felonies, and
all other capital crimes whatsoever, which,
at any time or times after the said twenty-fifth
day of March, shall be done and
committed in or upon the land in Newfoundland,
or in any of the Islands thereunto
belonging, shall and may be inquired
of, tried, heard, determined, and adjudged
in any shire or county of this kingdom of
England, by virtue of the King’s commission
or commissions of oyer and terminer,
and gaol delivery, or any of them, according
to the laws of this land used for
the punishment of such robberies, murders,
felonies, and other capital crimes done and
committed within this realm.


[xii]


Admirals in
Newfoundland
to see the rules,
etc. in this
act executed, keep a journal,
etc. and
deliver a copy
thereof to the
Privy Council.


14. And be it further enacted by the
authority aforesaid, That the admirals of
and in every port and harbour in Newfoundland,
for the time being, be and are
hereby authorised and required (in order
to preserve peace and good government
amongst the seamen and fishermen, as well
in their respective harbours, as on the
shore) to see the rules and orders in this
present act contained, concerning the regulation
of the fishery there, duly put in
execution; and that each of the said admirals
do yearly keep a journal of the
number of all ships, boats, stages, and
train-fats, and of all the seamen belonging
to and imployed in each of their respective
harbours, and shall also (at their return to
England) deliver a true copy thereof, under
their hands, to his Majesty’s most honourable
Privy Council.


Admirals to
determine
differences
between masters
of fishing
ships and inhabitants.
Party aggrieved
may appeal.


15. And be it further enacted by the
authority aforesaid, That in case any difference
or controversy shall arise in Newfoundland,
or the islands thereunto adjoining,
between the masters of fishing ships
and the inhabitants there, or any by-boat
keeper, for or concerning the right and
property of fishing rooms, stages, flakes, or
any other building or conveniency for fishing
or curing of fish, in the several harbours
or coves, the said differences, disputes,
and controversies, shall be judged
and determined by the fishing admirals, in
the several harbours and coves; and in[xiii]
case any of the said masters of fishing
ships, by-boat keepers, or inhabitants, shall
think themselves aggrieved by such judgement
or determination, and shall appeal to
the commanders of any of his Majesty’s
ships of war, appointed as convoys for
Newfoundland, the said commander is hereby
authorised and impowered to determine
the same, pursuant to the regulation in this
act.


Inhabitants to
observe the
Lord’s Day,
and not sell
any liquors
thereon.


16. And to the end that the inhabitants,
fishermen, seamen, and all and every other
person and persons residing or being at
Newfoundland, or any the said islands, or
other places, may with all devotion join
their solemn prayers and addresses to Almighty
God, for the obtaining of his
blessing upon their persons and endeavours;
be it hereby enacted, That all and every
the inhabitants of Newfoundland, or the
said islands or places adjacent near thereto,
shall strictly and decently observe every
Lord’s Day, commonly called Sunday, and
that none of the said inhabitants (who
keep any tavern, alehouse, or other publick
house for entertainment) shall entertain
or sell, vend, utter, or dispose of, to
any fisherman, seaman, or other person
whatsoever, upon any Lord’s Day or Sunday,
any wine, beer, ale, cyder, strong
waters, or tobacco, or any other liquor or
liquors whatsoever.


8 & 9 W. III.
c. 24.
9 & 10 W. III.
c. 23.
Whale fins,
oil, and blubber,
imported
by Greenland
merchants,
not liable to
the duty of
12d. per lb.
charged in the
tunnage acts,
nor for whale
fins, etc. taken
in Newfoundland.


17. And whereas by an act of Parliament,[xiv]
made in the eighth and ninth years
of his Majesty’s reign, intituled, An act
for granting to his Majesty a further subsidy
of tunnage and poundage upon merchandizes
imported, for the term of two years and three
quarters, and an additional land tax for one
year for carrying on the war against France;
and by another act, made in the ninth and
tenth years of his Majesty’s reign, intituled,
An act for granting to his Majesty a
further subsidy of tunnage and poundage, towards
the raising a yearly sum of seven hundred
thousand pounds, for the service of his
Majesty’s household, and other uses therein
mentioned, during his Majesty’s life, an additional
duty of twelve-pence on every
twenty shillings value of all goods and
merchandizes imported (all manner of fish
English taken excepted) is granted to his
Majesty, his heirs and successors: And
whereas some doubt hath arisen, whether
oil, blubber, and fins, taken and imported
by the company of merchants of London
trading to Greenland, are not liable to the
said duty; be it therefore enacted by the
authority aforesaid, That all whale fins, oil,
and blubber, taken and imported by the
ships of the company of merchants of London
trading to Greenland, were not nor are
intended to be charged or made liable to
the duty of twelve-pence for every twenty
shillings value of goods imported, charged
in the aforesaid acts, but that the whale
fins, oil, and blubber, taken and imported
as aforesaid, and also all whale fins, oil,[xv]
and blubber of English fishing, taken in
the seas of Newfoundland, or any of the
seas belonging to any of his Majesty’s
plantations or colonies, and imported into
this kingdom by any of his Majesty’s subjects
in English shipping, were, and are
hereby declared to be free of the said duties,
as all fish of English taking; the aforesaid
acts, or any thing therein contained
to the contrary in any-wise notwithstanding.




[xvi]


15 GEO. III. Cap. 31.




An act for the encouragement of the Fisheries
carried on from Great Britain, Ireland,
and the British Dominions in Europe,
and for securing the return of the
fishermen, sailors, and others employed
in the said fisheries, to the ports thereof,
at the end of the fishing season.




Preamble. After Jan. 1,
1776, bounties
to be
given to vessels
fitted out
from Great
Britain or Ireland
for the
Newfoundland
fishery,
qualified as by
act 10 & 11
Gul. III.
Certificates to
be produced
to the collector
of customs
from the governor
of
Newfoundland,
of the qualification
of
ships, &c.
Masters and
mates to
make oath.
Certificates
and oaths to
be granted
and administered
without
fee.
Collectors of
customs to
pay the bounties.


Whereas the fisheries carried
on by his Majesty’s subjects of
Great Britain, and of the British dominions
in Europe have been found to be the
best nurseries for able and experienced
seamen, always ready to man the royal
navy when occasions require; and it is
therefore of the highest national importance
to give all due encouragement to the
said fisheries, and to endeavour to secure
the annual return of the fishermen, sailors,
and others employed therein, to the ports
of Great Britain, and of his Majesty’s dominions
before-mentioned, at the end of
every fishing season: Now, in order to promote
these great and important purposes,
and with a view, in the first place,
to induce his Majesty’s subjects to proceed
early from the ports of Great Britain
to the banks of Newfoundland, and thereby
to prosecute the fishery on the said banks
to the greatest advantage, may it please
Your Majesty that it may be enacted;
and be it enacted by the King’s most excellent[xvii]
Majesty, by and with the advice
and consent of the Lords spiritual and
temporal, and Commons, in this present
Parliament assembled, and by the authority
of the same, That, from and after
the first day of January one thousand seven
hundred and seventy-six, the respective
bounties herein-after mentioned shall be
paid and allowed annually, for eleven
years, for a certain number of ships or
vessels employed in the British fishery on
the banks of Newfoundland, under the
limitations and restrictions herein-after expressed;
that is to say, such vessels shall
appear by their register to be British built,
and owned by his Majesty’s subjects residing
in Great Britain or Ireland, or the
islands of Guernsey, Jersey, or Man; and
be of the burthen of fifty tons or upwards,
and navigated with not less than fifteen
men each, three-fourths of whom, besides
the master, shall be his Majesty’s subjects;
and in other respects qualified, and subject
to the same rules and restrictions, as are
described by an act, made in the tenth
and eleventh years of the reign of the
late King William the third, (intituled,
An act to encourage the trade to Newfoundland);
and shall be fitted and cleared
out from some port in Great Britain after
the said first day of January one thousand
seven hundred and seventy-six, and
after that day in each succeeding year, and
shall proceed to the banks of Newfoundland;
and having catched a cargo of fish[xviii]
upon those banks, consisting of not less
than ten thousand fish by tale, shall land
the same at one of the ports on the southern
or eastern side of the island of Newfoundland,
between Cape Ray and Cape de
Grat, on or before the fifteenth day of
July in each year; and shall make one
more trip at least to the said banks, and
return with another cargo of fish catched
there to the same port; in which case,
the twenty-five vessels first arriving at the
said island of Newfoundland from the banks
thereof, with a cargo of fish catched there,
consisting of ten thousand fish by tale at
the least, and after landing the same at
one of the ports within the limits before
mentioned in Newfoundland, shall proceed
again to the said banks, and return
to the said island with another cargo of
fish, shall be intitled to forty pounds each;
and one hundred vessels which shall so
arrive the next in order of time, on or
before the said fifteenth day of July in
each year, at the said island, with a like
cargo, and shall proceed again to the said
banks, and return from thence in the
manner herein-before mentioned, shall be
intitled to twenty pounds each; and
one hundred other vessels which shall so
arrive the next in order of time, on or
before the said fifteenth day of July in
each year, at the said island, with a like
cargo, and shall proceed again to the said
banks, and return from thence in the
manner herein-before mentioned, shall be[xix]
intitled to ten pounds each, upon the
master or owner of such vessel’s producing
to the collector of his Majesty’s customs
at the port in Great Britain from whence
such vessel was cleared out a certificate,
under the hand and seal of the governor
of Newfoundland, that the master of such
vessel had produced to him a certificate
under the hands of the collector and
comptroller of the customs at the port
from whence such vessel was cleared out,
testifying that such vessel was duly qualified
to proceed on such fishery, in pursuance
of the before-mentioned act, made
in the tenth and eleventh years of King
William the third; and that it has been
made appear to his satisfaction, by a certificate
under the hand and seal of the
naval officer of the district in Newfoundland,
where such fish was landed, or
where there is no naval officer, under the
hand and seal of the commander of
any of his Majesty’s ships stationed there,
or of such officer as the governor shall
approve, specifying the time of such vessel’s
arrival, in manner before directed, that
such vessel was intitled by the priority
and time of her arrival to one or other of
the bounties therein mentioned, as the
fact may be; and that the master and
mate of such vessel had made oath before
such naval or other officer as aforesaid,
that the number of fish taken on the first
trip amounted to ten thousand at least by
tale, that he had made two trips at least,[xx]
and that all the fish on both trips were
catched on the banks of Newfoundland;
which certificate and oath the said governor
and naval or other officer as aforesaid
are hereby impowered and required to
grant and administer to the master and
mate of such vessel without fee or reward;
and upon delivering up the said certificate
to such collector, the respective bounties
therein mentioned shall be paid by such
collector out of any money remaining in
his hands arising by the duties of customs
or other subsidies upon foreign goods imported
into this kingdom; and in case
such collector shall not have sufficient
money in his hands to pay the said bounties,
he shall certify the same to the commissioners
of his Majesty’s customs in England
or Scotland respectively, who are
hereby authorised and required to order
the same to be paid by the receiver general
of the customs, out of any money in his
hands arising by any of the duties and
revenues under their management respectively.


Any part of
Newfoundland
not in use may
be used for
curing and
drying fish.


2. And be it further enacted by the
authority aforesaid, That for the better accommodation
of the persons belonging to
vessels employed in the Newfoundland fishery,
it shall and may be lawful for the
masters and crews belonging to any vessels
fitted out and employed in that fishery in
pursuance of this or any other act, to occupy
and use, for the purpose of curing,[xxi]
salting, drying, and husbanding their fish,
any vacant or void space whatever on any
part of Newfoundland which is not then
occupied and used for the said fishery, without
any let, disturbance, or hinderance,
from any person or persons whatsoever, although
such unoccupied places may not
before have been reputed ships rooms; and
all such unoccupied places shall from henceforth
be deemed and taken to be ships
rooms, any custom or usage to the contrary
notwithstanding.


What bounties
are to be
given to ships
fitted out for
the whale
fishery.
Masters and
mates making
oath, etc.
Receiver general
of his
Majesty’s customs
to pay
the bounties.


3. And in order to induce his Majesty’s
subjects in Great Britain and Ireland,
and the islands of Guernsey, Jersey, and
Man, to carry on the whale fishery on the
coasts of Newfoundland, and the seas adjacent,
be it further enacted by the authority
aforesaid, That the several bounties hereafter
mentioned shall be allowed annually,
for eleven years, for five vessels employed
in that fishery, under the limitations and
restrictions herein-after expressed; that is
to say, such vessels shall appear by their register
to be British built, and owned by his
Majesty’s subjects residing in Great Britain,
Ireland, or the islands of Guernsey, Jersey,
or Man, and navigated with three fourths
of his Majesty’s subjects of Great Britain,
Ireland, or the islands of Guernsey, Jersey,
or Man, besides the master, and shall be
fitted and cleared out from some port in
Great Britain or Ireland, or the islands of
Guernsey, Jersey, or Man, after the first[xxii]
day of January one thousand seven hundred
and seventy-six, and after that day in
each succeeding year, and shall take and
kill one whale at least in the Gulph of Saint
Lawrence, or on the coasts of Labrador,
Newfoundland, or in any seas to the southward
of the Greenland seas and Davis’s
Streights, and shall return within the same
year to some port in England with the oil
of such whale or whales so taken as aforesaid;
and on the master and mate of such
vessel, and two of the mariners belonging
to her, making oath before the collector
and comptroller of the customs at the port
of her arrival (which oath they are hereby
authorised and required to administer), that
such oil is the produce of one or more
whale or whales taken and killed by the
crew then belonging to such vessel, mentioning
the time when she departed from
Great Britain, Ireland, or the islands of
Guernsey, Jersey, or Man, and from what
port, and the time and place where such
whale or whales was or were taken and
killed, such oil may be landed without
payment of any duty whatsoever; and the
collector and comptroller of such port
shall thereupon forthwith transmit such
oath to the commissioners of his Majesty’s
customs at London, any four or more of
whom are hereby authorised and required
to order the receiver general of his Majesty’s
customs to pay, out of any money
in his hands arising by any duties under
their management, for the vessel which shall[xxiii]
so arrive in each year with the greatest
quantity of oil taken as aforesaid, five
hundred pounds; for the vessel which shall
in like manner arrive in the same year with
the next greatest quantity of oil so taken
as aforesaid, four hundred pounds; for the
vessel which shall in like manner arrive in
the same year with the next greatest quantity
of oil so taken as aforesaid, three hundred
pounds; for the vessel which shall in
like manner arrive in the same year with
the next greatest quantity of oil so taken
as aforesaid, two hundred pounds; and
for the vessel which shall so arrive in the
same year with the next greatest quantity
of oil so taken as aforesaid, one hundred
pounds; the said oil so to be imported by
each of the said vessels being the produce of
one whale at the least; which said several
and respective bounties shall be paid by
such receiver general, within two months
after the expiration of each year in which
such vessel shall arrive, to the owner or
owners of such vessels so intitled thereto,
or their assigns duly authorised to demand
the same.


What persons
are intitled to
the privilege
of drying fish
on the banks
of Newfoundland.


4. And in order to obviate any doubts
that have arisen, or may arise, to whom
the privilege or right of drying fish on the
shores of Newfoundland does or shall belong,
under the before mentioned act,
made in the tenth and eleventh year of the
reign of King William the third, which
right or privilege has hitherto only been[xxiv]
enjoyed by his Majesty’s subjects of Great
Britain, and the other British dominions
in Europe; be it enacted and declared by
the authority aforesaid, That the said right
and privilege shall not be held and enjoyed
by any of his Majesty’s subjects arriving at
Newfoundland from any other country except
from Great Britain, or one of the
British dominions in Europe.


Provisions,
and all necessaries
for fishing
may be exported
from
Ireland and
the Isle of Man,
to Newfoundland,
being
British or Irish
product or
manufacture.


5. And it is hereby further enacted by the
authority aforesaid, That it shall and may
be lawful for any of his Majesty’s subjects
residing in Ireland to ship and lade there,
and to transport directly from thence to
Newfoundland, or to any part of America
where the fishery is now or shall hereafter
be carried on, on board any ship or vessel
which may lawfully trade or fish there, any
provisions, and also any hooks, lines,
netting, or other tools or implements necessary
for and used in the fishery by the
crews of the ships or vessels carrying out
the same, and the craft belonging to and
employed by such ships or vessels in the
said fishery, such provisions, hooks, lines,
netting, or other tools or implements, being
the product and manufacture of Great
Britain or Ireland, and that it shall and
may be lawful for any of his Majesty’s subjects
residing in the Isle of Man, in like
manner to export directly from thence any
of the articles herein-before mentioned for
the purpose aforesaid, such articles being
the product or manufacture of Great Britain,[xxv]
or the said Isle of Man, any law,
custom, or usage, to the contrary notwithstanding.


Masters of vessels
to produce
certificates
from the officer
of customs,
that the provisions,
&c. are
the product,
&c. of Great
Britain or Ireland. On failure,
&c. the ship to
be forfeited.


