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CENTRE FOR NEWFOUNDLAND STUDIES TOTAL OF 10 PAGES ONLY MAY BE XEROXED (Without Author's Permission) INFORMATION TO USERS This manuscript has been reproduced from the microfilm master. UMI films the text directly from the original or copy submitted. Thus, some thesis and dissertation copies are in typewriter face, while others may be from any type of computer printer. The quality of this reproduction is dependent upon the quality of the copy submitted. Broken or indistind print, colored or poor quality illustrations and photographs, print bleedthrough, substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send UMI a complete manuscript and there are missing pages, these will be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. 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Bell & Howell Information and Learning 300 North Zeeb Road, Ann Arbor, Ml 48106-1346 USA 01\.U.. 800-521...()6()() National Ubrary Bibliotheque nationale 1+1 of Canada du Canada Acquisitions and Acquisitions et Bibliographic Services services bibliographiques 395 Wellington Street 395, 11.1e Wellington Ottawa ON KtA ON4 Ottawa ON K 1A ON4 canada canada Your 11M Votflt rrtterflrtal The author has granted a non L' auteur a accorde une licence non exclusive licence allowing the exclusive permettant a Ia National Library of Canada to Bibliotheque nationale du Canada de reproduce, loan, distribute or sell reproduire, preter, distribuer ou copies of this thesis in microform, vendre des copies de cette these sous paper or electronic formats. la forme de microfiche/film, de reproduction sur papier ou sur format electronique. The author retains ownership of the L' auteur conserve Ia propriete du copyright in this thesis. Neither the droit d'auteur qui protege cette these. thesis nor substantial extracts from it Ni la these ni des extraits substantiels may be printed or ot..lterwise de celle-ci ne doivent etre imprimes reproduced without the author's ou autrement reproduits sans son pemusston. autorisation. 0-812-42478-2 Canadi MATRllvlONIAL PROPERTY LAW IN NEWFOUNDLAND TO THE END OF TilE NINETEENTH CENTURY by Trudi Dale Johnson A thesis submitted to the School of Graduate Studies in partial fulfilment of the requirements for the degree of Doctor of Philosophy Deparunent of History Memorial University of Newfoundland November 1998 St. John's Newfoundland ABSTRACT In Newfoundland, the passage of three married women's property acts between 1876 and 1895 occurred without any apparent public demand, reform movement, or community response. Although the acts expanded the definition of married women's property, they were only significant to a small minority of married women in Newfoundland at the time of their passage. This was because the legislation largely put in statutory fonn an existing matrimonial property system which had evolved since the earliest days of English contact. Three broad factors had contributed to the formation of this system. The first was the reception of English law of property, marriage and inheritance. Although they were clearly defmed by English law they were applied as far as they could be to local circumstances in Newfoundland. A second factor was the meaning and signiticance of property in light of Newfoundland's place on England's agenda. From the time of England's earliest interest in Newfoundland, the cod fishery determined the de11nition of property on the island. As the number of permanent residents increased, there were legislative and judicial attempts to provide a framework for a matrimonial property regime. Finally, the prominent place of customary practice in the ways that residents acquired property and passed it on to future generations was a third factor influencing the evolution of matrimonial property rights. The partible inheritance system that evolved up to the end of the nineteenth century suited the social and economic conditions of the island and reflected the long-standing custom of possessory claim. Property was conveyed through gifts, deeds of conveyance, trusts, wills and by intestacy by family members who were motivated by custom, affection, and desires to provide for the economic security of the next generation as well as to recognize the beneficiaries' contribution to the survival and well- ii being of the family. Inheritance practices indicate a society that placed the needs and responsibilities of the family above individual rights. thus tempering the English law of coverture. The development