This call for a due execution of the laws relating to the fishery, again drew the attention of the board of trade to the Stat. 10 & 11 Will. 3, c. 25. and the defect, so often complained of in that act, “not having any penalties specially annexed to the breach of it.” And on a question proposed by the board to Mr. Montagu, then solicitor general, he declared it to be clear, that although no particular penalty was mentioned in an act of parliament, requiring or prohibiting any thing, yet any offender against such act may be fined at the discretion of the court, when found guilty on an indictment or information[10].
Representation 1708. For the sea commanders to command at land.
The board then proceeded to make a 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].
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].
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.