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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: Reeves, John
Language: English
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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. Upright text within passages of
italicised text is indicated ~like this~.
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
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.
[Sidenote: 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._
[Sidenote: 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 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.
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.
[Sidenote: 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
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.
[Sidenote: 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 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 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.
[Sidenote: 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 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.
[Sidenote: 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 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 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.
[Sidenote: 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 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 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.
[Sidenote: 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 command,
begun now to be much disused.
[Sidenote: 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, 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.
PART II.
[Sidenote: 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 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.
[Sidenote: 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; 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 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.
[Sidenote: 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 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.
[Sidenote: 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 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.
[Sidenote: 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 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 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 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.
[Sidenote: Opinion of the Board 106.]
In the year 1702, the war with France 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 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, 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].
[Sidenote: Representation 1708. For the sea commanders to command at
land.]
The board then proceeded to make a 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 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].
[Sidenote: 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; 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, 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].
[Sidenote: 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, 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
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, 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].
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 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.
[Sidenote: 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.
[Sidenote: 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 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.
[Sidenote: 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 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 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
source of great discontent, and so continued for several years[29].
[Sidenote: 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 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.
[Sidenote: 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 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].
[Sidenote: 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.”
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.
[Sidenote: 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, 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_ 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 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 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 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_.
[Sidenote: 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_, 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_.
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 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 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.
[Sidenote: 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 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 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;
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].”
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, 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. 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 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 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 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 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, 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 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 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 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 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 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.
[Sidenote: 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 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 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
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 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 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.
PART III.
[Sidenote: 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 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.
[Sidenote: Justices appointed.]
_Mr. Osborn_, upon his arrival, proceeded 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 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].
[Sidenote: 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 & 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 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 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].
[Sidenote: 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 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, 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.”
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 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 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].”
[Sidenote: 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
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, 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
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 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.
[Sidenote: 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 voyage and residence, and the
certain loss of one season’s fishing.
It had been provided by stat. 10 and 11 Will. 3. that such capital
felonies might be tried in any county in England; and in the commission
of the peace lately given, this policy was so closely adhered to, that
the justices were therein restrained from proceeding _in cases of doubt
and difficulty, such as robberies, murders, and felonies, and all other
capital offences_. It appeared to the board of trade that this scruple
might now be got over; and they proposed inserting in the commission
that was to be given to _Captain Vanbrugh_, a clause, authorising him
to appoint _commissioners of Oyer and Terminer_; but the board wishing
to be assured that the king’s prerogative was not restrained in this
particular, by the above provision in stat. 10 and 11 Will. 3. they
consulted the attorney and solicitor general, who thought the king’s
power was not abridged by that act. The board, in their representation
to his majesty, state the example of a commission being granted to the
commodores with other persons, for trials of piracy, as a precedent
for trusting them with this authority to issue commissions for trying
felons; and that it was no more than was given to other governors of
plantations. But they inform his majesty, that as this power might be
too much to be entrusted in the hands of judges and juries very little
skilled in such proceedings, they had added an article, which restrained
the governor from allowing more than one court of Oyer and Terminer in a
year, and that only when he was resident; and he was further instructed,
not to suffer any sentence to be executed, till report thereof be made to
his majesty[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].
[Sidenote: 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.
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 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.
[Sidenote: 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 _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 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].
[Sidenote: The Peace 1763.]
After the conclusion of the peace in 1763, a more favourable opportunity
seemed to present itself for doing something 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,
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 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 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.
[Sidenote: 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, 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 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 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 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].
[Sidenote: 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 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.
[Sidenote: 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, 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].
[Sidenote: 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 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.
[Sidenote: 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 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].
[Sidenote: 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 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 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 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 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 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].
[Sidenote: 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, 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; 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 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.
PART IV.
[Sidenote: 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.
[Sidenote: 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 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 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].
[Sidenote: 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 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 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.
[Sidenote: 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.
[Sidenote: 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.
[Sidenote: Review of the Courts of Newfoundland.]
The first regulation that looked at all 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.
[Sidenote: 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, which might be considered as partaking both of a civil and
criminal authority. But this also, like the former, was limited as to
the persons; no authority was given that could be exercised over the
merchants and adventurers, who seem to be considered by this act as
persons who might have right done them; but against whom it was not
necessary to do any justice whatsoever—for, by the rules and orders
of this act, the fishing admirals would be obliged to see they had
ships-room; and their seamen and fishermen would be kept quiet and
under controul; but if these adventurers had taken possession of any
_fishing rooms, stages, flakes, or other conveniency for the fishery_,
the admirals had no jurisdiction to call them to account, and to make
restitution to the right owner, their jurisdiction in that particular
being confined to the _masters of fishing ships, inhabitants, and bye
boat-keepers_.
