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EXTRACTS FROM EVIDENCE OF CHIEF JUSTICE REEVES
GIVEN BEFORE COMMITTEE APPOINTED TO INQUIRE INTO THE STATE OF TRADE TO NEWFOUNDLAND, 1793.
THIRD REPORT FROM THE COMMITTEE APPOINTED TO ENQUIRE INTO THE STATE OF THE TRADE TO NEWFOUNDLAND. [ORDERED TO BE PRINTED 17 JUNE 1793.] Pages 107-176.
JOHN REEVES, Esquire, Chief Justice of the Island of Newfoundland, being called in, was asked, If he had any Information to give to the Committee respecting the Government, and the Administration of Justice, of the Island of Newfoundland ? He desired to be permitted to deliver in the following Paper of Remarks, viz.
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With respect to other Courts, I entirely differ from Mr. Newman and Mr. Ougier, who wish that the Justices of the Peace should have no Authority in Civil Matters ; and that when the Governor, Chief Justice, and the Surrogates are gone, there should be no Means whatsoever for recovering Debts. It is true, that the Consequence of the Two Judicature Acts of 1791 and 1792 has been, that no Causes whatsoever have been heard, when the Governor, Chief Justice, and Surrogates were gone ; but this has been found extremely inconvenient, and hurtful to many Persons, whatever Reasons those Gentlemen may have for wishing the Administration of Justice to be still suspended. The Merchants of Harbour Grace, when I was there, delivered me a Paper, in which they state how much they were aggrieved by their old Courts being suspended, and pray they may, as heretofore, have a permanent Court of Session. They add these Words, to which I beg the Committee to attend. “It falls particularly hard upon us, who have never made the least Complaint, or troubled Government in any shape whatever, that we should be deprived of that Court, which we were (but are more so by fatal Experience) convinced was a salutary one, and answered the desired Effect.” I now deliver in this Petition (which is hereunto annexed, vide Appendix No. 15), and I again caution the Committee how they suffer that, which comes only from these two Gentlemen, to be received as the Language of the whole Trade, and of the whole Island. These Gentlemen have indeed (as the Merchants of Harbour Grace truly say) complained and troubled Government, and have heretofore been too much listened to.
Conformably with the Requisition of the above Paper, and with the Wishes and the Necessities of the People resident at St. John's and Harbour Grace, I should recommend, that in the Absence of the Chief Justice and Surrogates, there should be some Court for the Recovery of Debts to any Amount, and for determining Causes of any Sort or Kind ; and that there should be an Appeal from such Court to the Supreme Court at St. John's. Some of the Persons to fit in those Courts can, from the Nature of Things, be no other than the very Persons who sat Things, in the Court of Common Pleas, and who have been so misrepresented. I know all the Clamours made against those Gentlemen to be ill-founded ; I know them to be the most fit to be put in the same Station they were then in ; and they ought to be placed there, not only for the Advancement of the public Service, but as a Testimony that their Conduct is approved, and that the Servants of Government will always be supported when they deserve it.
Such permanent Courts are necessary, because it is impossible, within the Compass of Time while the Governor, Chief Justice, and Surrogates are there, to hear all the Matters that it would be convenient to the Parties to bring to a Hearing in the Season. The Surrogates leave their Stations about the 20th or 21st of October ; the Governor and Chief Justice depart from St. John's by the last Day of October at farthest. The Merchants do not wind up their Accounts the middle till of December, and some of them not till the First Week in January ; though there may be a very good Reason why the King's Ships should not be hazarded on that Coast, at so late a Season, there seems to be no good Reason why, upon their Departure, the Business left undone should not be taken up by some Resident Court. It would also be extremely convenient to have some such Court to resort to, if necessary, during the Winter, and at the Opening of the Spring, before the Governor, Chief Justice, and Surrogates arrive : such Courts might prepare Matters, which they did not choose to determine, for the Determination of the Chief Justice and Surrogates, when they arrived ; in the mean Time the Country would have all the Benefit which is derived from Courts in other Causes, and some of it even in those. At any Rate, the Stay of the Chief Justice, more especially of the Surrogates, is too short for beginning and ending all the judicial Business of the Island : these may be made extremely useful, as a subsidiary Aid to such permanent Courts, but ought not to be relied upon, in my Opinion, as the only Tribunals for deciding Differences.
