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tion to improve to the utmost every opportunity of increasing the public revenue, would not have failed to sell this ground as part of “ Lady’s Ships-room ” if he had not been thoroughly convinced, upon evidence equally strong with that upon which the jury are now called on to decide in favour of the Crown, that it really did not belong to it.
Between this conflicting testimony, then, it is the peculiar province of the jury to determine to which side the greatest weight and credit ought to attach.—The evidence of Mr. Holbrook certainly carries with it much force ; not only as coming from an individual whose well known integrity places beyond the suspicion of wilfully misrepresenting facts, but whose professional knowledge must also render it improbable that he can be mistaken in the opinion he has offered upon them. Still, however, it is possible that he may so : and unquestionably the omission on the part of a keen and vigilant Governor, like Sir John Duckworth, who seized with avidity every occasion of adding to the Public Revenue, to dispose of this spot of ground at a time when a most exorbitant rent might have been obtained for it, can only be accounted for by supposing, either that he had ascertained by actual measurement, that it was not a part of “ Lady’s Ships-room,” as laid down in the parliamentary plan ; or, if it were indeed a part of it, that he did not consider himself authorised, under a just construction of the statute, to grant or let those parts of “ ships-rooms ” which, before the passing of the Act, had been “ possessed ” and occupied by private persons. If his non-interference with the ground now in dispute was influenced by the last of these motives, it can have no tendency whatever to invalidate Mr. Holbrook’s testimony ; and the jury ought, consequently, to be very cautious in admitting inferential deductions to counterbalance positive statements. Should they, however, upon a fair and careful examination of the evidence, truly and conscientiously believe that the disputed premises are not a part or portion, of “ Lady’s Ships-room,” as laid down in the parliamentary plan, they must, of course, give a verdict for the defendant ; but should they arrive at an opposite conclusion on this point, the far more difficult question will arise ; viz. Whether the Crown is entitled to recover the ground it now lays claim to, even if it does form a part of “ Lady’s Ships-room ? ”
As this is entirely a legal problem, the jury have a right to look to the Bench for information and instruction upon it : and the Court will not attempt to conceal that it enters upon the discharge of this duty with intensely painful feelings of anxiety and apprehension. Not, however, with feelings of any apprehension lest it should incur the disapprobation of the Government, by advancing doctrines contrary to its views and supposed interests ; nor, on the other hand, lest public censure and obloquy should attend a fair assertion of the legal rights of the Crown—for against the influence of such unworthy fears, even if a foundation for them should at any time exist, the Judges confidently trust they will ever be strongly fortified by a determination conscientiously to discharge their sacred functions without the least regard to any consequences which may result to themselves from a faithful and indepen-
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dent performance of their duty—but with feelings of apprehension originating in a real diffidence and distrust in their capacity and ability to handle a subject which has puzzled some of the most distinguished lawyers in England, and on which even the great Lord Hardwicke seems to have been averse from offering an opinion. The question, of what is a good title to land in this colony is, indeed, accompanied with such circumstances of doubt and difficulty that there is probably not a single individual, however confident he may feel in his professional talents and attainments, who could not decline a gratuitous discussion to it : and certainly nothing short of the coercive force of public duty could induce the Judges on this Bench to enter on a task which they have such reason to consider greatly beyond the measure of any strength and power they can bring to the execution of it. Compelled, however, as they have been by the present suit, and others of a similar nature which are also pending in the Court, to endeavour to form a settled and determined opinion upon this knotty question, they have investigated it in all its bearings with as much attention as the very small share of leisure they are permitted to enjoy would allow them to bestow upon it ; and they are, accordingly, now prepared to deliver their unanimous sentiments respecting it, not with dogmatical arrogance, as positively asserting that their opinion is right, but with an hope that it may prove to be correct, and with an honest confidence in the belief that it is so.
To exhibit the foundation upon which this opinion rests, it will be necessary to advert to the early history of this Island ; and to take a comprehensive view of all the Acts of Parliament which affect the right of the inhabitants of Newfoundland to hold land in it.
