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.

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].

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].

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].”

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.

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].

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.

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].

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.

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].

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.

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].

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.

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].

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].

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.