The Committee have already been detained too long with what I have said upon the Judicature. I shall endeavour to be very short in the few Observations I have to make on Two or Three Points that have been spoken to by some of the Gentlemen.
Something has been said on the Nature of Property in Newfoundland, and I will lay before the Committee my Opinion upon this Question.
The different Titles under which, it appears, Land may be holden, seems to be reducible to these : by Grant ; by Occupancy ; and by Act of Parliament. It is very rare that a Title can be traced up to an original Grant ; but where there are any such, it is a Grant either from a Governor or One of his
Surrogates. These were made sometimes generally ; sometimes to the Grantee for Life ; and sometimes to him and his Heirs ; they have of late Years been considered as nothing more than Grants during Pleasure, or at most, during the Time the Place granted was used for the Fishery ; and Grants of late have been commonly expressed to be during the King's Pleasure, and for the Use of the Fishery. Much, however, of the Ground so granted, is so situated as to be of no Use in the Fishery, and is actually used for growing Hay, and other farming or domestic Purposes. The Grants, whether ancient or modern, contain no Reservation of Rent, or any Acknowledgment or Consideration whatsoever ; nor is it believed that any was ever paid for such Grants. Some indeed are to be excepted ; namely, where a Piece of Land has been granted in Consideration of another that had been taken from the Grantee for building Forts, or some other public Service ; there are several such Grants, and they are considered as the best Titles in the Island, on Account of this consideration being expressed in them.
Titles by Occupancy I call such where there is no Grant, or any Thing to shew for the original Possession of the Ground as exclusive and private Property ; this makes Three Fourths of the Ground that is used and possessed in the Island, more especially in the Out Ports ; where being removed from the Eye of the Government, they make Inclosures, and carve for themselves almost as they please.
Besides these Modes of possessing Land, there is another which is authorized by the Acts of Parliament relating to Newfoundland ; and the before mentioned Tenures by Grant and by Occupancy may possibly be often sanctioned by the Fishery Acts, as far as such Tenures can be brought within the limited Sort of Property conferred by those Acts. The Titles that may stand upon the Authority of Parliament, are such as are within the 3d, 4th, 5th, 6th, 7th, and 8th Sections of Stat. 15th Geo. III. c. 31, compared together. On considering these Regulations, the Meaning of which is not very obvious or plain, it should seem that the Parliament meant to establish Two Sorts of Titles : First, they intended to ratify the Titles to all Land which the Inhabitants had converted into private Property before the Year 1685. Having made the Inhabitants easy in that Point, they required them to yield up all that had been appropriated between that Time and the Passing of Stat. 10th and 11th William III. and that none should be appropriated by them in future in Prejudice of Ships coming from Europe ; but that Ships coming from Europe, and equipped conformably with the Fishery Acts, should have a Place for curing their Fish for the Season ; but that at a subsequent Season the Spot so taken should be open for any other Ship to take, and might thus change its Master every Year. Hence arose what are called Ships Rooms, whether they are such as have long been so denominated, or whether they are any vacant or void Spaces, under Stat. 15th Geo. III. which may be taken by any such Ship, the same as reputed Ships Rooms.
These Two Parliamentary Titles, namely, that of Property before the Year 1685, and that of Ships Rooms, though they are in the Letter of them the
most defined and sure, yet they are in their Consequences of Less Value to Individuals than of the former.
In the First Place, I do not believe that any Owner of Land can shew a Possession and Property in any Person under whom he Claims subsisting prior to the Year 1685. And although there must be many such, yet not being able to shew their original Title, they can Claim by nothing better than the Occupancy of themselves and their Predecessors, and must be reckoned therefore in that Class of Landholders.
