Duncan Campbell's History of Prince Edward Island - Ch. 9


Bill to make the Legislative Council elective - Change of Government - Address to the Queen, craving to give effect to the Commissioners' Award - A Review of recent Proceedings in regard to the Land Question - The Assembly willing to meet the views of Proprietors in regard to the appointment of Commissioners - The Assembly and the Commissioners right, and the Colonial Secretary wrong - The Reason-why given - The rejection of the Award unreasonable - Delegates sent to England on the Land Question - The Result.

THE house of assembly met on the second of December, 1862, for the purpose of considering the present. position of the land question, with a view to a speedy solution. In his opening speech, the lieutenant-governor stated that he had received a despatch from the colonial secretary, informing him that the royal assent had been given to an act (which had been introduced by the Honorable Mr. Haviland) to change the constitution of the legislative council, by rendering the same elective. This made it necessary to dissolve the house before it could enter on the special business for the transaction of which it had been convened. The new election would afford an opportunity to the people to express a decided opinion as to the award; and the issue was looked forward to with deep interest. The election resulted in a large majority approving of that document. The new house met early in March. The opening paragraph of the governor's speech referred to the marriage of his Royal Highness the Prince of Wales to the Princess Alexandra, of Denmark, which had been recently consummated. Reference was also made in the speech to the decision of the colonial secretary, that

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the commissioners on the land question had exceeded their powers in their report; but His Excellency expressed his Conviction that the house would exert itself to find a satisfactory solution of the difficulties which had so long retarded the prosperity of the island.

On the governor's speech being read, Colonel Gray said that the members of the government having tendered their resignations, he had been commanded by His Excellency to form a new administration, and he accordingly announced the following names as comprising His Excellency's responsible advisers: John Hamilton Gray, president of the council; Edward Palmer, attorney general; James Yeo, John Longworth, James C. Pope, David Kaye, James McLean, Daniel Davies, and William Henry Pope, colonial secretary. Amongst the first business submitted to the house was an address to the Queen, in which the whole history of the appointment and proceedings of the commission was detailed, and praying that Her Majesty would cause it to be notified to the proprietors affected by the award that unless cause. to the contrary should be shown before a judicial tribunal to be appointed by Her Majesty, her sanction would be given to the bills passed to give effect to the award. That address was duly forwarded by the governor to the colonial secretary, and His Grace's decision in regard to its contents was given fully in a despatch, dated the eleventh of July, 1863. The duke observed that, as he was not aware of any method by which the question could be submitted to any court of justice, and as the council and assembly had not suggested any such method, he considered that the course most satisfactory to them would be that of ascertaining from the law officers of the Crown, first, whether the so-called award was, in itself, liable to any objection founded upon any principle of law or equity; and next, whether it was

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possible, by any proceeding in law or equity, to give effect to the wish of the Prince Edward Island legislature, by enabling the proprietors or tenants to show cause why Her Majesty's assent should or should not be given to the proposed bill for giving effect to the award of the commissioners. In their replies to the questions put, the law officers of the Crown, Sir William Atherton and Sir Roundell Palmer, said that they did not consider the term "award" applicable with any propriety to the report of the commissioners of inquiry. There was no reference or submission, properly so-called. The gentlemen who signed the letter to the duke, dated the thirteenth of February, 1860, were incompetent to bind the general body of proprietors of land in Prince Edward Island, and had not attempted or professed to do so. And on the other hand, it was clear that they did not propose or intend by that letter to bind themselves individually, unless the general body of proprietors would be also bound. The writer has put some of the words of the law officers of the Crown in italics, in order that the reader may specially mark them as bearing upon subsequent remarks which he intends to offer. The law officers were further of opinion, upon the substance of the case, that the commissioners had not executed the authority which alone was proposed to be conferred upon them on the part of the landowners who signed the letter of the thirteenth February, 1860; and that a recommendation that the price to be paid by a tenant for the purchase of his land should be settled, in each particular instance in which the landlord and tenant might differ about the same, by arbitration, was not, either literally or substantially, within the scope of that authority. The law officers of the Crown thus fortified the position taken by the Duke of Newcastle and the proprietors, in reference to the award of the commissioners.

