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.
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].
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].