CHAPTER VI

THE ENGLISH COLONIAL SYSTEM AND ITS RESULTS

The War of American Independence forms a convenient point at which to examine for a moment in pa.s.sing the English colonial system, of which Newfoundland was in some sense a victim. It may then at once be stated that in the English view, as in the Spanish view, a "plantation" was expected, directly or indirectly, to contribute to the wealth of the Mother Country. If it contributed much, it was a good colony; if little, its consequence was less. Hence the English legislation throttling colonial manufacturers in the supposed interests of English merchants, and confining colonial trade to English channels. Hence the disregard, persistent and unashamed, of Adam Smith's immortal saying: "To prohibit a great people from making all that they can of every part of their own produce, or from employing their stock and industry in the way that they judge most advantageous to themselves, is a manifest violation of the most sacred rights of mankind." Long before Smith, the wisest of Englishmen had sounded a clear note of warning far in advance of his age. Bacon wrote in his essay on plantations: "Let there be freedom from custom, till the plantation be of strength: and not only freedom from custom, but freedom to carry their commodities where they make their best of them, except there be some special cause of caution."

Any stick has been thought good enough to beat those who lost America, but we must not suppress the little that may be urged on their behalf.

Here again may be cited the dispa.s.sionate opinion of Adam Smith: "Though the policy of Great Britain with regard to the trade of her colonies has been dictated by the same mercantile spirit as that of other nations, it has, upon the whole, been less illiberal and oppressive than that of any of them." To the same effect Mr Lecky: "It is a gross ... misrepresentation to describe the commercial policy of England as exceptionally tyrannical." In fact, the expense of protecting Newfoundland and America against French attacks was serious and constant. That the colonies owed contribution to that defence is clear, for it would be involved in any other view that an American enjoyed a natural right to be protected against France at the charges of a Londoner. In the face of all this the colonies were conspicuously and notoriously unable to agree upon any principle of allocating grants. In this respect Newfoundland was no better than the American colonies. "We should be extremely concerned," wrote a merchant officially consulted on the point, "to see any species of taxes introduced into this island which would inevitably be burdensome and inconvenient to the trade and fishing in general, and we trust that in the wisdom of His Majesty's Ministers no such innovation will take place."

The attempt, then, to tax from home was defensible, and Chatham was clearly wrong in denying its legality. On the other hand, to persevere in the attempt was the folly of weakness, mistaking obstinacy for strength.

It must be remembered, as a partial extenuation of English selfishness in Newfoundland, that the long arm of England was ever extended for the colony's protection, and that the charges therefor were defrayed by the English taxpayer. Hence the view followed, naturally but unfortunately, that the island was an a.s.set to be exploited commercially in the interests of the home country.

In 1783 the Treaty of Versailles revised the French rights conferred by the Treaty of Utrecht. The French boundary was contracted from Cape Bonavista to Cape St. John on the east coast, and was extended from Point Riche to Cape Ray on the west. The whole subject of the French claims will be examined in a separate chapter,[34] but a very important undertaking set forth in the Treaty of Versailles must not be omitted:

"His Britannic Majesty ... that the fishermen of the two nations may not give cause for daily quarrels, was pleased to engage that he would take the most positive measures for preventing his subjects from interrupting in any measure by their compet.i.tion, the fishing of the French during the temporary exercise thereof which is granted to them upon the coasts of the island of Newfoundland, and that he would for that purpose cause the permanent settlements which should be formed there to be removed, and that he would give orders that the French fishermen should not be incommoded in the cutting of wood, necessary for the repair of their scaffolds, huts, and fishing boats."

