Of the Lands ceded by the French.
The parts that had been surrendered by the French, occasioned in various ways great contest and discontent. We have before seen, that it was the opinion of the board, that those parts fell under all the regulations of the stat. 10 and 11 Will. 3.; and this was confirmed by the opinion of the law officers. Another difficulty arose, in consequence of an agreement made by the Queen with the king of France, which went beyond the terms of the treaty of Utrecht. The French were by the treaty allowed to remain and enjoy their estates and settlements, provided they qualified themselves to be subjects of Great Britain—those who would not do this, had leave to go elsewhere; and take with them their moveable effects. Queen Anne, in consideration of the king of France releasing a number of protestant slaves out of the gallies, permitted the French inhabitants of Placentia, who were not willing to become her subjects, to sell their houses and lands there. It became therefore a question, whether this permission of the queen was valid, so as to dispose of lands which came to the crown by treaty. This point was submitted to Mr. West, counsel to the board of trade, for his opinion; and it was material to settle it, because many British subjects had purchased such lands from the French inhabitants.
His answer was, that the queen could not by her letter dispose of lands granted to the crown by treaty; but if she entered into any regular agreement with the court of France for that purpose, she was, by the law of nations, engaged to do every thing in her power to enable the French to have the benefit of it; which might be done by her confirming titles to such of her subjects as should pay the French a confederation in money, or otherwise, for their lands or houses[28]. Many such lands purchased by Governor Moody, having been used for fortifications, the board recommended compensation to be made him by the crown.
But when this question was so answered, what became of the right to ships’ rooms, as established by stat. 10 and 11 Will. 3. which statute was held to apply to the French parts now ceded, as well as to the other? Placentia being the best part for fishing, the English complained they were deprived of the benefit they had promised themselves, by this new acquisition, as they could not resort thither, without paying high rents for a plantation to cure their fish. In truth, many French still continued there, and they gave encouragement also to Biscayans, and to the people of Guipuscoa, who, we have seen, were starting a pretension to fish at Newfoundland, of right. All these together constituted a source of great discontent, and so continued for several years[29].
A Salmon Fishery granted.
Another question, as to the right of property at Newfoundland, arose upon a salmon fishery, which had been carried on and improved by Mr. Skeffington, between Cape Bonavista and Cape John, in a part never frequented by any fishing ships; he had cleared the country up the rivers for forty miles, and had built houses and stages. This person applied for an exclusive grant of this fishery for a term of years;—the matter being referred to Mr. West, he reported, that such a grant would not be inconsistent with the stat. 10 and 11 Will. 3[30]. The board accordingly recommended to his majesty, that a term of 21 years, in a sole fishery for salmon, in Fresh-water Bay, Ragged Harbour, Gander Bay, and Dog Creek, might very well be granted by his majesty, with liberty to cut wood and timber in the parts adjacent, provided it were at six miles distant from the shore[31].
In the close of the year 1728, we find the board of trade once more took up the subject of this trade and fishery, in consequence of the representations made by Lord Vere Beauclerck, the commodore on that station. In order to bring the subject under full discussion, they caused letters to be written to the chief magistrates of the different towns in the west, requesting the merchants to send their thoughts, whether any thing, and what, might be done for the further encouragement of the fishery.
Opinion on Sec. 7, of Stat. 10 and 11 Will 3.
With a view of understanding the situation and tenure by which persons held their lands in Newfoundland, the board referred, at this time, a question to Mr. Fane on the seventh clause of stat. 10 and 11 Will 3. “Whether the possessors had an inheritance therein, or only an estate for life?” and he was of opinion, that by the words of this clause, an estate for life only passed to the possessors, and consequently a right of alienation only for that interest, for the following reasons:—1st. From the general rule of law, that the king’s right and interest can never be bound by general words—2dly. From the inconvenience that would ensue, if by these general words an estate of inheritance should be construed to be given; for these houses, &c. might fall into hands improper for carrying on the fishery, or be bought by such as are in the interest of our enemies; or such new erections, houses, &c. might be purchased by one person, or two, and so an engrossing established, against the design and intention of the act—3dly. From the words of the clause, which seem to confine the possession to the builder; for the act says, to HIS or THEIR use; which implies, as he apprehended, that this is only a personal privilege; and a privilege it was sufficient, to have an estate for life in a house, &c. probably slightly built; and which, in all likelihood, would only last for the life of the builder—4thly. This act was made, he apprehended, in disfavour of the Newfoundland-men; and it could not be supposed such a favourable provision, in this instance, would be made for them, when they were discountenanced in every other clause of the act; especially too against the right and interest of the crown, which, in all doubtful cases, must be preferred[32].