MILBANKE, MARK, naval officer and governor of Newfoundland; baptized 12 April 1724, third of six sons of Sir Ralph Milbanke of Halnaby Hall, England, and his second wife, Ann Delavall, daughter of Edward Delavall of Dissington Hall, South Dissington, England; m. Mary Webber, and they had one son and two daughters; d. 9 June 1805 in London, England.
Mark Milbanke entered the Portsmouth Naval Academy as a scholar in February 1736/37, and he spent his midshipman years on the Tilbury, Romney, and Princess Mary, the last commanded by Captain Thomas Smith, who was governor of Newfoundland in 1741 and 1743. Milbanke became a lieutenant on 20 April 1744 and assumed command of his first ship, the Serpent, on 13 Sept. 1746. He was placed on half pay at the end of the War of the Austrian Succession in 1748, and again following his service in the Mediterranean throughout the Seven Years’ War.
During the American revolution Milbanke commanded several vessels and on occasion substituted for Lord Shuldham* as commander-in-chief at Plymouth. Although by September 1780 he had risen to vice-admiral of the blue, he held no command as a flag officer until the spring of 1782. At that time he was appointed to the fleet under Lord Howe, and he participated in several actions during the closing stages of the war. He was port admiral at Portsmouth from 1783 to 1786, but seems to have had no other important posts until 1789, when as a vice-admiral of the white he became governor of Newfoundland.
Immediately upon his arrival in the middle of July, Milbanke was given serious concern by the old problem of the dumping of unwanted human cargo in Newfoundland. In this instance the problem related to the fate of convicts. It was then the pernicious custom to ship them to the mainland colonies in America, but a ship which had left Ireland in June with 114 convicts put them ashore at outports south of St John’s, where they created much uneasiness among the inhabitants. As the convicts – many of them in poor health – wandered to the capital, Milbanke had them rounded up and sent to England. These unfortunate people were unwelcome on an island where, after the fishing season, the resident community had a great enough problem ensuring their own survival.
Though by the time of Milbanke’s governorship it was too late to forbid settlement in Newfoundland, it was still possible to hinder it. In accordance with his instructions, Milbanke forced the demolition of buildings beyond those needed for a temporary or seasonal fishery. Forest clearing was also discouraged if done for purposes of establishing permanent housing or for any other purpose likely to encourage settlement. Nevertheless, increasing numbers of poor Catholic Irish attempted to winter in Newfoundland after the fishing season, and the hasty dispatch of the Irish convicts was not unrelated to the danger of unrest. Milbanke believed, moreover, that if the comforts of religion were readily available the Irish would remain. He thus viewed the Catholic chapel built at St John’s in 1786 as an encouragement to settlement, but also, what was worse in his eyes, to Catholicism. Although freedom of worship had been proclaimed by Governor John Campbell in 1784, he refused permission to James Louis O’Donel, prefect apostolic in Newfoundland, to build another chapel at Ferryland.
Milbanke is best remembered for his part in ending the difficulties Newfoundland experienced during the late 1780s in the administration of justice. At the beginning of the century the only judicial authorities on the island had been the fishing admirals, who were responsible for settling disputes in the fishery. It soon became obvious, however, that the growth of the resident population made some form of rudimentary judicial organization necessary, and under governors Henry Osborn* in 1729 and Francis William Drake* in 1750 measures were taken to appoint justices of the peace and commissioners of oyer and terminer to deal with most criminal cases. The majority of disputes requiring decisions, however, were those concerning debt, payment of wages, and property disputes, and the judicial authorities had not been given power to deal with these matters. Nevertheless, the need was such that civil cases had been heard. In addition, the governor and his surrogates, naval officers empowered by him to supervise the fishery, had taken it upon themselves to adjudicate in civil cases. Despite the illegality of the system, it functioned well enough as long as all concerned agreed to abide by the decisions. The inevitable happened in 1787 when Richard Hutchings, a West Country merchant, refused to accept the decision of a surrogate and appealed it to a court in Devon. The court, not surprisingly, found that the surrogate had no legal authority to hear civil cases. News of this judgement created consternation in Newfoundland and effectively stopped the administering of civil justice during the 1788 fishing season: none of the persons who had previously ruled on civil matters wanted to take the risk of being sued, in England, for a decision made in Newfoundland. To compound the problem, a slump in the fishery that year resulted in many cases of debt requiring immediate attention.
Before he began his governorship Milbanke had consulted with his secretary, Aaron Graham, who had served the previous three governors, about some way of solving the judicial impasse. On Graham’s prompting he stretched the terms of his commission to permit the establishment of a court of common pleas which would hear civil cases. The new court came into being during the fishing season of 1789. It was readily accepted by the settled population, but not by the transient fishermen and merchants with their powerful West Country backing in parliament. The law officers in London denounced the court as illegal, but recognized that a similar institution was necessary. They recommended to the government that legislation be enacted to allow the establishment of a civil court, and appalled Milbanke by further suggesting that professional personnel be appointed to operate it. Legal wrangling and West Country parliamentary opposition delayed implementation of the legislation, however, and in 1790 Milbanke, now vice-admiral of the red, returned to Newfoundland to continue his illegal court.
The following year, by the act 31 Geo.III, c.29, a “court of civil jurisdiction” was created for one year, and John Reeves*, a trained jurist and a man of great integrity, was appointed its “chief judge.” In 1792 a new act established a supreme court with full power to hear all civil and criminal cases; as a corollary, surrogate courts able to adjudicate on civil matters were to be established in the outports. The system of supreme and surrogate courts was continued on an annual basis until 1809, when it was made permanent.
Following the end of his governorship in 1792, Milbanke returned to naval service and rose steadily in rank, becoming admiral of the white on 1 June 1795. His active career was concluded as commander-in-chief at Portsmouth from September 1799 to March 1803. Two years later, at the age of 81 or 82, he suffered a fatal accident by falling over the banisters of the staircase at his London home.
North Yorkshire Record Office (Northallerton, Eng.), Reg. of baptisms for the parish of Croft, 12 April 1724. PRO, CO 194/21. Gentleman’s Magazine, 1805: 589. The Noels and the Milbankes: their letters for twenty-five years, 1767–1792, ed. Malcolm Elwin (London, 1967). John Reeves, History of the government of the island of Newfoundland . . . (London, 1793; repr. New York and East Ardsley, Eng., 1967). John Charnock, Biographia navalis; or, impartial memoirs of the lives and characters of officers of the navy of Great Britain, from the year 1660 to the present time . . . (6v., London, 1794–98), 6: 81–83. DNB. R. H. Bonnycastle, Newfoundland in 1842; a sequel to “The Canadas in 1841” (2v., London, 1842), 1: 135–36. McLintock, Establishment of constitutional government in Nfld., 62–77. Paul O’Neill, The story of St. John’s, Newfoundland (2v., Erin, Ont., 1975–76), 2: 725–28. Prowse, Hist. of Nfld. (1895), 357–60. F. F. Thompson “Transportation of convicts to Newfoundland, 1789–1793,” Newfoundland Quarterly (St John’s), 69 (1960), no.1: 30–31.
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