In the time of Governor Milbanke, in 1791, an Act of Parliament tardily created "the Court of Civil Jurisdiction of our Lord the King at St. John's in the island of Newfoundland," which Court was empowered to try all civil cases except those relating to land, and which usually began actions by the peremptory procedure of arresting the defendant and attaching his goods. The following year a supreme Court of Civil and Criminal Judicature was inst.i.tuted which superseded the Court erected the previous year, put an end to the authority of the "fishing-admirals," of the Courts held in summer by surrogates (naval commanders visiting the island) and of the Courts of Session held in winter by local justices of the peace, and was empowered to try all persons charged with criminal offences and determine civil suits, including those relating to land, and to make arrest and attachment in civil suits discretionary and alternative. The jurisdiction of the Court was renewed annually, then triennially; and John Reeves, to whose history all writers on Newfoundland owe so much, was appointed the first Chief Justice; but he remained in the island only till 1792, when he was succeeded by ex-surgeons, collectors of customs, and merchants. In 1809 a perpetual Act was pa.s.sed, which purported to abolish definitely the diverse and sporadic jurisdictions; but such is the force of old customs and practices that it was not till 1824 that the old Session Courts, Courts of Surrogates and of fishing-admirals were finally extinguished, and at the same time two a.s.sistant judges were appointed to aid the Chief Justice, and all three judges were to be English or Irish barristers. A Court of Civil Jurisdiction was also created for Labrador. We may recall here the observations of Chief Justice Reeves on the fishing-admirals: "They are ever the servants of the merchants. Justice was not to be expected from them; and a poor planter or inhabitant, who was considered little better than a law-breaker in being such, had but a small chance of justice in opposition to any great west-country merchant. They considered that Newfoundland was theirs, and that all the planters were to be spoiled and devoured at their pleasure." It must be recorded that this most just and necessary reform in judicial administration was vainly but bitterly opposed by the merchants at home.

In 1793 came the war with revolutionary France, and Newfoundland was once again in a bustle of defensive preparation. The Governor, Vice-Admiral King, took possession of St. Pierre. The French, under Admiral Richery, threatened St. John's, but desisted in face of the vigour of the new Governor, Admiral Sir Richard Wallace (1796), who raised volunteers, strengthened the forts, and prepared new batteries.

In 1797 the mutiny at the Nore broke out, provoked by real grievances.

As far off as Newfoundland the spirit of disaffection spread, and an outbreak occurred on H.M.S. _Latona_, then lying in the harbour of St.

John's. It was quelled by the resolution of Captain Sothern; and Governor Waldegrave (1797-1800), afterwards Lord Radstock, summoned the mutineers before him and addressed them in the presence of the Royal Newfoundland Regiment, whom they had tried to affect with sedition. "I may venture to say," the Governor writes home, "my speech was of much service." It was certainly of much vigour. "If I am to judge from your conduct," he said, "I must think that the majority of you are either villains or cowards. If the greater number of you are against your officers, ... I have a right to say that you are traitors.... If there are only a few bad men among you, which you pretend to be the case, I maintain that you are a set of dastardly cowards, for suffering yourselves to be bullied by a few villains, who wish for nothing better than to see us become the slaves of France....

You were all eager for news and newspapers to see how your great delegate, Parker"--the ringleader at the Nore--"was going on. I thank G.o.d I have the satisfaction to inform you that he is hanged.... You looked up to him as an example whilst he was in his glory. I recommend you to look to his end as an example also.... I have now to tell you that I have given orders to all your officers, that in case any further signs of mutiny should appear among you, they are not to think of confining the ringleaders, but to put them to death instantly; and, what is still more, I have given orders to the officers commanding the batteries, to burn the _Latona_ with red-hot shot, in case you drive me ... to that extremity. I know in this case the officers must perish with you; but there is not one of them but is ready to sacrifice himself for the good of his country.... And now go to church, and pray G.o.d to inspire you with such sentiments as may acquire you the respect and love of your countrymen in this world and eternal happiness in the next."

This speech, which was rescued from oblivion by the industry of Mr Pedley, came clearly from a man of energy and resolution. In fact, Governor Waldegrave proved himself to possess unusual resource and vigour. He was the creator of the Newfoundland system of poor relief, and he busied himself actively in the interests of religion. On the latter subject it is pleasant to note a spirit of growing breadth in the island. In particular, the loyal labours of the Roman Catholic Bishop O'Donnell opened up a new era of tolerance for his followers.

To this Bishop was due the discovery, in 1802, of a plot among the locally enlisted Royal Newfoundland Regiment, to loot St. John's and then fly to the United States. The ringleaders were executed, and the mutinous regiment was replaced by one from Halifax.

The war with France was for the time being terminated by the Peace of Amiens (1802), whereby the conquered territory was to be restored--so that St. Pierre and Miguelon were returned to France; and her fishing rights were renewed on the same basis as was laid down in the Treaty of Utrecht.