With regard to Ships Rooms, it is easy to see, in the short Mention I have just made of them, that they are quite the Opposite to private Property, and therefore hardly come within the Description of Titles which we are now seeking—Ships Rooms and all vacant and void Spaces, which may be turned into Ships Rooms by those who chuse so to occupy them, are in common for the first Taker, who may possess One for the Season, at the End of which he must leave it, with all the Improvements he has made (which he is expressly prohibited by the Statute from removing) for some other Person to enjoy the next Season. The Consequence is, that this commonable Part of the Shore is of very little Value, and in some Places of none at all. In those Harbours where a clean Sea-beach is thrown up in great Quantities (as at Ferryland) and they are in the Practice of drying their Fish upon the Beach, a Ship's Room of that Kind is of Use ; but in Harbours where there is no Beach, as at St. John's, and Fish cannot be dried on a Ship's Room, without the Expence of building a Flake, there a Ship's Room is not worth taking ; and we see in consequence of it, some of the choicest Spots in the Harbour of St. John's lie vacant ; no one thinking it worth his while to lay out Money on Ground which belongs to the Public.
However, it must be confessed that since commonable Ground has sunk in Value, there has been less Conscience or Scruple in making Encroachments on it ; and it is owing to this that Ships Rooms have been gradually giving way to the Inclosures that are continually streightening them on all sides. Many were interested in conniving at this ; and most People, for the above Reasons, thought it more beneficial to the Public that it should be so appropriated. These Innovations were made long ago, and are now of so long standing that nobody thinks of contesting the Point, unless it is some litigious Man, who seeks only to vex his Neighbour, and then the Claim meets with no Encouragement from a Court.
However, this Change in the State of commonable Ground on the Shore caused Alarm in some Persons who were solicitous to preserve the old System ; finding so little remaining unoccupied of what used to be Ships Rooms, they thought the best Method of recovering the System, without disturbing private Rights, by exciting dormant and forgotten Claims, was to create a new Quantity of commonable Ground ; and it was accordingly declared by Stat. 15 Geo. III. that all vacant and void Spaces whatsoever should be considered as Ships Rooms.
From this Account of Ships Rooms, and the Change they have undergone, it is easy to see, that a great Part of the Ground, which might have been
held for the Season under this Parliamentary Title, has passed into the Class of Land holden by Occupancy, and some of it, though less likely, into that of Land given by Grants from Governors.
Upon the Whole, the Title to an exclusive private Property in Ground must either be by Grant from some Governor or his Surrogate, by Possession before the Year 1685, or by Occupancy ; and as Titles of the Second Sort cannot, I believe, be made out, all Titles may be reduced to Grants and Occupancy, the Title to Ships Rooms being rather a Right of Common than a Title to Land.
Whatever may be the original Title to Land, and the Security in it as against the Crown, the Owners as against One another remain undisturbed, and they sell, lease, and mortgage the same as in any other Part of the King's Dominions. Some of these Places, where Storehouses and Dwellings are built, let for very high Rents. Many Persons have such Estates, that bring in from One hundred to Three or Four hundred Pounds per Annum. Some of these live in the Island, some reside in England, and have the Rents remitted to them. There are Instances, where Persons resident in the United States, and become Citizens there, have received Rents from Newfoundland. It is upon Consideration of all these Facts that I thought, and still think the
Crown should receive some Acknowledgement, by Ways of Quit Rent, for Ground which is so valuable to the Possessors.
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The Population of Newfoundland has certainly (by the best Accounts) increased considerably of late Years : I take the Beginning of this great Increase to have been at the Time the War with the Colonies broke out ; and it has increased, for similar Reasons, still more since the Peace. We find, all through the History of this Government ; that Newfoundland was resorted to by the New Englanders, as a Place for procuring Fishermen, Seamen, and Artificers ; that Bounties were given for that Purpose by their Government ; and that various Means were practised for seducing away our People to that Colony ; they have been carried to the Number of Three or Four hundred in a Season. This Drain was always a Subject of Jealousy to the Mother Country, and it always made a Part of the Consideration, when the Probability of Newfoundland becoming populous was debated. Since this Intercourse has been stopped, every Person who does not return to the Mother Country stays in the Island ; this of itself must add greatly to the Numbers of the lower Class of People. The Merchants are also increased, at St. John's at least, by Persons who come from the revolted Colonies ; but these are few in Number compared with those who have engaged in the Trade of late Years from other Parts of the British Dominions.
That Revolution has made an Alteration in the Value and Importance of Newfoundland, which seems to me never to have been sufficiently considered. It appears to me, that since the Peace 1783, Newfoundland has been more completely our own ; that it has been a more genuine British Fishery, and of more Value to the Mother Country, than it ever was before. It is become a Sort of Cul de Sac ; what does not stay there must come to Great Britain