The merchants and adventurers being therefore subjected by this act to
no controul or authority whatsoever, when they begun to settle, and to
have mercantile dealings, to a great amount, they had nothing to do but
to take the law into their own hands; and having possessed themselves
of plantations or fish, or any thing else, in payment of debts, real
or pretended, there subsisted, under this act, no power whatsoever
to call them to account; and it was, no doubt, for this reason, that
the merchants have so constantly adhered to the support of this act,
declaring that a free fishery, conducted under the policy of this act,
was all they wanted, and complaining that every regulation made since
that act has invariably operated to injure the trade and fishery. It
was indeed the policy of this country to support a free fishery there,
for ships going from hence, and to prevent settlement. So far the views
of the government and the interest of the merchants concurred; but the
application of this principle had the effect of leaving the island to
the mercy of the adventurers, who found it their interest at length
even to promote _settlement_ to a certain degree; contrary to their own
declarations, and to the policy of stat. 10 & 11 Will. 3.; for no part
of which they seem to have had any value, but the feeble judicature and
police it gave the island; in consequence of which, they saw the whole
fishery abandoned to their sole will and pleasure.
These observations upon the incomplete form of this judicature and
police, suggest themselves upon the bare reading of the act; but the
experience of the manner in which it was executed, shewed all this in a
more aggravated appearance. It has been too often repeated in the course
of this historical enquiry to need repetition here, that the admirals
were the servants of the merchants, inasmuch as they were the masters
of some of their ships; that in many cases, therefore, justice was not
to be expected from them; that is, in cases where their owners were
concerned. In many others, where their owners or themselves were not
concerned, there was always a partiality towards the description and
class of persons with which they were connected; and a poor planter, or
inhabitant, (who was considered as little better than a law-breaker in
being such) had but small chance of justice, in opposition to any 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 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 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 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
of the king’s ships, when they came to the island in the summer season.
[Sidenote: 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_, 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, who were always their creditors, and were
generally regarded as their oppressors.
[Sidenote: 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, by persons who had nothing for their guide but the
rectitude of their intentions, and a very honourable disposition.
[Sidenote: 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 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.
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, 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.
[Sidenote: The governors cease to hold courts.]
The governor got well quit of this business, and he proceeded, during
the 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; 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.
[Sidenote: 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 _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.
[Sidenote: 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.
[Sidenote: 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; 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; 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.
[Sidenote: 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.
[Sidenote: An Act passed for a Court of Civil Judication.]
However, no court was then established; and the court of common pleas,
instituted 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.
APPENDIX.
10 & 11 _Gul._ III. Cap. 25.
_An act to encourage the Trade to ~Newfoundland~._
[Sidenote: 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 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, (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.
[Sidenote: 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.
[Sidenote: 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 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.
[Sidenote: 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 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.
[Sidenote: 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.
[Sidenote: 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; 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.
[Sidenote: 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.
[Sidenote: By-boat keepers not to meddle with house, stage, _etc._
belonging to any fishing ships.]
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.
[Sidenote: 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 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.
[Sidenote: 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.
[Sidenote: 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 shall be left by the owner
or owners, to the end that the right owners thereof may know what is
become of them.
[Sidenote: 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 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.
[Sidenote: 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.
[Sidenote: 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.
[Sidenote: 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 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.
[Sidenote: 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.
[Sidenote: 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 12_d._ _per_ lb. charged in the tunnage acts, nor for whale fins,
_etc._ taken in _Newfoundland_.]
17. And whereas by an act of Parliament, 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, 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.
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._
[Sidenote: 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
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 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 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, 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.
[Sidenote: 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, 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.
[Sidenote: 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 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 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.
[Sidenote: 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 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_.
[Sidenote: 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_, or the said _Isle of Man_, any law, custom, or usage, to the
contrary notwithstanding.
[Sidenote: 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 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.
[Sidenote: 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 other pretence
whatsoever, relative to the said fishery, any law, custom, or usage, to
the contrary notwithstanding.
[Sidenote: 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.
[Sidenote: 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 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.
[Sidenote: 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 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.
[Sidenote: 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 herein
contained to the contrary notwithstanding.