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In coming to a just decision respecting the conflicting opinions which we have endeavored to present with precision and clearness, it is necessary to review the whole proceedings.

In the year 1858, Sir Edward Bulwer Lytton, secretary of state for the colonies, intimated to the lieutenant-governor of Prince Edward Island that the whole question of the land tenures was engaging his anxious attention, and that it would give him unfeigned pleasure to receive such suggestions for their amicable settlement as could be accepted by Her Majesty's government. In consequence of the expression of this wish, the house of assembly adopted certain resolutions praying for the appointment of a commission as offering in their judgment the best means for the satisfactory adjustment of existing disputes, intimating at the same time that, in the opinion of the house, the basis of such adjustment. would be found in a large remission of arrears of rent, and in giving every tenant, holding under a long lease, the power to purchase his farm at a certain fixed rate. In the mean time a change took place in the imperial government, and the Duke of Newcastle became colonial secretary, who wrote in a despatch dated the sixth September, 1869, "that any prospect of a beneficial result from the labors of the commission would be nullified if its action were fettered by conditions such as the assembly proposed. I cannot," said his grace, "advise Her Majesty to entertain the question, unless it is fully understood that the commissioners are at liberty to propose any measure which they themselves may deem desirable." A copy of the memorial of the house was sent by order of the Duke to Sir Samuel Cunard, requesting him to call a meeting of landlords, for the purpose of ascertaining whether there were any concessions which they were willing to make, with a view to bring the questions in dispute to an amicable issue. To the letter of

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his grace, Sir Samuel and other proprietors replied, that they would readily acquiesce in any arrangement that might be practicable for the purpose of settling the various questions alluded to in the memorial of the house of assembly, but that they did not think the appointment of commissioners, in the manner proposed, would be the most desirable mode of procedure, as the labors of such commissioners would only terminate in a report which would not be binding on any of the parties interested, and they - the proprietors - proposed that three commissioners or referees should be appointed, - one to be named by Her Majesty, one by the house of assembly, and one by the proprietors, - and that they should have power to enter on all the inquiries that might be necessary, and to decide on the different questions that might be brought before them, giving, of course, to the parties interested, an opportunity of being heard.

The house of assembly, instead of throwing any obstacle in the way of the proposed arrangement, at once agreed to the suggestions of the colonial secretary and the proprietors, and to abide by the decision of the commissioners, or the majority of them, and pledged themselves to concur in whatever measures might be required to give validity to the decision, - naming the Honorable Joseph Howe as commissioner in behalf of the tenantry of the island.

The duke, as previously stated, expressed his satisfaction at the promptitude of the concurrence of the assembly in the suggestions offered, and the home government and the proprietors having named the other two commissioners, a commission was drawn up, dated the twenty-fifth day of June, 1860. The commissioners executed the task committed to them, and on the eighteenth of July, 1861, transmitted their report and award to the Duke of Newcastle, who complimented the commissioners on their ability and

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impartiality, but at the same time objected to some of the cardinal points of their award.

Whilst the proprietors objected to the award, and regarded it as not binding upon them, the house of assembly honorably adopted it in all its provisions. Then followed the opinion of the law officers of the Crown, which was emphatically favorable to the views of the colonial secretary and the proprietors.

It is, we think, impossible to review these proceedings carefully and impartially without coming to the conclusion that the colonial secretary, the proprietors, and the Crown lawyers were wrong, and the government and the legislature of Prince Edward Island right, In the view which they took of the powers and functions with which the commissioners were invested. There is a very strong presumption, it may be remarked, that the commissioners - three gentlemen of acknowledged ability and experience - could not have mistaken, so completely as the rejection of their award assumed, the nature of their duties; and during the course of the investigation there is not the shadow of a doubt that the almost universal opinion in the island was, that the coming award of the commissioners was to be held as a final settlement of the questions at issue, so far as the parties who deliberately appointed them were concerned. That such was the opinion of the proprietors, is proved by the most important and significant fact that, in the communication they addressed to the Duke of Newcastle on the thirteenth of February, 1860, they took exception to the appointment of a commissioner or commissioners in the manner proposed by the legislature, on the specific ground that the resulting decision "would not be binding on any of the parties interested"; and, in order to make the anticipated award positively binding, they proposed an alteration in the con-