In 1802, by which time the population of the island amounted to about twenty thousand persons, Governor Gambier (1802-1803), who was in advance of his age in his views on government, as well as on the education of the settlers, and the civilization of the Beothics, proposed to Lord Hobart the establishment of a legislative power in Newfoundland, similar to that which has been found necessary to the prosperity and good government of other parts of the British dominions. The suggestion was treated as premature, and probably was so in fact. That it should have been made at all shows how far we have travelled from the swaddling clothes of monopoly. However this may be, two important civilizing agencies were introduced in 1805 and 1806--a regular post office, and a newspaper (the _Royal Gazette_).

In 1810 began Vice-Admiral Sir Thomas Duckworth's period of office, which soon revealed a Governor of energy and intelligence. He journeyed to the northern settlements and Labrador to learn the condition and needs of the population; he tried to secure friendly relations with the Red Indians of the country, and set up a hospital in St. John's. Amongst other reforms he procured the pa.s.sing of a statute in 1811 (51 George III.) authorizing him to grant leases of certain ships' rooms at St. John's then in public occupation.

Following up in this way the useful work of Governor Gower (1804-1807), he used his leasing power to promote the building of warehouses and wharves. The idea that the inhabitants of St. John's had a right to make it habitable was slowly gaining ground. Duckworth was an able and far-seeing man, and his report on the condition of the island, furnished to the home authorities at the end of his governorship, was a lucid and memorable doc.u.ment. His condemnation of the building restrictions paved the way for the fearless agitation of Dr. William Carson. A distinguished medical graduate of Edinburgh, Carson incurred the dislike of Governor Duckworth, and his successor, Governor Keats, by his outspoken pamphlets. Indeed, there was nothing equivocal in Carson's views:

"The only remedy against the evils flowing from the present system will be found in giving to the people, what they most ardently wish, a civil Government, consisting of a resident Governor, a Senate House, and House of a.s.sembly."

Hitherto the population had possessed no voice in the administration of their own affairs. The Governors exercised an absolute power, which to progressive minds appeared to be an indifferent and unnecessary despotism. So far as Newfoundland affairs were concerned they almost invariably adopted an ultra-conservative att.i.tude, and were hostile to proposals for amelioration called for in the changing circ.u.mstances of the colony. Thus the demand for self-government became more and more general.

The Anglo-American War which began in 1812 ushered in a period of great prosperity to Newfoundland. Fish were plentiful, prices good beyond precedent, and wages high in proportion.

The Great European War was terminated by the Battle of Waterloo on 1815, and peace was restored by the Treaty of Paris. Under the latter the French regained the right of fishing on the banks and sh.o.r.es of Newfoundland. The privileges of Americans to fish in British waters were also enlarged. In favour of their own fishermen, both the French and American governments then established a system of bounties, and by imposing high duties prevented the importation of Newfoundland fish into their own markets. Thus the Newfoundland fishermen were obliged to compete with their rivals on very unequal terms.

Governor Pickmore, who succeeded Governor Keats in 1816, was confronted with a very difficult state of things. The high prices which had ruled from 1812 to 1815 had attracted emigrants in large and undesirable numbers. The commercial reaction and foreign compet.i.tion, aided by the bounties, hit the merchants hard, and in 1815 bankruptcy trod fast on the heels of bankruptcy. In the following winter actual starvation menaced the residents, and many owed their lives to the generosity and energy of Captain David Buchan, commander of H.M.S.

_Pike_, who put his men on short rations for the relief of the inhabitants. In an address of thanks, which was presented to him when the crisis was past, his services were gratefully recorded:

"At this distressing crisis you afforded us from His Majesty's store a supply in aid of our then alarming and terrible wants. You then, with patriotic feeling, placed the company of the ship which you command on reduced allowance, and yielded to the public distress every alleviation which such means afforded."

The lean years were still further saddened by the terrible fire of 1817, which left more than a thousand persons houseless, in the full severity of winter. The wooden houses and narrow streets of St. John's made resistance hopeless, when the flames had once gained a hold. It was estimated that the fire caused a loss of 125,000. The wealthier inhabitants and the home Government gave what relief was possible, and in 1818 the crisis yielded before brighter prospects.