6. Provided always, and it is hereby
further enacted by the authority aforesaid,
That the master or other person taking
charge of such ship or vessel shall produce
to the proper officer of the customs
in the colony or plantation where he
shall arrive a certificate, under the hand
and seal of the collector or other principal
officer of the customs in the port where he
shall have fitted out, that oath hath been
made before him by the shipper of such
provisions, hooks, lines, netting, or other
tools and implements, that the same are of
the product and manufacture of Great Britain
or Ireland, or the Isle of Man respectively,
as the fact may be, and that the
several articles before mentioned, (except
the provisions), specifying the quantities
and particulars of each sort, are to be used
in the fishery by the crews of the respective
ship or vessel carrying out the same, and by
the craft belonging to and to be employed
by such ship or vessel in the said fishery,
and for no other use or purpose whatsoever,
(which oath and certificate such collector
or other officer is hereby authorised
and required to administer and grant without
fee or reward); and on failure of producing
such certificate, or if any such
hooks, lines, netting, tools and implements,
are used or disposed of for any other[xxvi]
purpose, the same, and the ship or vessel
having the same on board, shall be liable
to be seized and forfeited in the same manner
as they would have been subject and
liable if this act had not been made, any
thing herein contained to the contrary notwithstanding.


No fishing
ships, or any
craft carrying
necessaries for
the fishery, to
be liable to
any restraint
as to time of
working, nor to make
any entry at
the customhouse,
&c.


7. And it is hereby further enacted by
the authority aforesaid, That, from and after
the first day of January one thousand seven
hundred and seventy-six, all vessels fitted
and cleared out as fishing ships in pursuance
of this act, or of the before-mentioned
act, made in the tenth and eleventh years
of the reign of the late King William the
third, and which shall be actually employed
in the fishery there, or any boat or craft
whatsoever employed in carrying coastwise,
to be landed or put on board any ships or
vessels, any fish, oil, salt provisions, or other
necessaries, for the use and purpose of that
fishery, shall not be liable to any restraint
or regulation with respect to days or hours
of working, nor to make any entry at the
customhouse at Newfoundland, except a report
to be made by the master on his first
arrival there, and at his clearing out from
thence; and that a fee not exceeding two
shillings and sixpence shall and may be taken
by the officers of the customs at Newfoundland
for each such report; and that no
other fee shall be taken or demanded by
any officer of the customs there, upon any[xxvii]
other pretence whatsoever, relative to the
said fishery, any law, custom, or usage, to
the contrary notwithstanding.


If ships have
on board any
other goods
than fish or oil,
&c. they shall
be under the
usual restrictions,
&c.


8. Provided always, and be it enacted,
That in case any such fishing ship or vessel
shall at her last clearing out from the said
island of Newfoundland have on board, or
export any goods or merchandise whatsoever,
except fish, or oil made of fish, such
ship or vessel, and the goods thereon laden,
shall be subject and liable to the same securities,
restrictions, and regulations, in
all respects, as they would have been subject
and liable to if this act had not been
made, any thing herein-before contained to
the contrary notwithstanding.


Act 25 Car. II.
allowing train
oil, &c. to be
imported
duty-free, recited,
and after Sept.
1, 1775, extended
to all
ships belonging
to Great
Britain, Ireland,
Guernsey,
&c.


9. And whereas by an act, made in the
twenty-fifth year of the reign of King
Charles the second, (intituled, An act for
the encouragement of the Greenland and
Eastland Trades, and for the better securing
the plantation trade), and by other acts of
parliament, it is lawful for any person or
persons to import into England train oil or
blubber of Greenland, and parts adjacent,
and those seas, or of Newfoundland, or of
any other his Majesty’s colonies and
plantations, made of fish, or of any other
creature living in the seas, and whale fins
caught in any ships or vessels truly and
properly belonging to England or Wales,
or town of Berwick upon Tweed, and imported
in such ships, without paying any[xxviii]
custom or duty for the same, which liberty,
by a subsequent act of parliament, is extended
to ships belonging to Great Britain;
and it is reasonable that the same indulgence
should be extended to oil and blubber of
fish, and other creatures living in the sea,
and to whale fins caught in any part of the
ocean by ships belonging to Great Britain,
Ireland, and the islands of Guernsey, Jersey,
and Man; be it therefore enacted by the
authority aforesaid, That, from and after
the first day of September one thousand seven
hundred and seventy-five, the liberty
granted by the said act to import into this
kingdom oil or blubber of fish, or other
creatures living in the sea, or whale fins
taken within the limits therein mentioned,
duty-free, shall extend, and be construed to
extend, to such oil or blubber, or whale
fins, as shall be so taken in any part of the
ocean by, and imported in any ship or vessel
truly and properly belonging to his Majesty’s
subjects of Great Britain, Ireland, or
the islands of Guernsey, Jersey, or Man,
any law, custom, or usage, to the contrary
notwithstanding.


After Sept. 1,
1775, undressed
seal skins
may be imported
duty-free.


10. And it is hereby further enacted by
the authority aforesaid, That, from and
after the first day of September one thousand
seven hundred and seventy-five, it shall and
may be lawful for any person or persons to
import into this kingdom any raw and undressed
seal skins taken and caught by the
crews of vessels belonging to and fitted out[xxix]
either from Great Britain, Ireland, or the
islands of Guernsey, Jersey, or Man respectively,
and whereof the captain or master
and three-fourths at the least of the mariners
are his Majesty’s subjects, or by persons
employed by the masters or owners of
such vessels, without paying any custom,
subsidy, or other duty for the same, any law
or usage to the contrary notwithstanding.


Not to extend
to any seal
skins except
those imported
by ships qualified
as aforesaid, and duly entered
at the
customhouse,
&c.


11. Provided always, That nothing in
this act shall extend, or be construed
to extend, to give liberty of importing
any such seal skins duty-free, unless
the captain or person having the charge or
command of such ship or vessel importing
the same shall make oath before the collector
or other principal officer of the customs
at the port of importation, (who is
hereby authorised and required to administer
such oath), that all the skins imported
in such ship or vessel were really and bona
fide the skins of seals taken and caught by
the crews thereof, or by persons employed
by the master or owner of such ship or vessel,
or of some other ship or vessel qualified
as aforesaid; and such seal skins shall be also
duly entered at the customhouse for the
said port, and landed in the presence of the
proper officer or officers of the customs appointed
for that purpose; and on failure
of any of these conditions, such skins shall
be liable to pay the same duties as they
would have been subject and liable to if
this act had not been made, any thing[xxx]
herein contained to the contrary notwithstanding.


No shipmaster
to carry any
fishermen, &c.
as passengers
to any part of
the continent
of America
without permission, under the penalty
of 200l.


12. And whereas it has been a practice
of late years for divers persons to seduce
the fishermen, sailors, artificers, and
others employed in carrying on the fishery,
arriving at Newfoundland, on board fishing
and other vessels from Great Britain, and
the British dominions in Europe, to go
from thence to the continent of America,
to the great detriment of the fishery, and
the naval force of this kingdom: Now, in
order to remedy the said evil, and to secure
the return of the said fishermen,
sailors, artificers, and others, employed as
aforesaid, to the British dominions in Europe,
be it further enacted by the authority
aforesaid, That, from and after the first day
of January one thousand seven hundred
and seventy-six, it shall not be lawful for
the master, or person having the charge or
command of any ship or vessel trading to
or from any place within the government
of Newfoundland, to carry or convey, as
passengers, any such fishermen, sailors,
artificers, and others, employed as aforesaid,
from thence to any part of the continent
of America, without the permission
under the hand and seal of the governor of
the said island of Newfoundland, under the
penalty of forfeiting two hundred pounds
for every such offence.


Regulations
for persons
employing seamen or
fishermen at
Newfoundland.


13. And whereas in several acts, passed
in the eleventh and twelfth years of William[xxxi]
the third, the eighth of George the first,
and second and twelfth of George the second,
provision has been made to prevent
seamen and mariners in the merchant service
being wilfully left beyond sea, and to
secure and provide for their return home
to such part of his Majesty’s dominions
whereto they belong: and whereas, for
want of such provisions being extended to
seamen and fishermen going out as passengers
to Newfoundland, and hired and
employed in the fisheries carried on there,
great numbers of them remain in that
country at the end of every fishing season,
who would otherwise return home, and
some of them have frequently turned robbers
and pirates; for remedy of which evil,
be it enacted by the authority aforesaid,
That no person or persons whatsoever shall,
from and after the first day of January one
thousand seven hundred and seventy-six,
employ, or cause to be employed at Newfoundland,
for the purpose of carrying on
the fishery there, any seaman or fisherman
going as passengers, or any seaman or fisherman
hired there, without first entering into
an agreement or contract in writing with
every such seaman or fisherman, declaring
what wages such seaman or fisherman is to
have, and the time for which he shall serve,
which shall be signed by both parties;
wherein it shall be stipulated (amongst other
things) that the person so hiring or employing
shall be at liberty to reserve, retain,
and deduct, and he is hereby authorised,[xxxii]
required, and directed to reserve, retain,
and deduct, out of the wages of every
person so hired or employed, a sum of
money equal to the then current price of a
man’s passage home, not exceeding forty
shillings for each man, which money such
hirer or employer shall, at the end of each
fishing season, or at the expiration of the
covenanted time of service of such seaman
or fisherman, pay, or cause to be paid, to
the master of a passage or other ship, who
shall undertake or agree to carry such seaman
or fisherman home to the country
whereto he belongs, and shall also convey
such seaman or fisherman to and on board
such passage or other ship, taking the
master’s receipt for the passage money,
which receipt he shall immediately
thereupon deliver to such seaman or
fisherman.


Employers to
pay to fishermen,
&c. only
half of their
wages, and the
other half in
bills, etc. at
their return
home.
Penalty on
employers neglecting
to
comply.


14. And be it further enacted by the
authority aforesaid, That no hirer or employer
of any such seaman or fisherman
shall pay or advance, or cause to be paid
or advanced, to such seaman or fisherman,
in money, liquor, and goods, or either of
them, during the time he shall be in his
service, more than one half of the wages
which shall at any time be due to him; but
such hirer or employer shall, and is hereby
required and directed, immediately at or
upon the expiration of every such man’s
covenanted time or service to pay either in
money, or in good bills of exchange, payable[xxxiii]
either in Great Britain or Ireland, or
in the country to which such seaman or
fisherman belongs, the full balance of his
wages, except the money herein-before directed
to be retained for his passage home;
and it shall not be lawful for any such
hirer or employer to turn away or discharge
any such seaman or fisherman, except
for wilful neglect of duty, or other
sufficient cause, before the expiration of
his covenanted time of service; and in case
the hirer or employer of any such seaman
or fisherman shall refuse or neglect to comply
with any of the terms herein-before
mentioned, or shall otherwise offend against
this act, every such person so offending
shall forfeit and pay, for every such offence,
besides the balance that shall be due to
such seaman or fisherman, the money herein-before
directed to be retained for his
passage home, the sum of ten pounds, to
the use of such person or persons who shall
inform or sue for the same.


If any dispute
arise, employers
obliged to
produce the
contract.


15. And be it further enacted by the
authority aforesaid, That in all cases where
disputes shall arise concerning the wages of
any such seaman or fisherman, the hirer or
employer shall be obliged to produce the
contract or agreement in writing, herein-before
directed to be entered into with
every such seaman or fisherman.


All fish and
oil liable to
the payment
of wages.


16. And be it further enacted by the
authority aforesaid, That all the fish and[xxxiv]
oil which shall be taken and made by the
person or persons who shall hire or employ
such seaman or fisherman shall be subject
and liable, in the first place, to the payment
of the wages of every such seaman
or fisherman.


Penalty on
seamen or
fishermen absenting
themselves
from
their employers
without
leave.


17. And be it further enacted by the
authority aforesaid, That in case any such
seaman or fisherman shall at any time wilfully
absent himself from his duty or employ,
without the leave and consent of his
hirer or employer, or shall wilfully neglect
or refuse to work according to the true
intent and meaning of such contract or
agreement, he shall, for every day he shall
so absent himself, or neglect or refuse to
work as aforesaid, forfeit two days pay to
such hirer or employer; and if any such
seaman or fisherman shall wilfully absent
himself from his said duty or employ for
the space of five days, without such leave
as aforesaid, he shall be deemed a deserter,
and shall forfeit to such hirer or employer
all such wages as shall at the time of such
desertion be due to him, (except so much
as is herein-before directed to be reserved
and retained for the purpose of paying his
passage home); and it shall and may be
lawful to and for the governor of Newfoundland,
or his surrogates, or the commissary
of the vice admiralty court for the
time being, or for any justice of the peace
in Newfoundland, to issue his or their warrant
or warrants to apprehend every such[xxxv]
deserter, and on the oath of one or more
credible witness or witnesses to commit him
to prison, there to remain until the next
court of session which shall be holden in
pursuance of the commission of the said
governor for the time being; and if found
guilty of the said offence at such session, it
shall and may be lawful to and for the said
court of session, to order such deserter to
be publickly whipped as a vagrant, and
afterwards to be put on board a passage
ship, in order to his being conveyed back
to the country whereto he belongs.


Disputes, and
all offences,
to be determined
by the
court of session,
etc. at
Newfoundland.


18. And be it further enacted by the
authority aforesaid, That all disputes which
shall arise concerning the wages of every
or any such seaman or fisherman, and all
offences which shall be committed by every
hirer or employer of such seaman or fisherman,
against this act, shall and may be enquired
into, heard, and determined, and
the penalties and forfeitures thereby incurred
shall and may be recovered in the
court of session herein-before mentioned,
or in the court of vice admiralty having
jurisdiction in the said island of Newfoundland.


Act 6 Anne,
respecting sailors
employed
in trading
ships, etc. in
America not
liable to be
impressed, repealed.


19. And whereas by an act of parliament,
passed in the sixth year of the reign
of her late Majesty Queen Anne, intituled,
An act for the encouragement of the trade to
America, it is amongst other things enacted,[xxxvi]
That no mariner or other person
who shall serve on board, or be retained to
serve on board any privateer, or trading
ship or vessel, that shall be employed in
any part of America, nor any mariner or
other person being on shore in any part
thereof, shall be liable to be impressed or
taken away by any officer or officers of or
belonging to any of her Majesty’s ships
of war, impowered by the lord high admiral,
or any other person whatsoever, unless
such mariner shall have before deserted
from such ship of war: and whereas the
said privilege or exemption so given by the
said act to mariners serving on board ships
or vessels employed in any of the seas or
ports of the continent of America, or residing
on shore there, is prejudicial to the
fisheries carried on by his Majesty’s subjects
of Great Britain and Ireland, and
others his Majesty’s dominions in Europe,
and has proved an encouragement to mariners
belonging thereto to desert in time
of war, or at the appearance of a war, to
the British plantations on the said continent
of America; be it therefore enacted
by the authority aforesaid, That the said
clause, so far as it relates to the exempting
of mariners or other persons serving, or
retained to serve, in any ship or vessel in
the seas or ports of the continent of America,
or other persons on shore there, from
being impressed, be and the same is hereby
repealed.


[xxxvii]


Rum, &c.
imported into
Newfoundland
from America,
to pay a duty
of 1s. per
gallon. How such
duty is to be
collected,
recovered,
and applied.


20. And whereas the immoderate use
of rum and other spirits, imported into
Newfoundland from his Majesty’s colonies
and plantations in America has been found
to be highly detrimental to the fisheries
carried on there, and it is therefore proper
to endeavour to diminish the consumption
thereof; be it enacted by the
authority aforesaid, That, from and after
the first day of January one thousand
seven hundred and seventy-six, there shall
be paid in to his Majesty, his heirs and
successors, for every gallon of rum, or
other spirits, which shall be brought or
imported into the island of Newfoundland
from any British colony or plantation on
the continent of America, the sum of one
shilling sterling money of Great Britain;
and the same shall be collected, recovered,
and paid, to the amount of the value of
which such nominal sum bears in Great
Britain, and may be received and taken
according to the proportion and value of
five shillings and sixpence the ounce in
silver; and the said duty hereby granted
shall be raised, levied, collected, paid,
and recovered, in the same manner and
form, and by such rules, ways, and means,
and under such penalties and forfeitures,
except in such cases where any alteration
is made by this act, as any other duties
payable to his Majesty upon goods imported
into any British colony or plantation
in America are raised, levied, collected,
paid, and recovered, by any act or[xxxviii]
acts of parliament, as fully and effectually,
to all intents and purposes, as if the several
clauses, powers, directions, penalties
and forfeitures relating thereto, were
particularly repeated and again enacted
in the body of this present act; and that
all the monies that shall arise by the said
duty, (except the necessary charges of
raising, collecting, levying, recovering,
answering, paying, and accounting for
the same), shall be paid into the receipt
of his majesty’s exchequer, and applied
and appropriated to the same uses and
purposes as the duties arising by that part
of the customs, commonly called The Old
Subsidy, payable in Great Britain, are
applied and appropriated.


After Dec. 25,
1775, bounties
granted by
Act 11 Geo. III.
extended to
Ireland.
Officers to
certify that
ships are
properly fitted
out, before
they proceed
on their
voyage.
Commissioners
of the
revenues in
Ireland, on
receiving such
certificates,
to grant licence,
&c.