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stitution of the proposed commission, which was unhesitatingly adopted. How, in the face of this fact, Sir William Atherton and Sir Roundell Palmer could come to the conclusion that the consenting proprietors did not intend, by, the letter to which we have alluded, "to bind themselves, individually, unless the general body of proprietors would also be bound," seems incomprehensible. The proprietors who subscribed the letter were perfectly aware that unanimity amongst the proprietors could not at present be obtained. They did not complain of the absence of such unanimity, nor did they even insinuate that it would by them be regarded as a necessary condition of adherence to the anticipated decision of the commissioners. It is impossible that clear-headed men, sensitively alive to their own interests, could have a mental reservation to that effect, without giving it form and substance in so important a communication; nor can the monstrous notion, that whilst they insisted on the legislature being bound, they did not regard themselves as equally bound, be for a moment entertained. Is it credible that the esteemed gentleman, J. W. Ritchie (now Judge Ritchie), whom they entrusted in the reference as their representative, could have been left in ignorance on so important a point? But the words of the Duke of Newcastle are decisive on this point. In his despatch of the second January, 1861, to the lieutenant-governor, he says: I trust you will impress upon the commissioners, if requisite, the necessity of avoiding, as far as possible, any steps calculated to excite unreasonable expectations, or to stimulate agitation; on the other hand, while assuring the proprietors that the award of the commissioners will not be enforced by Her Majesty's government against any persons who have not, either personally or by their representatives, consented to refer their claims to arbitration, I should wish

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you also to observe to them, that their refusal to concur frankly in a measure which was intended to compose existing differences, and which, so far as it has yet proceeded, has been assented to by a large portion of their body, may materially influence the conduct of Her Majesty's government if called upon to support them in any future disputes with their tenants." If his grace regarded the proprietors who had not concurred in the reference as not bound to abide by it, it surely must be conceded to be good logic that he must have believed the concurring proprietors as firmly bound, both in point of fact and law. But it remained for the learned law officers of the Crown to put a climax to their decision by broadly asserting "that there was no reference or submission, properly so called." Now, the most effectual answer that can be given to this statement is the very words of the royal commission, "Now, know ye, that we, taking the premises into our royal consideration, are graciously pleased to nominate and appoint, and do by these presents nominate and appoint our trusty and well-beloved John Hamilton Gray, Esquire, Joseph Howe, Esquire, and John William Ritchie, Esquire, to be our commissioners for inquiring into the said differences, and for adjusting the same on fair and equitable principles." If that was not, in every legitimate sense, a reference and submission, the commission was a transparent farce, and the English language has ceased to convey definite ideas. How did the commissioners regard the matter? "Perhaps," said they in their report, "no three men in British America were ever called to arbitrate upon interests of the same magnitude, or questions of greater delicacy affecting the welfare of large numbers of people. If a judge or a juror, about to decide the title to a single estate, feels the responsibility of his position, the undersigned may be pardoned for admitting

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that, with hundreds of estates, and the interests of many thousands of persons dependent upon the adjudication, they have only been sustained by a very sincere desire to restore peace to a disturbed province." And what did all the legal gentlemen who, as counsel, represented before the commissioners the various interests involved, think of the powers with which they - the commissioners - were invested? Why, all their speeches assumed that they were addressing themselves to adjudicators who had ample authority to solve the questions in dispute. This was admitted by Sir Samuel Cunard, as representing his co-proprietors, after the award of the commissioners was given; for in writing the Duke of Newcastle, the law officers of the Crown represent him as saying " that the landlords were ready to be bound by the decision of the three commissioners, but that they were not prepared to hand over their interests to the proposed arbitrators, and to embark in the expense and dispute consequent on a multitude of petty arbitrations,"- referring to the arbitrators proposed by the commissioners to determine the value of every individual property, with a view to purchase by the tenant. Yet, in the face of such overwhelming evidence, the colonial secretary had the coolness to parade the opinion of the law officers of the Crown before the government, legislature, and people of Prince Edward Island, that there was no reference or award, properly so called, very prudently abstaining from any expression of his own opinion on the point.

