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Title: History of the government of the island of Newfoundland With an appendix containing the Acts of Parliament made respecting the trade and fishery Author: John Reeves Release Date: May 7, 2019 [EBook #59449] Language: English Character set encoding: UTF-8 *** START OF THIS PROJECT GUTENBERG EBOOK HISTORY, GOVERNMENT, OF NEWFOUNDLAND *** Produced by Louise Davies, A www.PGDP.net Volunteer, Dave Morgan and the Online Distributed Proofreading Team at http://www.pgdp.net 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 G O VE R N M E N T 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. LO N DO N: 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. PART I. From Queen Elizabeth to Stat. 10 and 11 Will. 3. Different Charters granted. 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 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. 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 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. 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. 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 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 shore, together with the fishing of all sorts of fish, saving to the English the free liberty of fishing, salting, and drying of fish. [1] [2] [3] [4] [5] [6] [7] Rules and regulations of the star-chamber. Of appointing a Governor. 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. 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 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 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 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. 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 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 [8] [9] [10] [11] [12] [13] Additional Rules. Report against a Governor in 1675. condition of the fishery (which, they said, was likely to fall into the hands of the French), by 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 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 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. 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 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 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 could allege in behalf of a colony, their lordships made report to his majesty, of their opinion thereon. 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 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 [14] [15] [16] [17] [18] [19] Sir John Berry’s Advice. 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 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 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 or opposing regulations and establishments in the island. 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 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 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 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 [20] [21] [22] [23] [24] [25] Bye Boat-keepers, what. Question of a Colony argued. 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, 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 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 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. 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 command, begun now to be much disused. 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, 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]. 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. [26] [27] [28] [29] [30] [31] [32] PART II. From Stat. 10 & 11 Will. 3, to A. D. 1728. Mr. Larkin’s Observations in 1701. 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 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 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. 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 to the state of the Plantations, and the execution of the laws of trade and navigation. 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; 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 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 [33] [34] [35] [36] [37] Character of the fishing admirals. Character of the Commanders. Want of Police. 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 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 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. 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 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. 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 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. 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 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 [38] [39] [40] [41] [42] [43] [44] Opinion of the Board 106. Representation 1708. For the sea commanders to command at land. times of king William and Queen Anne, would apply to 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 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...