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.
A commission of oyer and terminer proposed.
Nothing material appears respecting the civil government of Newfoundland, till the year 1737, when the board of trade listened to the representation that had frequently been made by the governor, of the inconvenience of sending over to England for trial, persons who had committed capital felonies. In such cases the witnesses were glad to keep out of the way; the felon was sent to England, without any person to prove his guilt; a great expence was incurred, justice was disappointed; or if the fact were proved, the poor witnesses was left to get back as they could, with the expence of their voyage and residence, and the certain loss of one season’s fishing.
It had been provided by stat. 10 and 11 Will. 3. that such capital felonies might be tried in any county in England; and in the commission of the peace lately given, this policy was so closely adhered to, that the justices were therein restrained from proceeding in cases of doubt and difficulty, such as robberies, murders, and felonies, and all other capital offences. It appeared to the board of trade that this scruple might now be got over; and they proposed inserting in the commission that was to be given to Captain Vanbrugh, a clause, authorising him to appoint commissioners of Oyer and Terminer; but the board wishing to be assured that the king’s prerogative was not restrained in this particular, by the above provision in stat. 10 and 11 Will. 3. they consulted the attorney and solicitor general, who thought the king’s power was not abridged by that act. The board, in their representation to his majesty, state the example of a commission being granted to the commodores with other persons, for trials of piracy, as a precedent for trusting them with this authority to issue commissions for trying felons; and that it was no more than was given to other governors of plantations. But they inform his majesty, that as this power might be too much to be entrusted in the hands of judges and juries very little skilled in such proceedings, they had added an article, which restrained the governor from allowing more than one court of Oyer and Terminer in a year, and that only when he was resident; and he was further instructed, not to suffer any sentence to be executed, till report thereof be made to his majesty[59]. But when the commission went before the privy council for approbation, all that part which gave this authority was directed to be left out; so fearful were they of trusting such authority to those in whom they had lodged the civil government of the island[60].
Such Commission issued.
So this point rested till the year 1750; when Captain Rodney, who was then governor, pressed the secretary of state for such a power to be granted. It was referred to the board of trade, where they recurred to what was projected in the year 1738 for Captain Vanbrugh’s commission. A doubt arose with the board, whether this power might be given by instruction, or whether it must be inserted in the commission; and Sir D. Ryder, then attorney-general, being consulted, he was of opinion, that such power could not be granted by instruction, nor any otherwise than under the great seal; but that the manner of exercising such power might be prescribed by instruction; he thought the clause drawn for the commission of 1738 was sufficient, only that neither the power of trying, nor that of pardoning treason, should be entrusted with the governor, or any court erected by him. The commission issued accordingly, with this new power, to Captain Francis William Drake[61].
It may be remarked of this commission of Oyer and Terminer, issued under the new power given to the governor, that it has not been executed without some question being raised as to its legality. Persons, who were obstinately bent to believe there was no law in Newfoundland but stat. 10 and 11 Will. 3. were disposed to doubt the power of the crown to give authority for issuing this, as well as the commission of the peace. It has been the interest and inclination of many at Newfoundland to contest every thing that was not founded upon the same parliamentary authority as stat. 10 and 11 Will. 3. But this spirit, whether of ignorance or wilfulness, has worn off, in a great measure, of late years, though it is occasionally at work even now. And it is to be lamented at this moment, that the advice given by the board of trade in the year 1718, and afterwards on the occasion of establishing the civil government in 1728, was not followed; and an act of parliament passed for remedying all the abuses and irregularities at once, instead of resorting to the half measure that was then adopted, and which had all the difficulty we have seen to support itself.
If we are to judge from the dearth of matter in the books of the board of trade, things went on very quietly at Newfoundland for several years. We only find some scattered facts of no great importance.
Lord Baltimore revives his Claim.