21. And whereas the bounties given
by an act of parliament made in the eleventh
year of the reign of his present Majesty,
intituled, An act for the better support
and establishment of the Greenland and
whale fisheries, have been found of great
advantage to the navigation, trade, and
manufactures of this kingdom; and it is
just and expedient that the like bounties
which are granted by that act to ships
fitted out from Great Britain, or any of
his Majesty’s dominions in America, for
those fisheries, should, in like manner, be
granted to ships fitted out for that purpose
from the kingdom of Ireland; be it therefore
enacted by the authority aforesaid,
That, from and after the twenty-fifth day of[xxxix]
December one thousand seven hundred and
seventy-five, the respective bounties herein-after
mentioned shall be allowed for
every ship or vessel British-built, and
owned by his Majesty’s subjects of Ireland,
and whereof the captain or master and at
least one-third of the mariners are his Majesty’s
subjects of Great Britain or Ireland,
which shall proceed from any port in the
said kingdom of Ireland, within the time
limited by this act on the whale fishery to
the Greenland seas, and Davis’s Streights,
and the adjacent seas, under the several
rules and restrictions, herein-after expressed;
that is to say, every such ship or
vessel, before she proceeds on such voyage,
shall be visited by the proper officer or officers
of the customs belonging to such port,
who shall examine into such ship or vessel,
and take an account of the tonnage thereof
by admeasurement, and shall certify such
his or their visitation, examination, and
admeasurement, to the commissioners of
his Majesty’s revenue in Ireland; and if it
appears by the certificate of such officer or
officers that she hath on board such a
number of men, provisions, boats, fishing
lines, and instruments to be used in such
fishery as herein-after are mentioned; that
she is strongly built, and otherwise a proper
ship for such voyage and fishery, and
hath on board among her crew a sufficient
number of harpooners, steersmen, and
line-managers, who have been before employed
in such voyages, (the names of[xl]
such persons to be contained in such certificate);
and if it further appears by the
oath of one or more owner or owners,
and of the master or chief officer of such
ship, written at the foot of such certificate,
and made before the collector or comptroller
of such port, (who are hereby impowered
and required to administer the
same), that it is really and truly their
firm purpose and determined resolution,
that such ship shall, as soon as licence
shall be granted, forthwith proceed, so
manned, furnished, and accoutered, on a
voyage to the Greenland Seas, or Davis’s
Streights, or the seas adjacent, and there,
in the then approaching season, to use
the utmost endeavours of themselves and
their ship’s company to take whales, or
other creatures living in the sea, and on
no other design or view of profit in such
voyage, and to import the whale fins,
oil, and blubber thereof, into the kingdom
of Great Britain, (naming the port
to which it is their intention to return);
and if the master, after such certificate
had, and oath made, do also become
bound, with two sufficient securities, unto
his Majesty, his heirs and successors, in
the penalty of such sum as shall be equal
to treble the bounty intended by this act,
(which bond the said collector, with the
approbation of the comptroller, is hereby
required to take, and is to be in force for
the term of three years against the master
and sureties for the faithful dealings of the[xli]
said master and ship’s company in regard
to the said ship and voyage); then, and
in all such cases, it shall and may be lawful
for any three or more of the said commissioners
of the revenues in Ireland for
the time being, on receiving such certificates
and oaths made, and it being certified
to them by the collector and comptroller
of such port, that sufficient security hath
been given as aforesaid, to give and grant,
and they are hereby required to give and
grant to the master and owners of such
ship, full licence and authority to proceed
on such voyage as aforesaid.


What number
of men, lines,
boats, &c.
ships of certain
dimensions
shall have
on board.


22. And to prevent any disputes that
may arise whether a ship be properly qualified
and duly fitted out for the whale
fishery, according to the true intent and
meaning of this act, and intitled to a
certificate thereof from the custom-house
officers, it is hereby enacted, That every
ship of the burthen of two hundred tons,
designed for this fishery, shall and is
hereby obliged to have on board forty
fishing lines of one hundred and twenty
fathom each, forty harpoon irons, four
boats with seven men, including a harpooner,
a steersman, and a line manager,
to each boat, making in the whole twenty-eight
men besides the master and surgeon,
with six months provision at the least for such
number of men; and every ship of larger
burthen an increase of six men, one boat,
ten such lines, and ten harpoon irons[xlii]
more, for every fifty tons above the
said two hundred tons, together with provisions
in proportion; and every ship
which shall be so employed in the said
fishery shall have on board an apprentice,
indentured for the space of three years at
the least, for every fifty tons burthen, who
shall be accounted as one of the number
of men required to be on board such ship
as aforesaid.


On return of
ships, proper
officers to go
on board, and
inspect the
cargo, &c.
and take an
account of
the names of
the masters,
harpooners,
&c.
Commissioners
being
satisfied of the
faithful dealings
of the
master, &c.
to pay the
bounties as
directed, according
to the
admeasurement
of the
ships.


23. And be it further enacted by the
authority aforesaid, That on the return of
such ship to the port to which the master
and mate declared on oath their intention
to return, the proper officers of the
customs at such port shall immediately
repair on board, and view the condition
of such ship and her lading, and certify
the same, together with their observations
thereon, as also of the real tonnage of the
said ship; and the said officers are also to
take an account or schedule of the names
of the master, mate, and other persons
on board, distinguishing therein the harpooners
and persons more immediately
employed in the said fishery, and to certify
the same; and the master and mate
shall make oath before the collector and
comptroller, (who are hereby impowered
and required to administer the same), on
the back of, or annexed to the licence
granted as aforesaid, which they are hereby
then required to deliver up, that they
did in pursuance thereof, mentioning the
day of their departure, proceed on a[xliii]
voyage directly to the places aforesaid, and
have not since been on any other voyage,
or pursued any other design or view of
profit; and that they did there (mentioning
the time of their stay in those seas)
use the utmost endeavour of themselves
and their ship’s company to take whales,
and other creatures living in those seas;
and that all the whale fins, oil, and blubber,
imported (if any) in such ship, was
really and bona fide caught and taken in
the said seas by the crew of such ship only,
or with the assistance of the crew of some
other ship duly licensed for that voyage,
pursuant to the directions of this act; all
which schedule, certificate, licence, and
oath, shall be transmitted by the collector
and comptroller of such port to the respective
commissioners of the customs for that
part of Great Britain where such ships shall
arrive; and such commissioners being fully
satisfied of the faithful dealings of the
master and other persons employed in such
ships with respect to such voyage and fishery,
shall, on demand, cause payment to be
made to the master or owners, or to his or
their assigns, by the receiver general of
the customs for that part of Great Britain
where such ship shall arrive, the bounty
or premium following, according to the
admeasurement of such ship duly certified
as aforesaid; (that is to say), for every
such ship as shall proceed on the said fishery,
from the twenty-fifth day of December
one thousand seven hundred and seventy-five,[xliv]
to the twenty-fifth day of December
one thousand seven hundred and seventy-six,
the sum of forty shillings per ton;
and for every such ship as shall proceed on
the said fishery from the twenty-fifth day
of December one thousand seven hundred
and seventy-six, to the twenty-fifth day of
December one thousand seven hundred and
eighty-one, the sum of thirty shillings per
ton; and for every such ship as shall proceed
on the said fishery from the twenty-fifth
day of December one thousand seven
hundred and eighty-one, to the twenty-fifth
day of December one thousand seven
hundred and eighty-six, the sum of twenty
shillings per ton.


Certain provisoes
respecting
ships
before any
person be
intitled to the
bounty.


24. Provided always, and it is hereby
further enacted by the authority aforesaid,
That no person or persons shall be allowed
or intitled to receive the bounty herein-before
granted, for any ship which shall
proceed on the said whale fishery after the
twenty-fifth day of December one thousand
seven hundred and seventy-five, unless such
ship shall sail from the port where she shall
be surveyed, and cleared directly on her
intended fishery, on or before the tenth
day of April in each and every year, and
shall continue with her crew in the Greenland
seas, or Davis’s Streights, or the adjacent
seas, diligently endeavouring to catch
whales, or other creatures living in those
seas, and shall not depart from thence before
the tenth day of August then following,[xlv]
unless such ship shall be laden with
the blubber and fins of one whale, caught
by the crew thereof, or with the assistance
of the crew of some other licensed ship,
before that time, or shall be forced by some
unavoidable accident or necessity to depart
sooner from those seas; which accident or
necessity shall be verified on the oaths of
the master and mate belonging to such
ship, upon her return from the said fishery,
before the collector and comptroller of the
customs at the port where she shall arrive,
who shall transmit the same, together with
the schedule, licence, and other documents
by this act required, to the respective commissioners
of the customs for that part of
Great Britain where she shall arrive.


If monies
arising from
the old subsidy
be not sufficient
to pay
bounties, any
other revenue
money
may be taken.


25. And be it further enacted by the
authority aforesaid, That it shall and may
be lawful to and for the commissioners of
the customs in England and Scotland respectively
to order the respective receivers
general of the customs, in case the monies
remaining in their hands arising from the
old subsidy shall not be sufficient at any
time or times, during the continuance of
this act, to satisfy the said bounty of forty
shillings per ton, and thirty shillings per
ton, and twenty shillings per ton, during
the several periods herein-before limited,
payable on all ships employed in the said
fishery, according to the directions of this
present act, to pay the same out of any
money that shall be in their hands arising[xlvi]
from any of the duties and revenues under
their management respectively.


Commissioners,
at the
beginning of
every session
of parliament,
to lay before
them an account
of the
ships employed
in the
whale fishery,
etc.


26. And be it further enacted by the
authority aforesaid, That the commissioners
of his Majesty’s customs in England and
Scotland respectively shall, at the beginning
of every session of parliament, lay before
both houses of parliament an account in
writing, under their hands, of what number
of ships employed in the whale fishery
to Davis’s Streights and the Greenland seas,
in pursuance of this act, with their respective
names and burthens, have returned to
Great Britain, and at what port in Great
Britain they were discharged, and also what
quantity of oil, blubber, or whale fins, each
ship shall have imported, and from what
port in Ireland or the Isle of Man they were
fitted out.


Ships under
200 tons
intitled to a
bounty proportionable
to
their admeasurement.


27. And whereas it hath been found by
experience, that ships under the burthen of
two hundred tons are fit for the said fishery;
be it therefore enacted and declared
by the authority aforesaid, That every
owner or owners of any ship or ships under
the burthen of two hundred tons, which
shall be employed in the said fishery, who
have conformed themselves in all respects
to the rules and directions herein-before
prescribed to the owners of ships of two
hundred tons, shall be intitled to the said
bounty, as herein-before limited, according[xlvii]
to the admeasurement of such ship or ships
respectively.


Ships above
400 tons not
intitled to a
larger bounty
than a 400
ton ship;
and owners
not obliged to
equip, etc.
more than a
ship of 400
tons.


28. Provided always, and be it enacted
by the authority aforesaid, That no ship to
be employed in the said fishery, although
she be above the burthen of four hundred
tons, shall be intitled to a larger bounty
than a ship of four hundred tons would be
intitled to.


29. Provided also, That nothing in this
present act contained shall extend, or be
construed to extend, to oblige the owner
or owners of any ship above the burthen
of four hundred tons, in order to intitle
him or them to the said bounty, to fit out,
equip, and man, any such ship, otherwise
than as a ship of the burthen of four hundred
tons only is, by this present act, required
to be fitted out, equipped, and manned.


No apprentice,
when
indentured, to
exceed 18, nor
be under 14
years;
and no bounty
to be paid
unless ships
employed belong
to some
of his Majesty’s
subjects
where fitted
out.


30. Provided also, and it is hereby further
enacted by the authority aforesaid,
That every apprentice indentured after the
twenty-fifth day of December one thousand
seven hundred and seventy-five, to serve on
board any ship or vessel proceeding on the
fisheries, in pursuance of this or any other
act of parliament now in force, granting
any bounty or bounties thereon, shall not
exceed the age of eighteen years, nor be
under fourteen, at the time he shall be so
indentured; and that no bounty shall be[xlviii]
allowed or paid for any ship or vessel so
employed, either by virtue of this or any
former act of parliament, unless the whole
and entire property of such ship or vessel
shall belong to some of his Majesty’s subjects
residing in that part of his Majesty’s
dominions from whence such ship or vessel
shall be respectively fitted and cleared out,
any law, custom, or usage, to the contrary
notwithstanding.


Bounties may
be insured.


31. And to prevent any application to
parliament for the bounty on any ship employed
in either of the fisheries before
mentioned, which may happen to be lost at
sea before their return to Great Britain, be
it declared and enacted by the authority
aforesaid, That it shall and may be lawful
for the owner or owners of any ship, employed,
or designed to be employed, in the
said fisheries, or either of them, to insure
the bounty which such owner or owners
would have been intitled to upon the return
of such ship to Great Britain, on the
performance of all other matters directed
and appointed by this present act to be
performed for obtaining the said bounties.


Persons giving
false certificates,
etc. to
forfeit 500l.


32. And it is hereby further enacted by
the authority aforesaid, That if any person
or persons shall give or grant any false
certificate for any of the purposes required
or directed by this act, such person or persons
shall forfeit the sum of five hundred[xlix]
pounds, and be rendered incapable of
serving his Majesty, his heirs or successors,
in any office whatsoever; and if any person
or persons shall counterfeit, erase, alter,
or falsify, any certificate required or directed
by this act, or shall knowingly or willingly
make use of any false certificate, or
of any certificate so counterfeited, erased,
altered, or falsified, such person or persons
shall, for every such offence, forfeit the sum
of five hundred pounds: and every such
certificate shall be invalid, and of no effect.


Forfeitures,
how to be applied.


33. And it is hereby further enacted by
the authority aforesaid, That one moiety
of the penalties and forfeitures inflicted
by this act (except in such cases where
other directions are given by this act) shall
be to the use of his Majesty, his heirs
and successors, and the other moiety to
such officer or officers of the customs as
shall sue or prosecute for the same in any
of his Majesty’s courts of record at Westminster
or Dublin, or in the court of exchequer
in Scotland, or in any court of admiralty,
having jurisdiction in his Majesty’s
colonies or islands respectively, where the
offence shall be committed.


Forfeitures
incurred in
Newfoundland
to be sued for
in the vice admiralty
court
in said island.
Persons aggrieved
may
appeal to the
proper admiralty
court in
Britain.


34. And be it further enacted by the
authority aforesaid, That, from and after
the first day of January one thousand seven
hundred and seventy-six, the penalties and
forfeitures inflicted by any act of parliament
relating to the trade or revenues of the[l]
British colonies or plantations in America,
which shall be incurred in the said island of
Newfoundland, shall be sued for, prosecuted,
and recovered, in the court of vice admiralty
having jurisdiction in the said
island, and in no other; and if any person
or persons shall think him or themselves aggrieved
by any judgement, sentence, or
determination of any court of vice admiralty,
or other court having jurisdiction
in Newfoundland, upon any suit or prosecution
commenced there for any penalty
or forfeiture inflicted by any act of parliament
relating to the trade or revenues
of the British colonies or plantations in
America, it shall and may be lawful for such
party to appeal from such judgement, sentence,
or determination, in the first instance,
to the proper court of admiralty in Great
Britain, or to his Majesty in council; and
that no appeal shall in such case lie or be
brought in any other court or jurisdiction
whatsoever, any law, custom, or usage, to
the contrary notwithstanding.


Duties on
goods exported
or imported
to be under
the direction
of the commissioners
of
customs, etc.


35. And it is hereby further enacted by
the authority aforesaid, That, from and after
the first day of January one thousand seven
hundred and seventy-six, the customs and
other duties which now are or hereafter
may be due and payable upon any goods
or merchandizes brought or imported into,
or exported or carried from, the island of
Newfoundland, by virtue of this or any act
or acts of Parliament, and the officers of[li]
his Majesty’s customs appointed for executing
and carrying into execution the several
laws relating to the trade and revenue
there, shall be under the management and
direction of the commissioners of his Majesty’s
customs in England for the time
being, under the authority and direction of
the high treasurer of Great Britain, or the
commissioners of the treasury for the time
being, any law, patent, custom, or usage,
to the contrary notwithstanding.


Deputations
granted by the
commissioners
for North
America before
Jan. 1, 1776,
to any officers
for Newfoundland
to be in
force.


36. Provided always, and it is hereby
further enacted by the authority aforesaid,
That all deputations and other authorities
granted by the commissioners of the customs
for North America, before the said
first day of January one thousand seven
hundred and seventy-six, to any officer or
officers acting in and for the said island of
Newfoundland, shall continue in force, as
fully to all intents and purposes as if this
act had not been made, until the deputations
or other authorities so granted to such
officer or officers respectively shall be revoked,
annulled, or made void, by the
high treasurer of Great Britain, or commissioners
of the treasury for the time
being.


Persons sued
for any thing
done in pursuance
of this
act may plead
the general
issue,
and recover
treble costs.


