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.
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—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.
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].
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.