Pickmore was the first Governor to reside continuously in the island (where he also died), for his predecessors had sailed away with the fishermen in October to reappear with the beginning of summer. In 1817 a Select Committee of the House of Commons was specially appointed to consider the situation of Newfoundland. The merchants, full as ever of vicious political economy, had two remedies to propose for the admitted distresses. One was the concession of bounties to place them on a level with French and American compet.i.tion; the other was the removal of the population (then numbering 17,000) to Nova Scotia or Canada. Determined to omit nothing which might make them the derision of history, they added an emphatic opinion that agriculture could never thrive on the island.

On the appointment of Governor Pickmore, Lord Bathurst had given him the following instructions:

"As the colony has of late years, from the rapid increase of the population, a.s.sumed a character totally different from that under which it had been usual previously to consider it, I am most desirious of receiving from you your opinion as to the propriety of introducing any and what change into the system of government which has heretofore prevailed."

The seeds sown by Carson were beginning to bear fruit, and from 1821 onwards the desire for local government in the island grew continuously stronger. As against the arguments of the opposition, it was urged that all the British colonies, even the small Bermuda, had a local government; that Nova Scotia was granted it as far back as the middle of the eighteenth century; that the older American colonies had always enjoyed self-government; and that the time had now come for the extension of the same privilege to Newfoundland. The authority of Governor Cochrane, who was appointed in 1825, and whose term of office lasted till 1834, was limited by the appointment of a Council, consisting of the Chief Justice, the two a.s.sistant Judges, and the Military Commander at St. John's. Under this Governor roads were for the first time laid out in the island. The irritation of the merchants at home was intense, and the name of Peter Ougier, a west country merchant, ought to go down to posterity. In his evidence before the committee, he protested with real emotion: "They are making roads in Newfoundland: next thing they will be having carriages and driving about." Sir Thomas Cochrane was regarded as the best Governor ever sent to Newfoundland. He was "the first real administrator and ruler of the colony. An eminently practical man, he not only organized improvements, he personally superintended their execution. His activity was unbounded; in the early mornings he was out on horseback inspecting the roads, directing his workmen, laying out the grounds at Virginia, having interviews with the farmers, giving them practical hints about agriculture; everywhere he impressed his strong personality on colonial affairs. He was very sociable, and his hospitality was unstinted." Indeed, the historian of the island can point to only one mistake committed by the Governor, the bad taste shown in the erection of Government House, which "looks more like a prison than the Vice-regal residence ... it is a huge pile of unredeemed ugliness."[35]

In England, in the early thirties, reform was in the air. The blow was struck at the right time, and in 1832--the year of the great Reform Bill--Parliament pa.s.sed a measure creating in Newfoundland a representative a.s.sembly. The island was divided into nine electoral divisions, each of which was to have one or more representatives, according to population. There were, in fact, fifteen members. The first election pa.s.sed off quietly in the autumn of the same year. Dr.

Carson, the father of Home Rule, stood for St. John's, and Mr Justice Prowse has usefully noted that he was defeated. The fickleness and ingrat.i.tude of the people were never more dramatically ill.u.s.trated.

"He had been the pioneer of the new movement, had suffered in the people's cause, and yet the public, 'that many-headed monster thing--the mob,' were the first to cast aside their leader in the fight for Home Rule, and to give their votes and support to a new and untried man." It was said, however, that the defeat was due to an electioneering trick, whereby a false report was spread as to the att.i.tude of the veteran in the liberal cause.[36] "The House of a.s.sembly of 1833 was the youngest const.i.tuent body in America, but it was not one whit behind any of them in stately parliamentary pageant and grandiloquent language. H.B. (Doyle) in London caricatured it as the 'Bow-wow Parliament' with a big Newfoundland dog in wig and bands as Speaker putting the motion: 'As many as are of that opinion say--bow; of the contrary--wow; the bows have it.'"[37]

A nominated Legislative Council had been provided by the Const.i.tution of the Colony. The relations of the Chambers have always been delicate in the British colonies, and in Newfoundland friction soon arose. The Legislative Council, under Chief Justice Boulton--who improperly called himself the Speaker instead of the President--set itself to thwart and discredit the popular Chamber. On both sides the controversies were petty, and were conducted in a petty spirit. The popular a.s.sembly described itself as "the Commons House of a.s.sembly in Parliament a.s.sembled"; whereupon it was ordered forthwith to strike out the word "Parliament." The Legislative Council appears to have been the more cantankerous, and the less p.r.o.ne to compromise. At last matters reached an _impa.s.se_, for the Council began to throw out Supply and Revenue Bills. In the first year of the Queen's reign, when Canada was already full of trouble, delegates from the Newfoundland House of a.s.sembly arrived in London. Their mission was in the main successful. The Council was recommended to adopt the Appropriation Bill, and Chief Justice Boulton was summarily dismissed. "Boulton,"

says Mr Justice Prowse, "had undoubted ability, but he was the worst possible selection for both the Council and the Bench. His views, both of law and legislation, were most illiberal; as a technical lawyer he was mostly right and sublimely independent, but his harsh sentences, his indecent party spirit, and his personal manners caused him to be hated as no one else was ever hated in this colony."[38]