37. And be it further enacted by the
authority aforesaid, That if any action or
suit shall be commenced against any person
or persons for any thing done in pursuance
of this act of parliament, the defendant or[lii]
defendants in such action or suit may plead
the general issue, and give this act and the
special matter in evidence at any trial to be
had thereupon, and that the same was
done in pursuance of and by the authority
of this act: And if it shall appear so to
have been done, the jury shall find for the
defendant or defendants; and if the plaintiff
shall be nonsuited, or discontinue his
action after the defendant or defendants
have appeared, or if judgement shall be
given upon any verdict or demurrer against
the plaintiff, the defendant or defendants
shall recover treble costs, and have the like
remedy for the same as defendants have in
other cases by law.




[liii]


26 GEO. III. Cap. 26.




An act to amend and render more effectual
the several laws now in force for encouraging
the fisheries carried on at Newfoundland,
and parts adjacent, from
Great Britain, Ireland, and the British
dominions in Europe; and for granting
bounties, for a limited time, on certain
terms and conditions.




Preamble. 15 Geo. III.
Cap. 31. After Jan. 1,
1787, bounties
to be
given to vessels
fitted out
from Great
Britain, &c.
for the Newfoundland
fishery,
qualified, etc.
agreeable to
10 & 11 Gul. III.
Cap. 25. Bounties to
be paid the
first 100 vessels
which
shall arrive at
Newfoundland
with a cargo
of fish. Ditto to the
Second 100
vessels which
shall so arrive.
Certificates to
be produced
to the collector
of customs
from the governor
of
Newfoundland
of the qualification
of
ships, etc.
Masters and
mates to make
oath.
Collectors of
customs to
pay the bounties.


Whereas the bounties granted to
a certain number of vessels employed
in the British fishery on the banks
of Newfoundland, by an act passed in the
fifteenth year of the reign of his present
Majesty, intituled, An act for the encouragement
of the fisheries carried on from
Great Britain, Ireland, and the British
dominions in Europe; and for securing the
return of the fishermen, sailors, and others
employed in the said fisheries, to the ports
thereof, at the end of the fishing season,
will expire on the first day of January
one thousand seven hundred and eighty-seven:
And whereas, at the expiration
thereof, it is expedient that new bounties
should be granted, for a limited time, under
certain conditions, limitations, and restrictions:
And whereas it has been found
by experience, that several of the provisions
and regulations contained in the laws
now in force for encouraging the fisheries,
carried on at Newfoundland, and parts adjacent,[liv]
are insufficient to answer the good
purposes thereby intended, and that it is
requisite that other provisions and regulations
should be enacted: To that end, be
it therefore enacted by the King’s most excellent
Majesty, by and with the advice and
consent of the Lords spiritual and temporal,
and Commons, in this present Parliament
assembled, and by the authority of
the same, That, from and after the first
day of January one thousand seven hundred
and eighty-seven, the respective bounties
herein-after mentioned shall be paid
and allowed annually, for ten years, to a
certain number of ships or vessels employed
in the British fishery on the banks of
Newfoundland, under the limitations and
restrictions herein-after expressed; that is
to say, That such vessels shall appear by
their register to be British-built, and
wholly owned by his Majesty’s subjects residing
in Great Britain, Ireland, or the
islands of Guernsey, Jersey, or Man; and
shall be navigated each with a master, and
at least three fourths of the mariners being
British subjects, usually residing in his
Majesty’s European dominions; and shall
be in other respects qualified and subject to
the same rules and restrictions as are prescribed
by an act, made in the tenth and
eleventh years of the reign of King William
the third, intituled, An act to encourage
the trade to Newfoundland; and shall
be fitted and cleared out from some port in
Great Britain, or from the islands of Guernsey,[lv]
Jersey, or Alderney, after the said first
day of January one thousand seven hundred
and eighty-seven, and after that day
in each succeeding year, and shall proceed
to the banks of Newfoundland; and having
catched a cargo of fish upon those
banks, consisting of not less than ten
thousand fish by tale, shall land the same
at any one of the ports on the north, the
east, or the south side of the island of
Newfoundland, between Cape Saint John
and Cape Raye, on or before the fifteenth
day of July in each year, and shall make
one more trip, at least, to the said banks,
and return with another cargo of fish
catched there, to the same port: In which
case, the one hundred vessels which shall
first arrive at the island of Newfoundland,
from the banks thereof, with a cargo of
fish catched there, consisting of ten thousand
fish by tale, at the least, and which,
after landing the same at one of the ports
within the limits before-mentioned in
Newfoundland, shall proceed again to the
said banks, and return to the said island
with another cargo of fish, shall, if navigated
with not less than twelve men each,
be intitled to forty pounds each; but if
any of the said one hundred vessels, so first
arriving as aforesaid, shall be navigated
with less than twelve men each, and not less
than seven, they shall be intitled to twenty-five
pounds each: Provided always, That
if, in either of the cases before-mentioned,
any of the one hundred vessels, so first[lvi]
arriving as aforesaid, shall be wholly navigated
by men going out upon shares, that
is to say, receiving a certain share of the
profits arising from the voyage in lieu of
wages, such of the said vessels as shall be
so navigated by not less than twelve men
each, shall be intitled to fifty pounds each;
and if so navigated with a less number
than twelve men, and not less than seven, shall
be intitled to thirty-five pounds each. And
further, that the one hundred vessels which
shall next so arrive in order of time, on or
before the said fifteenth day of July in each
year, at the said island, with a like cargo,
and shall proceed again to the said banks,
and return from thence in the manner herein-before
mentioned, shall, if navigated
with not less than twelve men each, be
intitled to twenty-five pounds each; but if
such one hundred vessels, so arriving as
aforesaid the next in order of time, shall
be navigated each with less than twelve,
and not less than seven men, they shall be
intitled to eighteen pounds each: Provided
also, That if, in either of the cases last
mentioned, any of the vessels so arriving
next in order of time as aforesaid, shall be
so navigated wholly by men going out upon
shares, that is to say, receiving a certain
share of the profits arising from the voyage
in lieu of wages, such of the said vessels,
as shall be so navigated by not less than
twelve men each, shall be intitled to thirty-five
pounds each; and if so navigated
with a less number than twelve men, and[lvii]
not less than seven, shall be intitled to
twenty-one pounds each; upon the master
or owner of every such vessel respectively
producing to the collector or other principal
officer of his Majesty’s customs at the
port in Great Britain from whence such
vessel was cleared out, or if cleared out
from either of the said islands of Guernsey,
Jersey, or Alderney, to the collector, or
other principal officer of the customs in
some port of Great Britain, a certificate
under the hand and seal of the governor
of Newfoundland, that the master of such
vessel had produced to him a certificate,
under the hands of the collector and comptroller
of the customs at the port from
whence such vessel was cleared out, or if
cleared out from the islands of Guernsey,
Jersey, or Alderney, under the hands of
the governor, or deputy governor, and principal
officer of the customs there, testifying
that such vessel was duly qualified to
proceed on such fishery in pursuance of the
before recited act, made in the tenth and
eleventh years of the reign of King William
the third; and that it has been made
to appear to his satisfaction, by a certificate
under the hand and seal of the naval officer
of the district in Newfoundland where such
fish was landed, or where there is no naval
officer, under the hand and seal of the
commander of any of his Majesty’s ships
stationed there, or of such officer as the
governor shall approve, specifying the time
of such vessel’s arrival in manner before[lviii]
directed, that such vessel was intitled, by
the priority and time of her arrival, to one
or other of the bounties therein mentioned,
as the fact may be; and that the master and
mate of such vessel had made oath, before
such naval or other officer as aforesaid, that
the number of fish taken on the first trip
amounted to ten thousand at least by tale;
that he had made two trips at least, and that
all the fish on both trips were catched on
the banks of Newfoundland by the crew of
such vessel only; which certificate and oath
the said governor, and naval or other officer
as aforesaid, are hereby impowered and required
to grant and administer to the master
and mate of such vessel, without fee or
reward; and upon delivering up the said
certificate to such collector, the respective
bounties therein mentioned shall be paid by
such collector in such and the like manner,
and out of the same funds, as the bounties
herein-before mentioned to have been granted
by the said recited act, made in the said
fifteenth year of the reign of his present
Majesty.


Number of
mariners belonging
to
each vessel to
be inserted in
the certificate
of qualification.


2. And be it further enacted by the authority
aforesaid, That in each and every
certificate of a ship being duly qualified as
aforesaid to proceed on the said fishery,
there shall be inserted the real number of
the mariners then belonging to such vessel,
and intended to be employed in the said
fishery, distinguishing how many of them
are new or green men, and whether they[lix]
are hired upon shares, or are to receive
wages; which facts are to be verified on
the oath of the master of the vessel, made
or taken before the person who shall grant
the said certificate, and who is hereby authorised
and required to administer the
same, and to insert such facts in such certificate;
and if such vessels shall be cleared
out from the said islands of Guernsey, Jersey,
or Alderney, then such oath shall be taken
before a magistrate of the royal court, in
the presence of the principal officer of the
customs who shall grant such certificate,
the whole to be attested by the governor
of each of the said islands respectively; on
failure whereof, such vessels shall be excluded
from the benefit of this act, and
shall not be intitled to or receive any of the
bounties herein-before granted.


Certificates
given and affidavits
taken
in Newfoundland,
when to
be transmitted
to the governor.


3. And be it further enacted by the authority
aforesaid, That the several certificates
to be given and affidavits taken in
Newfoundland as aforesaid, in order to
satisfy the said governor of the said island,
as to the facts to ground his certificate
thereupon, as herein-before directed, for
the payment of the said bounties, shall and
are hereby required, within the district of
Saint John’s in the said island of Newfoundland,
to be transmitted to the said
governor at Saint John’s, before the
fifteenth day of September in each year,
and within any other district in the said
island before the thirtieth day of September[lx]
in each year, in order that he may perfectly
examine the documents, and thoroughly
investigate the same, so as to be able
clearly and justly to settle the times of the
arrivals as aforesaid of the several and respective
vessels, and adjust the different
bounties, and to whom they are and ought
severally to be paid.


Masters of
vessels, previous
to receiving
the bounties,
to make
oath relative
to the number
of their men
returned.


4. And be it further enacted by the authority
aforesaid, That every master of a vessel,
entitled to any of the bounties herein-before
granted, shall, before he shall receive the
same, or any part thereof, make oath before
the collector and comptroller, or other
chief officer at the port in Great Britain
where he shall arrive on his return from
the said fishery upon the banks of Newfoundland,
that all the men belonging to his
ship who sailed out with him, or a number
of men equal thereto, are returned to Great
Britain, unless any of his crew shall have
died at Newfoundland, or in the said
voyage, either on the passage out or return
home, or have deserted without his knowledge
or consent, or have been shipped in
or on board British vessels bound for foreign
markets; which facts shall also be verified
on oath by every such master, before the
said officers or officer of the customs, who
are respectively hereby authorised and required
to administer the same.


What proportion
of their
wages shall be advanced to
green men
during the
time of their
service.


5. And whereas, by the said recited
act, made in the fifteenth year of the reign[lxi]
of his present Majesty, it is enacted, That
no hirer or employer shall pay or advance
to any seaman or fisherman, or either of
them, during the time he shall be in his
service, more than half the wages which
shall at any time be due to him: And
whereas, in the case of green men, the advance
of one half of the wages may not
always be sufficient to fit them out and
clothe them for the season; be it therefore
enacted by the authority aforesaid, That it
shall and may be lawful for the hirer or
employer of any such green men engaged
in the said fishery, to advance to any such
green man, during the time he shall be in
his service, a sum not exceeding five pounds,
ten shillings, although the same shall amount
to more than one half of the wages which
shall be due to him, provided a sum equal
to the then current price of a man’s passage
home, not exceeding forty shillings for
each man, be reserved to bear the charge
of his return home, as directed by the said
before recited act of the fifteenth year of
his present Majesty’s reign.


Penalty on
seamen, etc.
absenting
themselves
from or neglecting
their
employ.


6. And whereas in and by the said recited
act, made in the fifteenth year of his present
Majesty’s reign, it is directed, That in case
any seaman or fisherman shall at any time
wilfully absent himself from his duty or
employ, without the leave and consent of
his hirer or employer, or the agent of such
hirer or employer, or shall wilfully neglect
or refuse to work, according to the true[lxii]
intent and meaning of his contract or agreement,
he shall, for every day he shall so
absent himself or neglect or refuse to work,
forfeit two days pay to such owner or employer:
And whereas the said penalties have
been found insufficient; be it therefore enacted,
That, where any such seaman or
fisherman shall so wilfully absent himself
from his duty or employ, without the
leave or consent of his hirer or employer,
or shall wilfully neglect or refuse to work,
for the space of one day, he shall, for every
day he shall so absent himself, or wilfully
neglect or refuse to work, forfeit any
number of days pay not exceeding five,
as the said governor of Newfoundland, or
his surrogate, may think just and reasonable;
and such forfeiture shall be paid to
the hirer or employer of such seaman or
fisherman, in recompence for the loss or
damage which he may have sustained by
means of, or through such absence, neglect
of duty, or refusal to work.


Master to be
sworn before
oil or blubber
admitted to
entry duty-free.


7. And be it further enacted by the authority
aforesaid, That, before any oil or
blubber, imported from Newfoundland into
Great Britain, shall be admitted to entry
duty-free, the master, or other person having
or taking the charge or command of
the ship or vessel importing the same, shall
make oath before the collector, or other
chief officer of the customs at the port in
Great Britain into which the said oil or
blubber is imported, (who is hereby authorised[lxiii]
and required to administer such
oath), that the same, and every part thereof,
is really and bona fide the oil or blubber
of fish or creatures living in the sea, actually
caught and taken on the banks and shores
of the island of Newfoundland, and parts
adjacent, wholly by his Majesty’s subjects
carrying on the said fishery from his Majesty’s
European dominions, and usually
residing in the said dominions; any law,
custom, or usage, to the contrary notwithstanding.


A similar
oath to be
taken relative
to seal skins.


8. And be it further enacted by the
authority aforesaid, That, before any seal
skins, imported from Newfoundland into
Great Britain, shall be admitted to entry
duty-free, the master, or other person
having or taking the charge or command
of the ship or vessel importing the same,
shall make oath before the collector, or
other chief officer of the customs at the
port in Great Britain into which such seal
skins are imported, (who is hereby authorised
and required to administer such
oath), that the same are really and bona
fide the skins of seals actually caught and
taken on the banks and shores of the said
island of Newfoundland, and parts adjacent,
wholly by his Majesty’s subjects
carrying on the said fishery from his Majesty’s
European dominions, and usually
residing in the said dominions; any law,
custom, or usage, to the contrary notwithstanding.


[lxiv]


Clause relative
to oil, &c.
purchased at
Newfoundland,
and imported
from thence
into Great
Britain.


9. And be it further enacted by the
authority aforesaid, That, in case any oil,
blubber, or seal skins, shall be purchased
in the said island of Newfoundland, or the
parts adjacent, and imported into Great
Britain from thence, the same shall and
may be admitted to entry duty-free, provided
the master or other person having
or taking the charge or command of the
ship or vessel importing the same, shall
make oath of all and every the particulars
respecting the purchase thereof, before
the collector or other chief officer of the
customs at the port in Great Britain into
which such oil, blubber, or seal skins, are
imported, (who is hereby authorised and
required to administer such oath); and
shall produce and deliver to such collector
or other chief officer, a certificate, under
the hand and seal of the naval officer of the
district in Newfoundland where such oil,
blubber, or seal skins, were purchased;
or if there shall not be any naval officer
at such place, then under the hand and
seal of the commander of any of his Majesty’s
ships stationed there, testifying that
oath had been made before him, (who is
hereby authorised and required, in such
case, to administer the same), by the person
or persons who actually caught the
fish from which the oil, blubber, or the
seals from which the skins mentioned in
such certificate was produced or came,
that such oil or blubber was really and
bona fide the oil or blubber of fish or creatures[lxv]
living in the sea, or that such skins
were really and bona fide the skins of seals,
actually caught and taken on the banks
and shores of the island of Newfoundland,
and parts adjacent, wholly by his Majesty’s
subjects carrying on the said fishery from
his Majesty’s European dominions, and
usually residing in the said dominions;
and provided such master, or other person
having or taking the charge or command
of the ship or vessel so importing such oil,
blubber, and seal skins, shall also make
oath, before such collector or other chief
officer, (who is hereby authorised and required
to administer the same), that the
oil, blubber, or seal skins so imported,
are the same oil, blubber, or seal skins
mentioned and referred to in the said
certificate.


Bond to be
given to his
Majesty for
payment of
the old subsidy,
&c. on
the importation
of salt, such bonds to
be cancelled,
&c. on exportation
thereof within
12 months.