For many years after its discovery Newfoundland was nothing more than a station for carrying on a transitory fishery ; and everything in it was exclusively dedicated to the use of the vessels which annually repaired hither for the purpose of catching fish on the banks and coasts of the Island. It was probably a long time ere any attempt was made to form a permanent establishment on the shore ; and the first step towards it was perhaps made by a few persons who were left here during the winter by the masters of the fishing ships to take care of some articles of property, which, from motives of convenience, they are occasionally induced to leave behind them. In spite, however, of the severity and rigour of the climate, a resident population gradually grew up in the Island ; and with it arose a sedentary fishery, which was always considered to be most prejudicial to the success of the transitory fishery. The hostility which grew out of these conflicting interests, attended as it was by many acts of annoyance committed by the persons engaged in the transitory fishery, who were numerically, and still more in political influence, the stronger side, against the residents in the Island must, of course, have impeded the progress of population, but was yet so unable to suppress the growth of it that it became, towards the close of the 17th century, an object which was deemed worthy of some attention by the English Parliament : and, accordingly, though the professed object of the 10th and 11th Will. III., c. 25, was to encourage and promote the transitory fishery, it
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notwithstanding confers some important privileges upon the resident inhabitants. That Act, then, being the corner-stone or first foundation of all statutable claim to land in this country, the following table of the several sorts of title which could exist under it (framed upon a careful examination of its various enactments) seems to form a proper introduction to the subject to the present enquiry.
With reference, therefore, to the 10th and 11th Will. III., c. 25, all the land in this Island may be comprised in these five classes, and the nature of the property or interest which might be acquired or enjoyed in it, under the enactments of that statute, is shortly explained under each of those divisions :
No. I.
Land (whether “ Ship’s-rooms ” or not) seized and exclusively occupied by the resident inhabitants before the year 1685.
Of this class of occupiers (if there were any such) the Acts take no notice whatever ; and since the land in their possession is not in the least affected by any of its provisions, it seem that an uninterrupted possession of it for sixty years would confer a good title to it, even as against the Crown itself, under the general rule of English law.
No. II.
“ Ships-rooms ” which have been seized and occupied by the resident nhabitants in the period between the years 1685 and 1698.
The persons who had so seized on these “ Ships-rooms ” are directed and commanded to resign and relinquish them, to the perpetual use of the fishing-ships, on or before the 25th March, 1700.
No. III.
“ Ships-rooms ” existing as such, free from any interference with them on the part of the inhabitants, at the passing of Act in 1698.
Such “ Ships-rooms ” are specially set apart and exclusively dedicated to the use of fishing-ships for ever.
No. IV.
Land seized and occupied by the inhabitants between the years 1685 and 1698, which had not within that period been used as “ ships-rooms. ”
A quiet and peaceable possession and enjoyment of this land (as far, at least, as the purposes of the fishery are concerned) is secured to the actual occupiers thereof. The opinion of an eminent lawyer, however, is that the title
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conferred on them by the Act did not extend beyond a life interest in the land so occupied by them.—(Reeves’ History of Newfoundland, p. 63.)
No. V.
Such land (not before used as "Ships-rooms") as may hereafter be seized and occupied by any of the resident inhabitants.
The future occupation of such land, for the purposes of the fishery is permitted and sanctioned by the Act.
Thus all those parts of the country which had at any time been used as “ Ships-rooms ” since the year 1685, were for ever appropriated to the use of the fishing-ships : but a permission to occupy and possess all the sea-coast, not included in any of these ships-rooms, was distinctly conceded to the resident inhabitants. They were not, however, long left in the quiet enjoyment of this indulgence ; for the 15th Geo. III., c. 31, which was evidently designed to give further encouragement to the transitory fishery, and to check the strong tendency, which had then begun to manifest itself, to form a permanent settlement in the Island, seems, by its 2nd section, to have converted all the land* not then in the actual occupation of a resident inhabitant, into “ Ships-rooms ; ” and, consequently, to have taken away that privilege with respect to future occupation which the Statute of William had conferred on the inhabitants.