In 1838 occurred the Kielly affair, which has added a leading case to English const.i.tutional law. Dr. Kielly a.s.saulted, or was said to have a.s.saulted, Mr John Kent, who was a member of the a.s.sembly. Mr Kent brought the matter before the a.s.sembly as a breach of privilege. The House refused to hear witnesses on Kielly's behalf, treated the charge as proved, and demanded that he should apologize at the bar of the House. Kielly refused, adding that Kent was a liar and a coward. Then followed an interlude of comic opera. Kielly was committed, whereupon Mr Justice Lilly granted a writ of _habeas corpus_. This was not to be borne by the imperious a.s.sembly, and the Speaker promptly issued his warrant for the re-arrest of Kielly, the arrest of the High Sheriff, and of Judge Lilly. Nothing like it had been seen since the heyday of the Wilkes litigation in England, when the House of Commons committed the Sheriff of Middles.e.x to prison for carrying out the orders of the Court of King's Bench.

In the unruffled atmosphere of the Privy Council the legal question found its decision.[39] It was laid down that the Crown, by its prerogative, can create a Legislative a.s.sembly in a settled colony, with the government of its inhabitants: but that it is highly doubtful whether the Crown could, if it wished, bestow upon such an a.s.sembly an authority, such as that of committing for contempt, not incidental to it by law. "The House of a.s.sembly of Newfoundland," said Chief Baron Parke, "have not, what they erroneously supposed themselves to possess, the same exclusive privileges which the ancient law of England has annexed to the Houses of Parliament."

In 1838 the members of the a.s.sembly were elected for four years, and this term has continued ever since.

The colony was destined to pa.s.s now through bitter trials. Having secured freedom, after much suffering and oppression, it soon learnt that freedom without common sense and moderation degenerates into licence, and becomes a menace and a terror. The election of representatives was accompanied by scenes of turbulence and disorder: the sense of toleration and compromise was absent. Half of the population were Roman Catholics of Irish descent, in whom rankled memories of ancient wrongs; the other half were Protestants of English descent, long used to ascendency, who were headed by a wealthy commercial cla.s.s. With the introduction of the new regime old distrusts and hostilities were rekindled, and an unscrupulous press fanned the flames. Religion became mixed up with the political contention; and the evil pa.s.sions that were aroused, and the outrages that were committed held back for some time the progress of the community and the political development of the colony.

FOOTNOTES:

[34] See _infra_, chap. x.

[35] D.W. Prowse, "History of Newfoundland," second edition (London, 1896), pp. 424, 425, 426.

[36] Prowse, _op. cit._, pp. 429, 430.

[37] _Ibid._, p. 431.

[38] Prowse, _op. cit._, p. 434.

[39] Kielly _v._ Carson (1842), Moore's Privy Council Cases, vol. iv., pp. 63, 88.

CHAPTER VII

SELF-GOVERNMENT

The political faculty in Newfoundland was so rudimentary at this period that from 1841 to 1843 it became necessary to suspend the Const.i.tution. In the autumn of 1840 an election riot at Carbonear occurred, which was of such a serious character that the sympathies of the British ministry with Newfoundland affairs were alienated, and the Governor was ordered to dissolve the Legislature. He did this on April 26th, 1841, and in his speech pointed out the reason for such drastic action: "As a Committee of the House of Commons has been appointed to enquire into the state of Newfoundland, before which Committee I shall have to appear, I will on the present occasion confine myself to the expression of my regret that such a proceeding should have become indispensably necessary to the tranquillity and welfare of the colony." Until 1849 the government was carried on by a General a.s.sembly--a makeshift a.s.sembly--in which members of the House of a.s.sembly sat side by side with members of the Council, the latter losing their distinctive functions.