10. And be it further enacted by the
authority aforesaid, That, upon the importation
of any foreign salt into this kingdom
from any place from whence, and in the
manner in which such salt may be legally
imported, the importer or proprietor of
such salt shall be at liberty to give bond to
his Majesty, his heirs and successors, for
the payment of the duty commonly called
The Old Subsidy, and all further subsidies,
imposts, and duties, due and payable to
and for the customs upon such salt, within
the space of twelve calendar months from
the date of such bond, but without any
discount or allowance for prompt payment[lxvi]
of the said duties, or either of them;
which bond the collector and comptroller
of his Majesty’s customs at the port of
importation are hereby authorised to take
in his Majesty’s name, and thereupon to
permit such salt to be entered and landed
in the usual manner; and if such salt shall
be exported again within the said space of
twelve calendar months, the bonds which
shall have been given for the said duties
thereon, shall be cancelled and discharged;
and in case the full duties payable to the
customs for such salt shall have been paid
at or before the expiration of the said
twelve calendar months, and such salt
shall be afterwards exported into foreign
parts within the time allowed by law, a
drawback of all the said duties which
were so paid shall be allowed in the same
manner as the former drawback of the
customs upon the exportation of salt was,
could or might be paid; and such salt
shall be subject and liable to the same
rules, regulations, restrictions, securities,
penalties, and forfeitures, (except where
any alteration is made by this act), as such
salt was subject and liable to by any act or
acts of parliament in force before the
making of this act.


Not to use
any sean or
net for catching
cod whose
mesh is less
than four
inches in dimension.


11. And be it further enacted by the
authority aforesaid, That it shall not be
lawful to or for any person or persons
concerned or employed in carrying on the
said fishery, or for any seaman or fisherman[lxvii]
hired for the purpose of carrying on the
said fishery, to use, or cause to be made
use of, on the shores of the said island of
Newfoundland, any sean or net of any
kind or description whatsoever, for the
purpose of catching cod fish by hauling
such sean or net on shore, or tucking such
sean or net into any boat or boats, the
scale or mesh of which said sean or net
shall be less in dimension than four inches,
under the penalty of forfeiting the sum of
one hundred pounds for every such offence;
which offence may be heard and
determined, and the penalty hereby incurred
shall and may be recovered in the
court of session of the said island, provided
that such offence be complained of
within the space of three calendar months
after the commission of the same.


Preamble. If any British
seaman, &c.
shall desert or
agree to desert
from Newfoundland,
with intent to
enter into the
service of any
foreign state,
he may be
committed,
&c.
and sent
home.


12. And whereas it is essential to the
naval strength of Great Britain, that the
desertion of seamen and fishermen employed
in the fishery of Newfoundland,
and the parts adjacent, should be prevented:
And whereas, by reason of their
superior skill as seamen and fishermen, and
as artificers of the implements and utensils
necessary to the carrying on of such fisheries,
they are, by great temptations, exposed
to be seduced into the service and
employ of the subjects of foreign states:
And whereas the regulations and provisions
made in and by an act, passed in
the fifteenth year of his present Majesty’s[lxviii]
reign, herein-before mentioned, are not
sufficient to prevent the desertion of such
seamen and fishermen to the service of the
subjects of foreign states; be it therefore
enacted by the authority aforesaid, That if
any seaman or fisherman, hired or employed
in the carrying on of the said
fishery, shall desert from the said island of
Newfoundland, or from the said fishery,
with intent to enter into the service of
any foreign state, or of any of the subjects
of any foreign state, or shall have in any wise
agreed so to absent himself or desert with
such intent, or shall have actually entered
into such service as aforesaid, it shall and
may be lawful to and for the governor of
Newfoundland, or his surrogates, or for
the judge of the vice admiralty court for
the time being, or for any justice of the
peace in Newfoundland respectively, to
issue his or their warrant or warrants to
apprehend such person so deserting, or
having agreed to desert as aforesaid, and
on the oath or oaths of one or more
credible witness or witnesses, to commit
him to prison, there to remain until the
next court of session which shall be holden
in pursuance of the commission of the
governor for the time being; and if
found guilty of the said offence at such
session, that it shall and may be lawful to
and for the said court of session to order
such deserter as aforesaid to be detained in
prison, without bail or mainprize, for
any time not exceeding three months,
in case he shall have come from his Majesty’s[lxix]
European dominions for the purpose
of carrying on the fisheries aforesaid.


But if not
from his Majesty’s
European
dominions,
he may
be imprisoned
for 12 months.


13. Provided always, and be it enacted
by the authority aforesaid, That it shall
and may be lawful for such governor,
within the space of three months, if he
shall see fit, or as soon after as conveniently
may be, to cause every such person
so having deserted, or agreed to desert,
to be put on board a passage ship or vessel,
in order to his being conveyed back to the
country to which he belonged, and for
which the master, or other person having
or taking the charge or command of such
ship or vessel, shall be paid in manner
herein-after mentioned; and every master,
or other person having or taking the charge
or command of such passage ship or vessel,
shall be, and is hereby required to take
on board such and so many of such persons
as the said governor shall direct, not exceeding
four for each one hundred tons of
the tonnage of such ship or vessel, and so
in proportion for every such ship or vessel
under one hundred tons: Provided nevertheless,
That no person shall be so put on
board of any ship or vessel which shall not
be of the burthen of forty tons: But if
any person or persons convicted of deserting
or agreeing to desert as aforesaid, shall
not have come from his Majesty’s European
dominions for the purpose of carrying
on the fisheries aforesaid, then, and in
such case, that it shall and may be lawful[lxx]
for the said court of session to commit such
person or persons to prison, there to remain,
without bail or mainprize, for
any time not exceeding twelve calendar
months.


Preamble. Fishermen at
Newfoundland
not to sell or
barter any
vessel, etc.
to or with any
foreigner.


14. And whereas it is of great importance
to the trade, manufacture, and navigation
of Great Britain, and of his Majesty’s
dominions in Europe, that all trade
and mercantile intercourse between his Majesty’s
subjects, residing or carrying on
fishery in the island of Newfoundland with
the subjects of any foreign state, should be
prohibited: And whereas it is essentially
necessary to the preservation of the benefits
arising from the fishery aforesaid, to prevent
the sale of any ships, vessels, or boats,
or of the tackle, apparel, or furniture of
the same, and of all and all manner of
utensils and implements, which are or may
be used in catching and curing fish, and also
of all articles and commodities of the
growth, produce, and manufacture of the
said island of Newfoundland, to the subjects
of any foreign state, or to any other than
the subjects of his Majesty, his heirs and
successors, and also to prohibit the purchase
of any goods or commodities whatsoever,
from the subjects of any foreign state; be
it therefore enacted by the authority aforesaid,
That it shall not be lawful for any
person or persons, residing in or carrying
on fishery in the said island of Newfoundland,
or on the banks thereof, there to sell,[lxxi]
barter, or exchange, any ship, vessel, or
boat, of what kind or description soever,
or any tackle, apparel, or furniture, used
or which may be used by any ship, vessel,
or boat; or any seans, nets, or other implements
or utensils, used or which may be
used in catching or curing fish, or any kind
of bait whatsoever used or which may be used
in the catching of fish; or any kind of fish,
oil, blubber, seal skins, peltry, fuel, wood,
or timber, to or with any person or persons
whatsoever, other than the subjects of his
Majesty, his heirs and successors.


Offenders
herein to be
committed;
and to forfeit
treble the value
of the articles
sold, etc.


15. And be it further enacted by the
authority aforesaid, That if any person or
persons residing or carrying on fishery in
the said island of Newfoundland, shall there
sell, barter, or exchange, or cause to be
sold, bartered, or exchanged, or shall endeavour
to sell, barter, or exchange, or
shall be aiding or assisting in selling, bartering
or exchanging, or causing to be sold,
bartered, or exchanged, any such ship,
vessel, boat, or any tackle, apparel, or
furniture, used or which may be used for
the purpose of navigating any ship, vessel,
or boat; or any seans, nets, or other implements
or utensils, used or which may be
used in catching or curing fish; or any
kind of bait whatsoever used or which may
be used in catching fish; or any fish, oil,
blubber, seal skins, fuel, wood, or timber,
to any person or persons, being the subjects
of any foreign state, it shall and may
be lawful to and for the governor of Newfoundland,[lxxii]
or his surrogates, or for any
justice of the peace in Newfoundland, to
issue his or their warrant or warrants to apprehend
every such offender, and, on the
oath of one or more credible witness or
witnesses, to commit him to prison, there
to remain until the next court of session
which shall be holden in pursuance of the
commission of the said governor for the
time being; and all and every such person
or persons, if found guilty of the said
offence at such session, shall forfeit and pay
treble the value of the articles so sold or
caused to be sold, or attempted to be sold
as aforesaid, or bartered or taken in exchange,
or in the selling, bartering, or
exchanging of which, or causing to be
sold, bartered, or exchanged, such person
or persons was or were aiding or assisting,
and the same shall be levied of the offender’s
goods and chattels, by warrant to be
granted by the said court of session for that
purpose; and in case no goods upon which
such distress can be made shall be found,
then it shall and may be lawful for the said
court to order such person or persons to be
punished and dealt with in the same manner
as is herein-before directed with respect to
deserters or persons agreeing to desert.


Such fishermen
not to
purchase any
goods of, or
to barter with
foreigners for
the same.
Offenders to
be committed,
and to forfeit
treble the
value of the
goods.


16. And whereas it is highly injurious
to the trade and manufactures of his Majesty’s
dominions in Europe, that persons
residing or carrying on fishery in the island
of Newfoundland, or parts adjacent, or on
the banks of the said island of Newfoundland,[lxxiii]
should be supplied with any goods or
commodities whatsoever by the subjects
of any foreign state; be it therefore
enacted by the authority aforesaid, That
no person or persons residing or carrying
on fishery in the island of Newfoundland, or
parts adjacent, or on the banks of the said
island of Newfoundland, shall there purchase,
or take in exchange, or by way of
barter, or cause to be purchased, or taken in
exchange, or by way of barter, or be aiding or
assisting in the purchasing, bartering for, or
taking in exchange, any goods or commodities
whatsoever, from any person or persons
being a subject or subjects of any foreign state;
and that every person or persons residing or
carrying on fishery in the said island of
Newfoundland, or parts adjacent, or on
the banks of the said island of Newfoundland,
who shall there purchase, barter for,
or take in exchange, or shall cause to be
purchased, bartered for, or taken in exchange,
any such goods or commodities in
manner aforesaid, shall be apprehended
and committed to prison, and, on due conviction,
before the court of session, shall
forfeit treble the value of such goods or
commodities so purchased, or taken in
barter or exchange, or procured to be purchased,
or taken in barter or exchange, or
in the purchase, barter, or taking of which
in exchange, such person shall have been
aiding or assisting, and the same shall be
levied of the offender’s goods and chattels,
by warrant to be granted by the said court[lxxiv]
of session for that purpose; and in case no
goods upon which such distress can be
made shall be found, then it shall and may
be lawful for the said court to order such
person or persons to be punished and dealt
with in the same manner as is herein-before
directed with respect to deserters or persons
agreeing to desert.


Not to extend
to the importation
of
bread, etc.


17. Provided always, That nothing
herein contained shall extend, or be construed
to extend, to hinder or prevent
bread, flour, Indian corn, and live stock,
from being imported into the said island
of Newfoundland in certain British vessels,
in pursuance of an act passed in this present
session of Parliament.


No more than
40s. to be
paid for the
passage of any
person from
Newfoundland,
&c.


18. And be it further enacted by the
authority aforesaid, That the sum for which
the said governor shall agree with the master,
or other person having or taking the
charge or command of any ship or vessel,
for the passage of any person or persons
from the said island, to the place or places
to which he or they belonged, shall in no
case exceed the sum of forty shillings for
each person, and shall be paid to the master
of such ship or vessel out of the monies
which shall arise from forfeitures incurred
for any offence committed against this act,
or the acts herein-before recited, upon
such master producing, to the said court of
session, a certificate, under the hand and
seal of such governor, of the numbers and[lxxv]
names of the persons respectively taken on
board by his direction, and of the times
they were taken on board respectively, and
the several sums agreed to be paid as aforesaid;
which sums the court of session are
hereby required to cause to be paid to such
master, if sufficient funds for that purpose
shall remain in the hands of the said
court.


Such payments,
in case
of a deficiency
in the
fund for that
purpose, to be
made by the
commissioners
of the navy.


19. And be it also enacted by the
authority aforesaid, That if no sufficient
fund for the payment of any sum or sums,
so agreed upon as aforesaid, shall remain
in the hands of the said court of session,
then and in such case every such master or
other person having or taking the charge
or command of such ship or vessel, who
shall have taken on board any number of
persons by order of the governor, in manner
herein-before directed, upon producing
a certificate, under the hand and seal of
the said governor, in manner herein-before
directed, and making an affidavit at his return,
setting forth the time during which
he subsisted such person or persons, and
that he did not, during that time, want
any of his own complement of men, or how
many he did want of such complement,
and for what time, shall receive from the
commissioners of the navy for the time being
(who are hereby required to cause the
same to be paid) sixpence per diem for the
passage and provisions of such person or
persons from the day of their embarkation[lxxvi]
homewards to the day of their arrival in
Great Britain, the said sum of sixpence
per diem only being deducted for such time
and so many persons as he wanted of his
complement during his voyage.


Recital of
4 Geo. III,
cap. 15.
Officers of his
Majesty’s
ships stationed
at Newfoundland
may detain
suspected
vessels, and
search them:
and if any
contraband
goods are
found on
board, such
vessels and
goods shall
be forfeited.


20. And whereas it is enacted, in and
by an act passed in the fourth year of his
present Majesty’s reign, intituled, An act for
granting certain duties in the British colonies
and plantations in America; for continuing,
amending, and making perpetual, an act passed
in the sixth year of the reign of his late Majesty
King George the second, intituled, An act
for the better securing and encouraging
the trade of his Majesty’s sugar colonies in
America; for applying the produce of such
duties, and of the duties to arise by virtue of
the said act, towards defraying the expences
of defending, protecting, and securing the said
colonies and plantations; for explaining an
act made in the twenty-fifth year of the reign
of King Charles the second, intituled, An act
for the encouragement of the Greenland
and Eastland trades, and for the better securing
the plantation trade; and for altering
and disallowing several drawbacks on
exports from this kingdom, and more effectually
preventing the clandestine conveyance of
goods to and from the said colonies and plantations,
and improving and securing the trade
between the same and Great Britain; That
if any British ship or vessel shall be found
standing into, or coming out from, either
of the islands of Saint Pierre and Miquelon,[lxxvii]
or hovering or at anchor within two leagues
of the coast thereof, or shall be discovered
to have taken any goods or merchandizes
on board at either of them, or to have
been there for that purpose, such ship or
vessel, and all the goods so taken on board
there, shall be forfeited and lost, and shall
and may be seized and prosecuted by any
officer of his Majesty’s customs; and the
master, or other person having the charge
of such ship or vessel, and every person
concerned in taking such goods on board,
shall forfeit treble the value thereof: And
whereas the provisions of the said recited
act may not be sufficient to effectuate the
good purposes thereby intended, or to prevent
the export or sale of ships, vessels, and
boats, and of all other the goods and commodities
herein-before enumerated and
prohibited to be sold to the subjects of any
foreign state, or the purchase and import
of the goods and commodities of such foreign
states; be it therefore enacted by the
authority aforesaid, That it shall and may
be lawful for all and every officer or officers,
having the command of any of his
Majesty’s ships stationed at the island of
Newfoundland, to stop and detain all and
every ship, vessel, or boat, of what nature
or description soever, coming to, or going
from the said island, and belonging to, or
in the service or occupation of any of his
Majesty’s subjects residing in, trafficking
with, or carrying on fishery in the island of
Newfoundland, parts adjacent, or on the[lxxviii]
banks of the said island of Newfoundland,
which he shall have reason to suspect to be
going to, or coming from, the islands of
Saint Pierre or Miquelon, for the purposes
before mentioned, in any place within the
limits of their station, and to detain, search,
and examine, such ship, vessel, or boat;
and that if, upon such search or examination,
it shall appear to such officer or officers
that there is reasonable ground to believe
that such ship, vessel, or boat, or any
tackle, apparel, or furniture, used, or which
may be used, by any ship, vessel, or boat,
or any implements or utensils used, or
which may be used, in the catching or
curing of fish, or any fish, oil, blubber,
seal skins, fuel, wood, or timber, then on
board of such ship, vessel, or boat, was or
were intended to be sold, bartered for, or
exchanged, to the subjects of any foreign
state, or shall be discovered to have been
so sold, bartered for, or exchanged; or if
any goods or commodities whatsoever shall
be found on board such ship, vessel, or
boat, or shall be discovered to have been
on board, having been purchased or taken
in barter or exchange from the subjects of
any foreign state; then, and in every such
case, to seize and send back such ship, vessel,
or boat, to the island of Newfoundland;
and that such ship, vessel, or boat, and such
goods and commodities so found on board,
shall, upon due condemnation, be forfeited
and lost, and shall and may be prosecuted
for that purpose, by the officer or officers[lxxix]
so seizing the same, in the vice admiralty
court of the said island of Newfoundland;
such forfeiture to be given, one moiety to
the said officer or officers, and the other
moiety to the governor of Newfoundland
for the time being, to be applied, under the
direction of such governor, in defraying
the passages home of such person or persons
as by this or any former act are directed
to be sent back to the country to
which they belong.


