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].
The Peace 1763.
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.
Remarks of the Board on Stat. 10 and 11 W. 3.
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.