That portion, therefore, of the land which was not clothed with the character of “ Ships-rooms,” either under the Acts of William or of George the Third, must have been, comparatively, very small indeed : and accordingly, the far greater part of what is now in the occupation of individuals must be liable to be wrested from them by the Crown, if the statutes† which have since taken away the use of “ Ships-rooms ” do not confer any title on those persons who had previously taken possession of them. A field of litigation between the government and the people would thus be opened, of the extent of which some idea may be formed from the following passages, selected from those extracts which Mr. Reeves has inserted in his History of Newfoundland,‡ from the reports of Commanding Officers of the navy on this station to the Board of Trade.
“ It is common that what is done one year, in relation to fishing-rooms, is contradicted the next ; so that the fishing-rooms are not settled to this very day.” And another writes : “ I have given out several orders for the admirals and the oldest masters and planters to survey the stages and cook-rooms, etc., to know what belong to ships-rooms and what was boat-rooms ;
That is, all the margin of the shore, together with the land contiguous thereto, which would comprise all the land cultivated in the Island until within a very recent period.
† Viz : 51 Geo. III., ch. 45, and 5 Geo. IV., ch. 51.
‡ Pages 76 and 88
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and their report to me was, that they had not been surveyed so long, that there was none, either admirals, masters, or inhabitants, knew one from another.”
But if such difficulty existed in distinguishing “ Ships-rooms ” within twenty* years after the passing of the 10th and 11th William the Third, what may that difficulty be supposed to amount to after the lapse of more than a century ? And if it is the fact, that the use of a spot of ground by a fishing-ship at any time posterior to the year 1685, would be sufficient to defeat a claim to it, founded on undisturbed possession for upwards of a hundred years, what occupier of lands in this country could enjoy any reasonable assurance that his title to them might not now, or at any time hereafter, be brought into question ? It is certain that under such a construction of the law, the field of litigation would be co-extensive with the whole occupation and cultivation of land in this Island, on the borders of the sea, down to the year 1824. But it is next to impossible to suppose that the Legislature could have intended to place the government and the people in such an unfriendly relation towards each other : and as it is the duty of courts to construe and give effect to all laws, according to their true intention, this argument respecting intention, deduced from the consequences which must result from a particular construction of the 51st Geo. III., c. 45, ought certainly to have great weight if its expressions are otherwise obscure, and its meaning consequently ambiguous.
To determine, then, how far this argumentum ab inconvenienti† should influence the construction of the 51 Geo. III. c. 45, it will be desirable to take a review of the circumstances under which it was to be applied.
By the 10th and 11th Will. III., c. 25, and 15 Geo. III., c. 31, the principal part of the sea-coast, and of the land contiguous thereto was, as has been already shewn, set apart for the use of fishing-ships ; and the persons belonging to those ships were strictly entitled to what, in legal phraseology, is stiled an easement ; i.e., a right to use and occupy those lands for certain purposes, without having any property whatever in them. In order, too, to secure to them the full and undisturbed enjoyment of this easement, the statute of William strongly enjoins ‡ the resident inhabitants not to interfere in any
* The last of the letters here quoted was dated October, 1817 ; being just twenty years after the passing of the statute of William.
† In a note to Co. Litt., p. 66, a Mr. Hargrave has said : Arguments from inconvenience certainly deserve the greatest attention ; and where the weight of other reasoning is nearly on an equipoise, ought to turn the scale. And in the important case of Le Caux vs. Eden, 2 Doug. 609, Judge Buller resorted to this argument in support of his opinion : “ But,” observed his Lordship, “ if there had been no such authorities, and the question had been now to be decided for the first time, there can be no case in which that maxim, quod inconveniens est non licitum est, which is so often reiterated by Lord Coke, would deserve more attention. It is a very useful and wise maxim, when applied to new or undecided points ; and in this case the inconvenience would be intolerable, the convenience none, if such an action were sustained.” Great, however, as the inconvenience there alluded to by that learned judge certainly was, it still fell short of that which must result from such a construction of an Act of Parliament as would furnish occasion for universal litigation and contention between the Government and the people.
‡ In the 6th section.
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