Clause relative
to suits in
Newfoundland
on account
of the seizure
of vessels, &c.


21. And be it further enacted by the
authority aforesaid, That, in case any libel,
information, or other suit or proceeding
whatsoever, shall be commenced and
brought to trial, in the court of vice admiralty
in the said island of Newfoundland,
on account of the seizure of any
ship, vessel, boat, or goods, for the condemnation
of the same, for any of the
causes herein-before mentioned, wherein a
decree shall be pronounced for or in favour
of the defendant or defendants, claimer
or claimers thereof, and it shall appear
to the judge or court, before whom the
same shall be tried, that there was a probable
cause for seizing the said ship, vessel,
boat, or goods, the judge before whom the
said cause shall be tried shall certify on the
record that there was a probable cause for
the seizing of the said ship, vessel, boat, or
goods; a copy of which certificate shall be
delivered to the prosecutor, under the
hands and seals of such judge or judges;[lxxx]
and that, in such case, the defendant shall
not be intitled to any costs of suit whatsoever,
nor shall the person or persons who
seized such ship, vessel, boat, or goods, be
liable to any action, indictment, or other
prosecution, on account of such seizure;
and that if any action, indictment, or prosecution,
shall be brought or preferred
against any person or persons, who shall
have obtained such copy of such certificate
as aforesaid, in any of his Majesty’s courts
in Great Britain, such copy shall be admitted
in evidence on behalf of the defendant
or defendants, and shall have the like force
and effect as the certificate on record would
have had in the case of such action, indictment,
or other prosecution, being brought
or preferred in the island of Newfoundland.


Plaintiff gaining
a verdict
shall not be
intitled to
costs, if there
was probable
cause of seizure.


22. And be it also enacted by the authority
aforesaid, That if any action, indictment,
or other prosecution, shall be
commenced and brought to trial against
any person or persons whatsoever, on account
of the seizure of any such ship,
vessel, boat or goods, wherein a verdict
shall be given against the defendant or defendants,
if the court or judge before
whom such action or prosecution shall be
tried shall certify on the record that there
was a probable cause of such seizure, that
the plaintiff, besides his ship, vessel, boat,
or goods, so seized, or the value thereof,
shall not be intitled to above two-pence[lxxxi]
damages, nor to any costs of suit, nor shall
the defendant in such prosecution be fined
above one shilling.


Limitation of
actions. General issue.
Treble costs.


23. And it is hereby further enacted by
the authority aforesaid, That if any person
or persons shall, at any time or times, be
sued or prosecuted for any thing by him
or them done or executed in pursuance of,
or by colour of this act, or of any matter
or thing in this act contained, such action
or prosecution shall be commenced within
the space of three months after the offence
shall have been committed; and in case
the person or persons making such seizure
as aforesaid shall have quitted the said
island of Newfoundland before the expiration
of three months from the time of the
offence committed, then that such action
or prosecution shall be commenced within
three months after his or their return to
Great Britain; and such person or persons
shall and may plead the general issue, and
give this act and the special matter in evidence
for his and their defence, and that
the same was done in prosecution and by
authority of the said act: And if it shall
appear so to have been done, then the
court shall adjudge and decree, or the jury
shall find, in the courts of Great Britain or
Newfoundland respectively, for the defendant
or defendants; and if the plaintiff
shall be nonsuited, or discontinue his action,
libel, or other proceedings in the
courts of Great Britain or Newfoundland,[lxxxii]
after the defendant or defendants hath or
have appeared, or if judgement shall be
given upon any verdict or demurrer against
the plaintiff, the defendant or defendants
shall recover treble costs, and have the like
remedy for the same as the defendant or
defendants hath or have in other cases by
law.


Fines and forfeited
goods,
&c. how to be
applied.


24. And be it further enacted by the authority
aforesaid, That all and every the
fines or penalties inflicted by this act, or
by the acts herein-before recited, and to be
levied upon the seamen or fishermen, except
those for neglect of duty; and that
such ships, vessels, or goods, as shall be
seized, condemned, and forfeited as before
mentioned, except such the distribution
whereof is otherwise directed by this act,
shall be given, one moiety to the informer,
and the other moiety to the Governor
of Newfoundland for the time being, to be
applied, under the direction of such Governor,
in defraying the passages home of
such person or persons as by this or any
former act are directed to be sent back to
the country to which they belong.


Part of the
act of 15 Geo.
III. repealed.


25. And be it further enacted by the
authority aforesaid, That so much of the
said recited act of the fifteenth year of the
reign of his present Majesty, as gives any
jurisdiction to the court of vice admiralty
for the said island of Newfoundland with
respect to enquiring into and determining[lxxxiii]
disputes concerning the wages of any seamen
or fishermen, or any offence committed
by any hirer or employer of such seamen
or fishermen, or any controversies or
differences arising from their contracts or
agreements, shall be, and the same is hereby
repealed.


The recited
acts (except,
&c.) to remain
in force.


26. And be it further enacted by the
authority aforesaid, That all and every the
clauses, matters, and things in the said
herein-before recited acts contained, which
are not altered or repealed by this present
act, shall continue and remain in full
force.




[lxxxiv]


28 GEO. III. Cap. 35.




An act to enable his Majesty to make such
regulations as may be necessary to prevent
the inconvenience which might arise from
the competition of his Majesty’s subjects
and those of the most Christian King, in
carrying on the fishery on the coasts of the
island of Newfoundland.




Preamble. Treaty of
Utrecht recited.
Treaty of
Paris recited.
Treaty of
Versailles
recited.
Declaration to
the French
King of Sept.
3, 1783, recited.
His Majesty,
by advice of
council, may
give such orders
to the
governor of
Newfoundland,
&c. as shall be
deemed proper
to fulfil the
purposes of the
treaty of Versailles,
and
the declaration
to the French
King, above
recited.


Whereas, by the thirteenth article
of the treaty concluded at Utrecht
on the fourth day of April, new stile, in
the year of our Lord one thousand seven
hundred and thirteen, between her late
Majesty Queen Anne and the most Christian
King Louis the fourteenth, it was, among
other things, agreed, That the island called
Newfoundland, with the adjacent islands,
should, from that time forward, belong of
right wholly to Britain, and to that end
the town and fortress of Placentia, and
whatever other places in the said island
were in the possession of the French, should
be yielded and given up, within seven
months from the exchange of the ratification
of that treaty, or sooner if possible,
by the most Christian King, to those who
had a commission from the Queen of Great
Britain for that purpose; nor should the
most Christian King, his heirs or successors,
or any of their subjects, at any time thereafter,
lay claim to any right to the said
island and islands, or to any part of them;[lxxxv]
moreover, it should not be lawful for the
subjects of France to fortify any place in
the said island of Newfoundland, or to erect
any buildings there, besides stages made of
boards, and huts necessary and useful for
drying of fish, or to resort to the said island
beyond the time necessary for fishing and
drying fish: That it should be allowed to
the subjects of France to catch fish, and to
dry them on land, on that part only, and
in none other besides that part of the
island of Newfoundland, which stretches
from the place called Cape Bonavista, to
the northern point of the said island, and
from thence running down by the western
side, and reaches as far as the place called
Cape Riche: And whereas, by the fifth article
of the treaty of peace, concluded at
Paris on the tenth day of February one
thousand seven hundred and sixty-three,
between his Majesty and the late most
Christian King Louis the fifteenth, and his
most Catholick Majesty, it was, among
other things, agreed, that the subjects of
France should have the liberty of fishing
and drying on a part of the coast of the
island of Newfoundland, such as is specified
in the thirteenth article of the treaty of
Utrecht, which article is confirmed and
renewed by the present treaty: And whereas,
by the fifth article of the definitive
treaty of peace, concluded at Versailles,
between his Majesty and the most Christian
King, on the third day of September one
thousand seven hundred and eighty-three,[lxxxvi]
it was, among other things, agreed, That
his Majesty, the King of Great Britain,
should be maintained in his right to the
island of Newfoundland, and to the adjacent
islands, as the whole were assured to him
by the thirteenth article of the treaty of
Utrecht, excepting the islands of Saint Pierre
and Miquelon, which were ceded in full
right, by the said treaty of the third day of
September one thousand seven hundred and
eighty-three, to his most Christian Majesty;
and that his Majesty, the most Christian
King, in order to prevent the quarrels
which had before then arisen between the
two nations of England and France, consented
to remove the right of fishing which
belonged to him in virtue of the aforesaid
article of the treaty of Utrecht, from Cape
Bonavista to Cape Saint John, situated on
the eastern coast of Newfoundland, in fifty
degrees north latitude, and his Majesty the
King of Great Britain consented, on his
part, that the fishery assigned to the subjects
of his most Christian Majesty, beginning
at the said Cape Saint John, passing to
the north, and descending by the western
coast of the island of Newfoundland, should
extend to the place called Cape Rage, situate
in forty-seven degrees and fifty minutes
latitude: The French fishermen should
enjoy the fishery which was assigned to them
by the said article, as they had the right to
enjoy that which was assigned to them by
the treaty of Utrecht: And whereas, by a
declaration delivered by his Majesty’s ambassador[lxxxvii]
extraordinary to his most Christian
Majesty, bearing date also on the said
third day of September one thousand seven
hundred and eighty-three, his Majesty engaged
not only to insure the execution of
the last-mentioned treaty with his known
good faith and punctuality, but to give all
possible efficacy to such principles as may
prevent dispute; and, that the fishermen
of the two nations may not give cause for
daily quarrels, was pleased to engage that
he would take the most positive measures
for preventing his subjects from interrupting
in any manner, by their competition,
the fishing of the French, during the temporary
exercise thereof which is granted
to them upon the coasts of the island of
Newfoundland, and that he would, for that
purpose, cause the permanent settlements
which should be formed there to be removed;
and that he would give orders
that the French fishermen should not be
incommoded in the cutting of wood necessary
for the repair of their scaffolds,
huts, and fishing boats; and that the thirteenth
article of the treaty of Utrecht, and
the method of carrying on the fishery which
had at all times been acknowledged, should
be the plan upon which the fishery should
be carried on there, and that it should not
be deviated from by either party, the
French fishermen building only their scaffolds,
confining themselves to the repair of
their fishing vessels, and not wintering
there; the subjects of his Britannick Majesty,[lxxxviii]
on their part, not molesting in any
manner the French fishermen during their
fishing, nor injuring their scaffolds during
their absence: And whereas it is expedient,
in conformity to the definitive treaty of
peace and the declaration aforesaid, that his
Majesty’s subjects should be prevented from
interrupting in any manner, by their competition,
the aforesaid fishery of the subjects
of his most Christian Majesty, during the
temporary exercise thereof which is granted
to them on the coast of Newfoundland; and
that all permanent establishments on that part
of the coast allotted to the French fishermen
should be removed; and that such fishermen
should be in no manner molested,
contrary to the tenor of the said treaty,
and the good faith thereof: In order,
therefore, that his Majesty may be the better
enabled to carry the said several treaties
and declarations into faithful and punctual
execution, and to make such regulations
as may be expedient, respecting the fishery,
in the manner herein-after mentioned, be
it enacted by the King’s most Excellent
Majesty, by and with the advice and consent
of the Lords spiritual and temporal,
and Commons, in this present Parliament
assembled, and by the authority of the
same, That it shall and may be lawful for
his Majesty, his heirs and successors, by
advice of council, from time to time, to
give such orders and instructions to the governor
of Newfoundland, or to any officer
or officers on that station, as he or they[lxxxix]
shall deem proper and necessary to fulfil
the purposes of the definitive treaty and
declaration aforesaid; and, if it shall be
necessary to that end, to give orders and
instructions to the governor, or other
officer or officers aforesaid, to remove, or
cause to be removed, any stages, flakes,
train vats, or other works whatever, for
the purpose of carrying on fishery, erected
by his Majesty’s subjects on that part of
the coast of Newfoundland which lies between
Cape Saint John, passing to the
north, and descending by the western coast
of the said island to the place called Cape
Rage, and also all ships, vessels, and boats,
belonging to his Majesty’s subjects, which
shall be found within the limits aforesaid,
and also, in case of refusal to depart from
within the limits aforesaid, to compel any
of his Majesty’s subjects to depart from
thence; any law, usage, or custom, to the
contrary notwithstanding.


Persons refusing
to conform
to the directions
of the
governor, to
forfeit 200l.
How penalties
are to be recovered
and
applied.
Limitation of
suits.


2. And be it further enacted by the authority
aforesaid, That if any person or
persons shall refuse, upon requisition made
by the governor, or any officer or officers
acting under him, in pursuance of his Majesty’s
orders or instructions as aforesaid,
to depart from within the limits aforesaid,
or otherwise to conform to such requisition
and directions as such governor, or other
officer as aforesaid, shall make or give, for
the purposes aforesaid, every such person or
persons so refusing, or otherwise offending[xc]
against the same, shall forfeit the sum of
two hundred pounds, to be recovered in
the court of session, or court of vice admiralty
in the said island of Newfoundland,
or by bill, plaint, or information, in any
of his Majesty’s courts of record at Westminster;
one moiety of such penalty to
belong to his Majesty, his heirs and successors,
and the other moiety to such person
or persons as shall sue or prosecute for
the same: Provided always, that every such
suit or prosecution, if the same be commenced
in Newfoundland, shall be commenced
within three months, and if commenced
in any of his Majesty’s courts of
record at Westminster, within twelve
months from the time of the commission
of such offence.




[xci]


29 GEO. III. Cap. 53.




An act for further encouraging and regulating
the Newfoundland, Greenland, and
southern whale fisheries.




Preamble. No fish, unless
caught by subjects
of Great
Britain, or of
the British dominions
in
Europe, to be
landed or dried
at Newfoundland,
the right
as ceded to the
French excepted.


Whereas, as well by immemorial
usage as by the provisions of former
laws, the right and privilege of drying fish
on the island of Newfoundland do not belong
to any of his Majesty’s subjects arriving
there, except from Great Britain, or
one of his Majesty’s dominions in Europe;
for preventing frauds, and thereby better
securing to his Majesty’s said subjects of
Great Britain, and of the other British dominions
in Europe, the full advantages of
the fishery carried on from thence, and of
drying fish on the shores of the island of
Newfoundland, be it declared and enacted
by the King’s most excellent Majesty, by
and with the advice and consent of the
Lords spiritual and temporal, and Commons,
in this present Parliament assembled,
and by the authority of the same,
That no fish, taken or caught by any of his
Majesty’s subjects, or other persons, arriving
at Newfoundland or its dependencies,
or on the banks of the said island, except
from Great Britain, or one of the British
dominions in Europe, shall be permitted to
be landed or dried on the said island of[xcii]
Newfoundland, always excepting the rights
granted by treaty to the subjects of his most
Christian Majesty on that part of the island
of Newfoundland beginning at Cape Saint
John, passing to the north and descending
by the western coast of the said island to
the place called Cape Raye.


26 Geo. III,
cap. 41, recited.
After Jan. 1,
1790 ships to
be intitled to
the bounties
granted by the
recited act,
that shall sail
by April 10,
yearly, tho’
they leave the
Greenland seas
or Davis’s
streights before
Aug. 10 following,
and
shall not be
laden agreeable
to the
regulations of
the recited act,
upon the conditions
herein
specified.


2. And whereas it is thought expedient
that the owners of ships employed in the
Greenland fishery should be allowed to receive
the bounty granted by an act, passed
in the twenty-sixth year of his present Majesty’s
reign, intituled, An act for the further
support and encouragement of the fisheries
carried on in the Greenland Seas and Davis’s
Streights, although such ships depart
from those seas before the tenth day of
August then following, and although they
be not laden with the quantity of whale
fins, and of oil or blubber in proportion
thereto, required by the said act, in case it
shall appear by the log books of such ships
that they have not departed from those seas
till the end of sixteen weeks from the day
they respectively sailed from the ports
where they were surveyed and cleared out;
be it therefore further enacted, That any
owner or owners of any ship or vessel shall
be allowed and intitled to receive the
bounty granted by the said act, for any
ship which shall have proceeded, or shall
proceed upon the said whale fishery from
any port of Great Britain, or the islands of
Guernsey, Jersey, or Man, after the first[xciii]
day of January one thousand seven hundred
and ninety, and shall have sailed, or
shall sail from the port where she was surveyed
and cleared out, directly on her intended
voyage on or before the tenth day
of April in each and every year, although
she shall depart from the Greenland seas or
Davis’s streights, or the adjacent seas, before
the tenth day of August then following,
and although she shall not be laden, if
of the burthen of three hundred tons, with
thirty tons of oil, or blubber in proportion
thereto, the blubber to be rated with respect
to the oil as three to two, and one ton and
a half of whale fins; or if she be of greater
or lesser burthen, with a quantity of oil or
blubber and whale fins in like proportion
to the tonnage of such ship, being the produce
of one or more whale or whales,
caught by the crew thereof, or with the
assistance of the crew of some other licensed
ship, in case it shall appear by the log book
of such ship that she had continued with
her crew in the said seas, diligently endeavouring
to catch whales or other creatures
living in those seas, and did not
depart from thence till the expiration of
sixteen weeks from the time of her sailing
from the port where she shall have been
surveyed and cleared out; provided such
ship shall not have touched at any other
port during her voyage, and shall have
complied with all the other regulations,
conditions, and restrictions, imposed by
the said act.