[Sidenote: No shipmaster to carry any fishermen, _&c._ as passengers to
any part of the continent of _America_ without permission, under the
penalty of 200_l._]
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.
[Sidenote: Regulations for persons employing seamen or fishermen at
_Newfoundland_.]
13. And whereas in several acts, passed in the eleventh and twelfth
years of _William_ 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, 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.
[Sidenote: 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 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.
[Sidenote: 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.
[Sidenote: 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 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.
[Sidenote: 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 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.
[Sidenote: 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_.
[Sidenote: 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, 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.
[Sidenote: Rum, _&c._ imported into _Newfoundland_ from _America_, to
pay a duty of 1_s._ _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 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.
[Sidenote: 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
_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 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 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.
[Sidenote: 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 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.
[Sidenote: 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 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, 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.
[Sidenote: 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, 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.
[Sidenote: 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 from any of the duties and revenues
under their management respectively.
[Sidenote: 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.
[Sidenote: 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 to the admeasurement of such
ship or ships respectively.
[Sidenote: 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.
[Sidenote: 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 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.
[Sidenote: 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.
[Sidenote: Persons giving false certificates, _etc._ to forfeit 500_l._]
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 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.
[Sidenote: 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.
[Sidenote: 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 _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.
[Sidenote: 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 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.
[Sidenote: 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.
[Sidenote: 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 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.
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._
[Sidenote: 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, 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_, _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 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 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 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.
[Sidenote: 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 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.
[Sidenote: 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_ 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.
[Sidenote: 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.
[Sidenote: 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 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.
[Sidenote: 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 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.
[Sidenote: 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 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.
[Sidenote: 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.
[Sidenote: 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 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.
[Sidenote: 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 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.
[Sidenote: 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 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.
[Sidenote: 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 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
_European_ dominions for the purpose of carrying on the fisheries
aforesaid.
[Sidenote: 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 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.
[Sidenote: 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, 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.
[Sidenote: 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_, 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.
[Sidenote: 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_, 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 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.
[Sidenote: 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.
[Sidenote: No more than 40_s._ 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 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.
[Sidenote: 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 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.
[Sidenote: 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_, 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 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 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.
[Sidenote: 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; 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_.
[Sidenote: 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 damages, nor to
any costs of suit, nor shall the defendant in such prosecution be fined
above one shilling.
[Sidenote: 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_, 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.
[Sidenote: 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.
[Sidenote: 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 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.
[Sidenote: 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.
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~._
[Sidenote: 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; 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, 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 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, 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 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.
[Sidenote: Persons refusing to conform to the directions of the governor,
to forfeit 200_l._ 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 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.
29 GEO. III. Cap. 53.
_An act for further encouraging and regulating the
~Newfoundland~, ~Greenland~, and southern whale fisheries._
[Sidenote: 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 _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_.
[Sidenote: 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 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.
[Sidenote: 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.
[Sidenote: 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 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.
[Sidenote: 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 50_l._; 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 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 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, 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.
[Sidenote: 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.
[Sidenote: 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.
31 GEO. III. Cap. 29.
_An act for establishing a court of civil jurisdiction in the
island of ~Newfoundland~, for a limited time._
[Sidenote: 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 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 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 act contained to the contrary notwithstanding.
[Sidenote: 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.
[Sidenote: An appeal to his Majesty in council may be made, where
judgement is given for more than 100_l._]
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.
[Sidenote: 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.
[Sidenote: 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.
32 GEO. III. Cap. 46.
_An act for establishing courts of judicature in the island of
~Newfoundland~, and the islands adjacent._
[Sidenote: 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 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.
[Sidenote: 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 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.
[Sidenote: 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 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.
[Sidenote: In actions exceeding 10_l._ 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 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.
[Sidenote: Appeals may be made from judgements for sums exceeding 40_l._
in the surrogate court, and exceeding 100_l._ 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 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.
[Sidenote: 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 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.
[Sidenote: 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, 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.
[Sidenote: 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.
[Sidenote: 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.
[Sidenote: 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 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.
[Sidenote: 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 and forfeitures thereby incurred shall and
may be recovered in the court of sessions, or before any two justices of
the peace.
[Sidenote: Suits for debts not exceeding 40_s._ 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.
[Sidenote: 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 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.
[Sidenote: 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,
penalties, and forfeitures shall be applied and appropriated towards
defraying the expence of carrying this act into execution.
[Sidenote: 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.
[Sidenote: 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.
[Sidenote: 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._
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