of a matrimonial property regime in Newfoundland was a gradual. uncoordinated process which received little direction from England. The reception of English property law depended on the tests of local experience and utility. Similarly. late in the nineteenth century Newfoundland adopted English statutory reforms to meet local needs in a way which resolved the ambivalence and contradiction of decided cases. iii ACKNOWLEDGMENTS I would like to extend my appreciation to the members of my supervisory committee, Dr. Christopher English, Dr. Shannon Ryan and Dr. Linda Kealey for their support and assistance in the completion of this dissertation. I especially appreciate the wisdom, patience and unending encouragement of my supervisor, Dr. English, who inspired my interest in legal history. The process of conducting research for this dissertation was greatly assisted by the staff of the Centre for Newfoundland Studies in the Queen Elizabeth II Library of Memorial University. I am particularly grateful to the personnel of the Centre for Newfoundland Studies Archives, Bert Riggs, Linda White and Gail Weir. Their efforts at locating documents and providing background details proved to be invaluable. Appreciation is also extended to Cal Best and Patricia Ryan at the Provincial Archives of Newfoundland and Labrador for their kind assistance with research of the court records. I also value the friendship and efforts of the staff of the History Department, Fran Warren and Beverly Evans-Hong. Finally, special appreciation is extended to my husband, Albert, whose encouragement and humour sustained me through this research and indeed the entire doctoral program. This dissertation is dedicated to the memory of my mother, Joyce Carter White, who taught me so much. iv TABLE OF CONfENTS Title Page . 1 Abstract . ii Acknowledgments . iv Table of Contents . v List of Tables . vii List of Appendices . viii Chapter 1- Introduction . l 1.1 The Sources . 11 Chapter 2 - Review of the Literature on Matrimonial Property . 14 Chapter 3 - The English Law of Property, Inheritance and Marriage . 48 3.1 Areas of English Law which affected Property Rights . 51 3.2 English Law of Inheritance . 52 3.3 English Marriage Law . 59 3.4 English Matrimonial Property Law . 60 Chapter 4 - "Quiet and Peaceable Possession": Defining Property and Property Law in Newfoundland.. 75 ·tl ··As Far as the Same can be Applied": Reception of Law ........... 75 4.2 The Imperial and Local Context: The Fishery . 79 4.3 The Beginning of Statutory Regulation . 91 4.4 The Judicature Acts ................................... 101 4.5 "The Wants of a Population so Peculiarly Situated": Applying English Law ....................................... 113 Chapter 5- "Usages Incident to our Present Condition": Settling the Reception Issue . 119 v 5.1 Marriage Law in Newfoundland ........................... 120 5.2 The "'English Law" Bill ........... .................... 132 5.3 The Chane1s Real Act . 139 Chapter 6- "Share and Share Alike": Inheritance and Customary Practices ... 159 6.1 The Domestic Economy ................................ 160 6.2 Married Women and the Courts . 162 6.3 Inheritance Practices . 171 6.4 Deed of Gift . 172 6.5 Intestacy .......................................... 180 6.6 Testation Practices ............................. ... .... 181 6.7 Property in Trust ..................................... 208 6.8 Women's Wills ...................................... 212 6.9 Inheritance Cases .................................... 219 6.10 Statutory Reform, 1876- 1895 .......................... 224 Chapter 7 - Conclusions ..................... ............... 234 Appendices . 241 Bibliography ... ...................... ......... ... ..... 309 vi LIST OFTABLES Table 6.1 Distribution of Deeds of Gift . 173 Table 6.2 Distribution of Wills by Decade .. ........ .................. 183 Table 6.3 Distribution of Wills by Gender . 184 Table 6.4 Distribution of provisions in wills by male testators .. .. ........... 186 Table 6.5 Bequests to widows in wills by male testators who had widows, sons and/or daughters included as beneficiaries . 188 Table 6.6 Special provisions pertaining to widows and children in wills by male testators . 189 Table 6. 7 Wills by male testators where there is at least one daughter included as a beneficiary ...... .. .................... ....... 197 Table 6.8 _Vv:'ills by male testators where there is at least one son included as a benetlctary . 197 Table 6.9 Wills by male testators where there are bequests