[xciv]


28 Geo. III,
cap. 20, recited,
and
after passing
this act the
three ships
entitled to the
bounties
thereby granted
on doubling
Cape Horn, or
passing
through the
Streights of
Magellan to
be entitled
thereto, if
they shall not
return in less
than 16
months, and
by Dec. 10, in
the second
year after
clearing out.


3. And whereas by an act passed in the
twenty-eighth year of his present Majesty’s
reign, intituled, An act for amending an
act, made in the twenty-sixth year of his
present Majesty’s reign, for the encouragement
of the southern whale fishery, and
for making further provisions for that
purpose, the three ships or vessels, which
are intitled to the premiums therein
granted on their doubling Cape Horn, or
passing through the Streights of Magellan,
are required not to return in less time
than eighteen months, and it is thought
sufficient that such ships or vessels should
be obliged to continue out no longer than
sixteen months; be it therefore further
enacted by the authority aforesaid, That
the owner or owners of such of the said
three ships or vessels which shall sail after
the passing this act, shall be intitled to
the said additional premiums, granted by
the said act of the twenty-eighth year of
his present Majesty’s reign, under the conditions,
regulations, and restrictions, in
the said act mentioned, in case such ships
or vessels shall not return in less time than
sixteen months, from the time of her
clearing out, and on or before the first
day of December, in the second year after
that in which such ship or vessel shall have
fitted and cleared out.


Owners of
vessels complying
with
the other conditions
of the
recited acts,
to be entitled
to the premiums,
tho’
they do not
clear out
specially for
the latitudes
therein specified.


4. And whereas doubts have arisen
whether the owner of any ship or vessel
shall be intitled to the premiums granted[xcv]
by the said last mentioned acts passed in
the twenty-sixth and twenty-eighth years
of his present Majesty’s reign, unless such
ship or vessel shall have cleared out specially
for the respective latitudes therein
specified; be it further declared and
enacted by the authority aforesaid, That
the owner or owners of any ship or vessel
shall not be obliged to clear out specially
for the respective latitudes specified in
the said acts, but shall be intitled to the
premiums thereby granted, on complying
with all the other conditions, regulations,
and restrictions, imposed by the said acts.


26 Geo. III,
cap. 41. 26 Geo. III,
cap. 50,
and 28
Geo. III, cap.
20, recited.
After Jan. 1,
1790, any
master permitting
an
apprentice,
indentured
pursuant to
the recited
acts, to quit
his service
before the
expiration of
his term, to
forfeit 50l.;
unless such
apprentice
be discharged
before a magistrate,
or
turned over to
another master,
in the said
fisheries.


5. And whereas by an act, made and
passed in the twenty-sixth year of the reign
of his present Majesty, intituled, An act
for the further support and encouragement
of the fisheries carried on in the Greenland
Seas and Davis’s Streights, it is among
other things enacted, That every ship
shall have on board apprentices indentured
for the space of three years at the
least, who shall not exceed the age of
eighteen years, nor be under fourteen
years of age, at the time they shall be
so indentured, in the proportion of one
apprentice at the least for every thirty-five
tons burthen, and one fresh or green
man for every fifty tons burthen, which
apprentices and fresh or green men shall
be accounted in the number of men required
to be on board such ship as aforesaid:
And whereas by another act, made[xcvi]
and passed in the twenty-sixth year of his
present Majesty’s reign, intituled, An act
for the encouragement of the southern whale
fishery, it is among other things enacted,
That no premium granted by that act
shall be paid or allowed to any person or
persons whatever, for or on account of
any ship or vessel employed in the aforesaid
fishery, unless such ship or vessel shall
have on board an apprentice indentured
for the space of three years at the least;
for every fifty tons burthen of such ship
or vessel by admeasurement, every such
apprentice not exceeding the age of eighteen
years, nor being under fourteen years,
at the time he shall be so indentured: And
whereas by another act, made and passed
in the twenty-eighth year of the reign of
his present Majesty, intituled, An act for
amending an act, made in the twenty-sixth
year of his present Majesty’s reign, for the
encouragement of the southern whale
fishery, and for making further provisions
for that purpose, it is, amongst other
things, enacted, That the several additional
premiums granted by that act shall
be paid in such and the like manner, and
under such and the like conditions, rules,
regulations, and restrictions, as are directed
and prescribed in and by the said
act, made and passed in the twenty-sixth
year of the reign of his present Majesty,
intituled, An act for the encouragement of
the southern whale fishery: And whereas it
is expedient that provision should be made[xcvii]
to oblige the masters of ships or vessels, or
the persons to whom apprentices shall be
bound in pursuance of the acts herein-before
respectively recited, to keep such
apprentices in their service for the time
they shall be indentured: Be it therefore
further enacted by the authority aforesaid,
That, from and after the first day of
January one thousand seven hundred and
ninety, if the master of any ship or vessel,
or any other person or persons whatever,
to whom any apprentice or apprentices
shall be indentured pursuant to the said
herein-before recited acts, shall permit or
suffer any such apprentice or apprentices
to quit, leave, or depart, his or their
service on any pretence whatever, except
as herein-after is provided, before the
expiration of the term for which he or
they shall be bound, every such master or
other person shall forfeit and pay, for
each and every offence, the sum of fifty
pounds; to be recovered by action of
debt, bill, plaint, or information, in any
of his Majesty’s courts of record, in
which no wager of law, no essoin, nor
any more than one imparlance, shall be
allowed.


6. Provided nevertheless, That nothing
herein contained shall extend, or be construed
to extend, to inflict the aforesaid
penalty in any case where any apprentice or
apprentices shall be legally discharged
before a magistrate or justice of the peace,[xcviii]
or shall be turned over from one person to
another person, concerned in either of the
aforesaid fisheries, to serve the remainder
of his time in such fisheries, pursuant to
the directions of the said acts herein-before
recited.


No premium
to be paid under
the recited
acts, unless
the names of
the ships on
board which
apprentices
are bound to
serve, be inserted
in the
indentures.


7. Provided also, and it is hereby declared,
That no bounty or premium shall
be paid or allowed by virtue of the said
recited acts, or either of them, in any
case, unless there shall be inserted in the
indenture or indentures of each and every
apprentice or apprentices, who shall be
indentured by virtue of the said recited
acts, or either of them, or who shall be
turned over from one person to another,
pursuant to this act, the name or names
of the ship or vessel, or ships or vessels,
on board of which such apprentice or apprentices
is or are bound to serve.


This act not
to extend to
ships cleared
out, and
which shall
have sailed,
before the
commencement
thereof.


8. Provided also, That nothing in this
act shall extend, or be construed to extend,
to take away any bounty or premium
which may become due by virtue of
the said recited acts, or either of them,
in any case where the ship or vessel shall
have bona fide cleared out on the fishery,
and proceeded from Great Britain, before
the commencement of this act.




[xcix]


31 GEO. III. Cap. 29.




An act for establishing a court of civil jurisdiction
in the island of Newfoundland,
for a limited time.




Preamble. 15 Geo. III,
cap. 31,
and 26 Geo.
III, cap. 26,
recited.
His Majesty
may constitute
a court of civil
jurisdiction at
Newfoundland,
&c.


Whereas, by an act, passed in the
fifteenth year of his present Majesty’s
reign, intituled, An act for the encouragement
of the fisheries carried on from
Great Britain, Ireland, and the British dominions
in Europe, and for securing the return
of the fishermen, sailors, and others employed
in the said fisheries, to the ports thereof,
at the end of the fishing season, it was,
amongst other things, enacted, That all
disputes which should arise concerning the
wages of every and any such seaman or fisherman,
and all offences which should be committed
by every hirer or employer of such
seaman or fisherman against that act, should
and might be enquired of, heard, and determined;
and the penalties and forfeitures
thereby incurred should and might be recovered
in the court of session in the said
act mentioned, or in the court of vice admiralty
having jurisdiction in the island of
Newfoundland: And whereas, by another
act, passed in the twenty-sixth year of the
reign of his present Majesty, intituled,
An act to amend and render more effectual
the present laws now in force for encouraging[c]
the fisheries carried on at Newfoundland,
and parts adjacent, from Great Britain,
Ireland, and the British dominions in
Europe; and for granting bounties, for a
limited time, on certain terms and conditions;
so much of the said first-mentioned act, as
gives any jurisdiction to the court of vice-admiralty
for the said island of Newfoundland,
with respect to inquiring, hearing,
and determining disputes concerning the
wages of any seaman or fisherman, or any
offence committed by any hirer or employer
of such seaman or fisherman, or any
controversies or differences arising from
their contracts or agreements, should be,
and the same was thereby repealed: And
whereas the provisions made by the said first-mentioned
act, for the administration of
justice in civil cases, are insufficient, and
it is highly expedient that a court of civil
jurisdiction, having cognizance of all pleas
of debt, account, contracts respecting personal
property, and all trespasses against
the person, goods, or chattels, should be
established in the said island of Newfoundland,
for a limited time; be it therefore
enacted by the King’s most excellent Majesty,
by and with the advice and consent
of the Lords spiritual and temporal, and
Commons, in this present Parliament assembled,
and by the authority of the same,
That it shall and may be lawful for his
Majesty, by his commission under the
great seal, to institute a court of civil
jurisdiction, with full power and authority[ci]
to hear and determine, in a summary
way, all pleas of debt, account,
contracts respecting personal property, and
all trespasses committed against the person
or goods and chattels in the island of
Newfoundland, and islands and parts adjacent,
or on the banks of the said island of
Newfoundland; which court shall consist
of a chief judge, to be appointed by his
Majesty, and two assessors, to be appointed
by the governor of the said island, from
time to time; which chief judge, together
with any one of such assessors, shall have full
power and authority to hear and determine
all pleas by this act cognizable by the said
court of civil jurisdiction; and shall have
such clerks, and other ministerial officers,
as the chief judge shall think proper to
appoint; and that such salaries shall be
paid to the chief judge aforesaid, as his
Majesty, his heirs and successors, shall
approve and direct; and such salaries be
paid to the assessors, and to the clerks,
and ministerial officers aforesaid, as shall be
approved by the said chief judge, with the
consent of the governor of the island of
Newfoundland; which several salaries shall
respectively be in lieu of all other profits
and emoluments whatever; and such court
shall be a court of record, and shall have
all such powers as by the law of England
are incident and belonging to a court of
record; any thing in the said first-mentioned[cii]
act contained to the contrary notwithstanding.


The manner
in which the
court is to
proceed.


2. And be it further enacted, That the
said court shall proceed by complaint in
writing, and by summons of the defendant,
in all cases where the complaint is for a
sum under five pounds; and by arrest of
the defendant, and attachment of his goods
and debts, or of his effects in the hands of
any other person, where the complaint is
for more than the sum of five pounds; and
such court shall have power and authority
to pass judgement, and give costs, in such
pleas, and award execution, either by levy
and sale of the goods and chattels, or arrest
of the person of the plaintiff or defendant,
and also of the goods, debts, and
effects of the defendant so attached.


An appeal to
his Majesty in
council may be
made, where
judgement is
given for more
than 100l.


3. Provided always, That in all pleas,
where the sum for which judgement shall
be given shall amount to more than one
hundred pounds, it shall be lawful for the
plaintiff or defendant, as the case may be,
to appeal to his Majesty in council, and
upon notice of such appeal being signified
to the chief judge of such court, within
fourteen days after such judgement passed,
and security given, to the satisfaction of
the said chief judge, for prosecuting such
appeal, the execution of such judgement
shall be stayed.


[ciii]


While the governor
is resident,
disputes
concerning
seamen’s
wages to be
heard only in
the court of
civil jurisdiction;
when he is not
resident, they
may be heard
in the court of
session.


4. And be it further enacted, That
during the time the governor of the said
island shall continue to be resident in the
said island, or parts adjacent, no disputes
which shall arise concerning the wages of
any seaman or fisherman shall be heard and
determined in the court of session mentioned
in the said first-mentioned act, but only in
the court of civil jurisdiction which shall
be instituted by virtue of this act.


5. Provided always, That nothing in
this act contained shall extend to prevent
the court of session aforesaid from hearing
and determining such disputes as aforesaid,
when the governor shall not be resident in
the said island, or parts adjacent.


Limitation of
actions. Continuance
of act.


6. And be it further enacted, That no
suit shall be commenced in the said court
of civil jurisdiction where the cause of action
shall have arisen more than two years before
such commencement, nor shall be heard
and determined in the said court of civil
jurisdiction, except during the residence of
the governor within the limits of his government;
and that this act shall commence
from the tenth day of June one
thousand seven hundred and ninety-one,
and shall have continuance for one year,
and unto the end of the then next session
of Parliament.




[civ]


32 GEO. III. Cap. 46.




An act for establishing courts of judicature
in the island of Newfoundland, and the
islands adjacent.




Preamble. His Majesty,
under the
great seal,
may institute
a court of
criminal and
civil jurisdiction
at Newfoundland,
&c.


For the better administration of justice
in the island of Newfoundland, and
the islands adjacent; be it enacted by the
King’s most excellent Majesty, by and with
the advice and consent of the Lords spiritual
and temporal, and Commons, in this
present parliament assembled, and by the
authority of the same, That it shall and
may be lawful for his Majesty, by his commission
under the great seal, to institute a
court of criminal and civil jurisdiction, to
be called, The supreme court of judicature of
the island of Newfoundland, with full power
and authority to hold plea of all crimes and
misdemeanors committed within the island
of Newfoundland, and on the islands and seas
to which ships or vessels repair from the
island of Newfoundland, for carrying on the
fishery, and on the banks of Newfoundland,
in the same manner as plea is holden of
crimes and misdemeanors committed in
that part of Great Britain called England,
and also with full power and authority to
hold plea, as herein-after mentioned, of all
suits and complaints of a civil nature,
arising within the island of Newfoundland,
and on the islands and seas aforesaid, and
on the banks of Newfoundland; which[cv]
court shall determine such suits and complaints
of a civil nature, according to the
law of England, as far as the same can be
applied to suits and complaints arising in
the islands and places aforesaid; and the
said court shall be a court of record, and
shall be holden by a chief justice to be appointed
by his Majesty, who shall have full
power and authority to enquire of, hear,
and determine all crimes and misdemeanours,
suits, and complaints, cognizable in
the said court; and such court shall have
such clerks and ministerial officers as the
chief justice shall think proper to appoint;
and such salary shall be paid to the said
chief justice, as his Majesty, his heirs and
successors, shall approve and direct, and
such salaries be paid to the clerks and ministerial
officers aforesaid, as shall be approved
by the chief justice, with the consent
of the governor of the island of Newfoundland,
which several salaries shall respectively
be in lieu of all other profits and
emoluments whatsoever.


The governor,
with the advice
of the
chief justice,
may institute
surrogate
courts, etc.


2. And be it further enacted, That it
shall be lawful for the governor of the
island of Newfoundland, with the advice of
such chief justice, from time to time, to
institute courts of civil jurisdiction, to be
called surrogate courts, in different parts of
the island of Newfoundland, and the islands
aforesaid, as occasion shall require, with
full power and authority to hear and determine,
in the like summary way, all suits[cvi]
and complaints of a civil nature arising
within the island of Newfoundland, and on
the islands and seas aforesaid, and on the
banks of Newfoundland; which courts shall
respectively be courts of record, and shall
determine according to the law of England,
as far as the same can be applied to suits
and complaints arising in the islands and
places aforesaid; and the said courts respectively
shall be holden by a surrogate,
to be appointed from time to time by the
governor of the said island, with the approbation
of such chief justice, and shall
have full power and authority to hear and
determine all suits and complaints cognizable
in the said court; and the said court
shall have such clerks and ministerial officers,
with such salaries as the chief justice
shall appoint, which salaries shall be in lieu
of all profits and emoluments whatever.


Mode of proceedings
in
the supreme
and surrogate
courts.


3. And be it further enacted, That it
shall be lawful for the said supreme courts
and surrogate courts respectively, when
any suit or complaint shall be depending
therein, to cause to appear from day to
day, all persons interested in the matter in
dispute, and to examine upon oath such of
them as it shall be deemed proper, for better
discovering the truth, and thereupon,
and after due consideration of all circumstances,
to make such order, judgement, or
decree therein, and award such damages
and costs, as the case shall require; and
that in all cases where the cause of any[cvii]
suit or complaint shall not exceed five
pounds, the party who is to answer such
suit or complaint shall be made to appear
in court by summons, and in all cases
where such summons shall be disobeyed, or
where the cause of any suit or complaint
shall exceed five pounds, then that the party
who is to answer such suit or complaint
may be caused to appear by attachment of
his or her goods, debts, or effects, or by
arrest of the person, and that the execution
of any order, judgement, or decree
may be enforced by attachment of the
goods, debts, or credits of the party, or
by arrest of the person against whom such
order, judgement, or decree shall be made;
and that it shall and may be lawful for the
said chief justice and surrogates respectively,
to authorize some person in his or their
absence respectively, to issue process, and
do all acts appertaining to the said supreme
court, and surrogate courts respectively,
save and except the enquiring of, hearing,
and determining of any crime or misdemeanor,
or any suit or complaint of a civil
nature.


In actions
exceeding 10l.
jurors may
be summoned,
but if a sufficient
number
should not
appear, two
assessors, with
the chief justice
or surrogate,
may
proceed to
trial.


4. And be it further enacted by the authority
aforesaid, That, where the cause of
action shall exceed the sum of ten pounds,
and it shall be prayed by the defendant in
such suit or complaint, that a jury may
be summoned to try such action, it shall
be lawful for the said chief justice and surrogates
respectively, and he and they are[cviii]
hereby respectively required to cause twenty-four
persons to be summoned, of whom
twelve shall be a jury for the trial of such
action, and to proceed therein according
to law: Provided always, That, if a number
of jurors sufficient for the trial of such
action having been duly summoned shall not
appear to be sworn, it shall and may be lawful
for the governor of the said island, and the
surrogates in their several courts respectively,
to nominate and appoint two proper
persons to be assessors to the said chief
justice, who, together with the said chief
justice or surrogates respectively, shall proceed
to the trial of such action, in like
manner as if such jury had not been
prayed.


Appeals may
be made from
judgements for
sums exceeding
40l. in the
surrogate
court, and exceeding
100l.
in the supreme
court.


5. And be it further enacted, That upon
any decree or judgement given in a surrogate
court, for any sum exceeding forty
pounds, it shall be lawful for the party
against whom such decree or judgement
shall be given, to appeal therefrom to the
supreme court, having first given notice of
such intention, and having entered into a
security to the surrogate, in double the
sum for which such judgement or decree
was given or made, within two days after
making or giving such judgement or decree,
for duly prosecuting such appeal;
and upon any decree or judgement given
in the supreme court, for any sum exceeding
one hundred pounds, it shall be lawful
for the party, against whom such decree or[cix]
judgement shall be given or made, to appeal
therefrom to his Majesty in council,
having first given notice of such intention,
and having entered into security, to be approved
by the chief justice, in double the
sum for which such judgement or decree
was given or made, within two days after
the giving or making of such judgement or
decree, for duly prosecuting such appeal;
and in all cases of appeal, as soon as notice
shall be given, and security entered into as
aforesaid, execution shall be stayed, but not
otherwise.


When goods
are attached,
if it shall appear
that the
party is insolvent,
the
court shall order
his effects
to be collected
and distributed.


6. And whereas it will greatly contribute
to the advancement of the trade and
fishery of Newfoundland, if such effects as
persons becoming insolvent in the said
island of Newfoundland, and the islands
aforesaid, were possessed of or entitled unto,
within the said island, or on the islands or
seas aforesaid, or on the banks of Newfoundland,
should be divided among their
creditors with more equality than hath
hitherto been practised; be it further enacted,
That, as often as the goods, debts,
and credits of any person shall be attached,
and it shall be made appear to the court
out of which the process of attachment hath
issued, that the goods, debts, and credits
so attached are not sufficient to pay twenty
shillings in the pound to all those who shall
be creditors by reason of debts contracted
within the island of Newfoundland, and on[cx]
the islands and seas aforesaid, or on the
banks of Newfoundland, it shall be lawful
for such court to summon the party whose
goods, debts, and credits are so attached,
together with the plaintiff or plaintiffs who
have sued out any attachment, and also such
persons who are known to be creditors as
aforesaid of the defendant, to appear in
court at a certain day, and if upon a due
examination of the defendant, and the said
creditors, it shall appear that he or she is
insolvent, the court shall declare him or
her insolvent accordingly, and shall immediately
proceed to take order for discovering,
collecting, and selling the effects and
debts of such person, and distributing the
produce thereof rateably amongst all the
said creditors of such person so declared
insolvent, or to authorize some person or
persons, being a creditor or creditors, to
perform the same, such person or persons
first entering into a recognizance in such
sum as the court shall think fit, for the due
performance of his or their duty therein;
and that such court shall from time to time
make such order therein as shall be deemed
proper, for better discovering, collecting,
and selling the effects and debts, and making
a rateable distribution thereof among the
said creditors.


Directions for
the distribution
of the
effects of insolvent
persons.


7. And be it further enacted, That in
the distribution to be made of the estate
and effects of such person so declared insolvent,[cxi]
every fisherman and seaman employed
in the fishery, who shall be a creditor
for wages become due in the then current
season, shall first be paid twenty shillings
in the pound, so far as the effects will go;
and in the next place, every person who
shall be a creditor for supplies furnished
in the current season, shall be paid twenty
shillings in the pound; and lastly, the said
creditors for supplies furnished in the then
current season, and all other creditors
whatsoever, shall be paid equally in proportion,
as far as the effects will go, provided
that the said creditors for supplies
furnished in the then current season shall
not be paid more than twenty shillings in
the pound on the whole of their debt.


Certificate of
the court to
be a bar to
suit for debt
prior to the
declaration of
insolvency.


8. And be it further enacted, That if
such insolvent person shall make a true disclosure
and discovery of all his or her
goods and effects whatsoever, and shall
conform him or herself to the order and
direction of the said court, the same shall
and may (with the consent of one half in
number and value of his or her creditors)
be certified by the said court, and such
certificate, when pleaded, shall be a bar to
all suits and complaints for debts contracted
within the island of Newfoundland,
and on the islands and seas aforesaid, and
on the banks of Newfoundland, prior to
the time when he or she was declared insolvent.


[cxii]


Suits, where
the cause shall
arise before
Aug. 1, 1792,
to be commenced
within
six years.


9. And be it further enacted, That
where any cause of action shall have arisen
before the first day of August one thousand
seven hundred and ninety-two, no suit or
complaint shall be commenced thereon
at the distance of more than six years
from the time when such cause of action
arose.


10. And be it further enacted, That
the said chief justice, or any person or persons
appointed by him for that purpose,
under his hand and seal, shall have power
to grant administration of the effects of
intestates, and the probate of wills; and
that the effects of deceased persons shall
not be administered within the island of
Newfoundland, or on the islands and seas
aforesaid; or on the banks of Newfoundland,
unless administration thereof, or probate
of wills respecting the same, shall have
been duly granted by such authority as
aforesaid.


31 Geo. III,
cap. 29, continued
till the
opening of the
supreme court.


11. And be it further enacted, That
an act passed in the last session of Parliament,
intituled, An act for establishing a
court of civil jurisdiction in the island of
Newfoundland, for a limited time, which
act was to have continued in force from
the tenth day of June one thousand seven
hundred and ninety-one, for one year,
and unto the end of the then next session[cxiii]
of Parliament, shall be and continue in
force until the opening of the supreme
court instituted by virtue of this act, and
no longer; and every suit or complaint
which shall at that time be depending in
the said court of civil jurisdiction, shall
and may be proceeded upon in the said
supreme court, in the same manner as any
suit or complaint originally commenced in
the said supreme court.


No court, except
the supreme
and
surrogate
courts, to
hold pleas of
a civil nature. Vice admiralty
court may
hold plea of
maritime
causes (except
for wages),
and causes of
revenue. Disputes respecting
wages
of seamen, &c.
may be heard
in the court of
sessions, or before
two
justices.


12. And be it further enacted, That
it shall not be lawful for any court in the
island of Newfoundland, or islands aforesaid
(except the supreme court and the
surrogate courts appointed by virtue of this
act) to hold plea of any suit or complaint
of a civil nature, any law, custom, or
usage, to the contrary notwithstanding:
Provided nevertheless, that the court of
vice admiralty having jurisdiction in the
said island, shall and may hold plea of maritime
causes (except only the wages of
seamen and fishermen, which are to be
heard and determined in manner herein-after
directed), and causes of the revenue,
as heretofore practised and used: Provided
also, that all disputes which shall arise concerning
the wages of any seaman or fisherman,
and all offences which shall be committed
by any hirer or employer of such
seaman or fisherman, against this or any
other act, relating to the island of Newfoundland,
or the islands and seas aforesaid,
or the fishery thereof, shall and may be
heard and determined, and the penalties[cxiv]
and forfeitures thereby incurred shall and
may be recovered in the court of sessions,
or before any two justices of the peace.


Suits for debts
not exceeding
40s. may be
determined in
a summary
way, &c.


13. Provided also, and be it enacted,
That it shall be lawful for the court of session,
in a summary way, to hear and determine
all suits for the payment of debts
not exceeding forty shillings, and not contracted
more than one year before the commencement
of such suits respectively; and
it shall be lawful for the court of session, or
such two justices respectively, to award
costs therein; and such determination and
award shall be final, and shall be carried
into execution by attachment and sale of
the goods and effects of the party against
whom the determination was made.


Chief justice
to settle forms
of process,
and appoint
the fees to be
taken in the
courts, etc.
Fees in surrogate
courts to
be accounted
for in the supreme
court.


14. And be it further enacted, That it
shall be lawful for the said chief justice to
settle such forms of process, and such rules
of practice and proceeding, for the conduct
of all pleas, suits, and complaints, and for
the dispatch of the business of the said supreme
court, and surrogate courts, and of the
business in the courts of session, or before any
one or more justices of the peace respectively,
and to appoint such reasonable fees to be taken
for the conduct and dispatch of pleas, suits,
complaints, and other business as aforesaid,
and for the granting administration of the
effects of intestates, and for the probate of
wills, as shall seem necessary and proper for
expediting matters with the most convenience
and least expence to the parties concerned
therein; and such process, and rules[cxv]
of practice and proceeding, shall be followed
and obeyed; and such fees shall be
paid accordingly, and no other; and that
all such fees received in any surrogate court
shall be paid and accounted for by the surrogate
in the said supreme court; and that
it shall be lawful for the said chief justice,
and he is hereby required to settle and limit
what fees and poundage shall be taken
by the sheriff of Newfoundland, and the
same shall be taken, and none other.


For the recovery
and application
of
penalties.


15. And be it further enacted, That all
fines, penalties, and forfeitures, imposed
by any act of Parliament made, or which
shall hereafter be made, relating to the
island of Newfoundland, or the fishery
thereof, may be recovered in a summary
way in the said supreme court, or in any
surrogate court; and every penalty and
forfeiture of the sum of ten pounds or
under, may be recovered in the court of
session, or before any one or more justices
of the peace; and all fines, penalties, and forfeitures
imposed, paid, or levied in any surrogate
court, or in any court of session, or before
any one or more justices of the peace,
shall be forthwith estreated, and paid into
the said supreme court by the surrogate,
or by the justice or justices of the peace
respectively, before whom they were recovered;
and it shall be lawful for the said
supreme court to issue process for better
compelling such justices and surrogates to
bring to account all monies which ought to
be so paid and accounted for as aforesaid;
and all money arising from such fees, fines,[cxvi]
penalties, and forfeitures shall be applied and
appropriated towards defraying the expence
of carrying this act into execution.


Limitation
of actions. General issue. Treble costs.


16. And be it further enacted, That
if any action or suit shall be brought or
commenced against any person for any
thing done in pursuance of this act, such
action or suit shall be commenced within
six months next after the matter or thing
done; and the defendant in such suit or
action may plead the general issue, and
give this act and the special matter in evidence
at any trial to be had thereupon;
and if a verdict shall pass for the defendant,
or the plaintiff shall be nonsuited, or discontinue
his action after the defendant has
appeared, or if judgement shall be given,
upon any verdict or demurrer, against the
plaintiff, the defendant shall recover treble
costs, and have the like remedy for the same
as defendants have in other cases by law.


No officer of
the customs
capable of acting
as a justice.


17. And be it further enacted by the
authority aforesaid, That no officer whatever,
being in the service of his Majesty’s
customs in the island of Newfoundland,
shall be capable of acting as a justice of
the peace in and for the said island.


Continuance
of this act.


18. And be it further enacted, That
this act shall continue in force until the
tenth day of June one thousand seven hundred
and ninety-three, and from thence to
the end of the then next session of Parliament.


FINIS.






FOOTNOTES




[1] While this was pending at the board, a letter
was read at the committee from Sir Lionel Jenkins,
touching the continuance of the king’s sovereignty,
in case the plantation were deserted; wherein is stated
the advantage the French might take by the absence
of the English, and the methods proper to be
followed in such case, to maintain the king’s dominion
and sovereignty.






[2] Newfoundland. Ent. in initio. Bund. in initio.






[3] Ent. A. 36 to 58.






[4] Ibid. 58. 68.






[5] Entries A. 447.






[6] Entries, C. 104, 105, 106.






[7] Entries, C. 208.






[8] Ibid. 341.






[9] Entries, D. 30.






[10] Ibid. 33.






[11] Entries, D. 34.






[12] Entries, D. 44 to 54.






[13] Vid. Bund. I. No. 75. vid. ant. p. 7.






[14] Entries, 142, 144, 147.






[15] Entries, D. 249.






[16] Ibid. 272.






[17] Entries, D. 337.






[18] Entries, D. 406, 408.






[19] Ibid. 462.






[20] Entries, D. 480, 496.






[21] Entries, E. 124, 126.






[22] Ibid. 154.






[23] Entries, E. 164.






[24] Ibid. 204.






[25] Ibid. 241, 242.






[26] Entries, E. 416.






[27] Entries, E. 512.






[28] Bund. M. 99.






[29] See Captain Taverner’s Remarks, Feb. 1715-16.
Bund. M. 15.






[30] Bund. M. 98.






[31] 8th April 1723. Ent. F. 36.






[32] December 19th, 1728. Bund. O. 34.






[33] Ent. F. 158.






[34] Entries F. 176 to 234. Bund. O. 40.






[35] Vid. ant. pa. 34.






[36] Entries, D. pa. 337.






[37] Entries, D. pa. 344.




This is from Captain Taverner’s Letter of Remarks
the 20th of March 1713-4.






[38] Entries, D. pa. 494.




Commodore Scott’s Letter, the 16th of November
1718.






[39] Bund. O. 31. Letter from Lord Vere Beauclerck.
St. John’s, 19th August 1728.






[40] Ent. E. 132. From Captain Kempthorne’s
letter, October 1715.






[41] Ent. E. 1411. From Captain Passenger’s answers
to heads of inquiry, October 1718.






[42] Ent. E. 401. From Captain Passenger’s answers
to heads of inquiry, October 1718.






[43] Ent. D. 426. 429. From Captain Leake’s letter,
September 27th, 1714.






[44] Ent. D. 445. From Mr. Cuming’s representation,
February 1714-5.






[45] Memorial of the merchants of Poole, in answer to
a letter from the board, 3d December 1715. Another,
word for word the same, came from Weymouth, vid.
Bund. M. No. 4, 5.






[46] The memorial from Exeter, 30th Jan. 1715-6.
Bund. M. No. 6.






[47] Bund. M. No. 8.






[48] Bund. O. 49.






[49] 27 April 1730. Bund. O. 70.






[50] Bund. O. 71.






[51] Bund. O. 73.






[52] Bund. O. 75.






[53] Ibid. O. 79.






[54] Bund. O. 84.






[55] Bund. O. 104, 105.






[56] 29th of December 1730. Bund. O. 109.






[57] The correspondence to this effect may be seen,
Bund. O. 108, and so on through that volume.






[58] 30th of March, 1730. Bund. O. 119.






[59] Ent. F. 410.






[60] Ibid. 420. Bund. P. 22.






[61] Ent. G. 203. in April 1750.






[62] Vid. ant. p. 6.






[63] May 23, 1754. Ent. G. 329.






[64] Ent. G. 341, 343, 345.






[65] 6th December 1763.






[66] 6th March 1764. Bund. S. 57, 58.






[67] 21st March 1764. Bund. S. 61. Ent. H. 236, 240.






[68] 30th of March 1764. Ent. H. 260.






[69] 20th of April, 1764. Entries, H. 337.






[70] 11th of December 1764.






[71] Ibid.






[72] Bund. T. 50.






[73] 5th of June 1765. Entries,
H. 438.






[74] 6th of May 1765. Entries, H. 435.






[75] 29th of March 1766. Entries, H. 461.






[76] Ent. H. 470. 500.






[77] Ent. I. 229.






[78] Entries, I. pa. 249.






[79] Sect. 1.






[80] 1785, January 14, 17, 20, 24, 28.






[81] 1785, January 29, 31.






[82] 1785, Feb. 5th.






[83] 1785, Dec. 7, 9, 12, 13—1786, Jan. 10, 11.






[84] January 14.






[85] 1786, January 16, 17, 18, 25, 30—Feb. 1, 3,
7, 10, 14—March 11.






[86] 1786, March 17.






[87] 1788, Feb. 9—March 26—April 3.






[88] Boni judicis est ampliare jurisdictionem.