The principle on which the Duke of Newcastle rejected the award was, that a man who agrees to refer his case to one tribunal cannot, therefore, be forced to submit it to another. The equity of that principle cannot be denied. What are the facts? The commissioners, unable to conduct an examination into all the cases, recommended that

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arbitrators, mutually chosen, should undertake the work. They laid down general principles, and left the details to be executed by others. According to his grace's determination, as expressed in his own words, "It was very desirable that the commissioners should go into the inquiry unfettered by any conditions such as the assembly wished to impose." The commissioners were enjoined by his grace "to devote their efforts to framing such recommendations as should be demanded by the equity of the case," and their conclusions "would possess double weight if, happily, they should be unanimous." Their recommendations and conclusions were adopted unanimously; yet, in the estimation of his grace they, after all, amounted to nothing more than an expression of opinion; for, said his grace, addressing the lieutenant-governor, "I must instruct you, therefore, however unwillingly, to treat the commissioners' award only as an expression of opinion, which, however valuable as such, cannot be made legally binding on the parties concerned." If it was simply the opinion of the able men appointed as commissioners that was required, it could have been probably obtained without the formalities of a royal commission, and unaccompanied by some of the solemnities of a judicial tribunal; and if these gentlemen had been aware that their investigations and decisions were to be so easily "put out of the way," it is certain they would never have condescended to undertake the work; nor would the government or the legislature of the island have gone through business which they thought possible to come, through no fault of theirs, to so comical a termination.

But, assuming that the commissioners had mistaken the nature of their functions in one or two particulars, on what ground could all their decisions be rejected? Because an error in judgment was committed in certain cases, was that

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any good reason for superciliously brushing aside the whole report, and divesting it of all binding authority? We must leave the reader to answer the question according to his judgment. Practically, the colonial secretary said to the commissioners, on the conclusion of their labors: You have conducted the investigation with ability and impartiality; you have presented a report which has exhausted all the facts necessary to a just decision; but you, at the same time, have completely mistaken the nature of your duties, and your award, if such it can be designated, is without any binding value, and must, therefore, be treated as simply your opinion, and nothing more.

On the case being submitted to Sir Hugh Cairns, for his opinion as to its legal aspects, he stated that the commissioners were invested with authority to inquire into all differences existing between landlords and their tenants, and to propose, as a remedy for the settlement of such differences, any measure which they might think desirable, - that in consequence of the unconstitutional course adopted by the colonial office in reference to the commission, there was no legal validity in any of the proceedings which had taken place. But he expressed, at the same time, the opinion that the proprietors who proposed the commission were not morally justified in repudiating the finding of the commission merely because there were certain other proprietors who did not become parties to the proceeding. Sir Hugh Cairns might have added, that the home government were, in honor, bound to sustain the award of the commissioners, and to give validity to the acts of the assembly.

Impressed with the conviction that the home government, notwithstanding its treatment of the commissioners' award, would be disposed to give effect to principles of settlement akin to those recommended by the commissioners, the

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island government resolved to send Messrs. Edward Palmer and W. H. Pope as delegates to England to submit fresh conditions, which might prove acceptable. In October, 1863,. these gentlemen had an interview with the colonial secretary (the Duke of Newcastle), when the land question was discussed. The proposals of the delegates were subsequently embodied in a communication addressed to the colonial secretary, and dated the thirteenth of October. A copy of that communication was sent from the colonial office to Sir Samuel Cunard, with the view of having its contents submitted to the proprietors by that gentleman. On the fourteenth of November, the baronet sent to the Duke of Newcastle a reply, in which he presented, at considerable length, his own views of the points at issue. He contended at the outset that the granting of the land originally in large blocks was an act of necessity, - that the grantees had all lost very heavily by accepting the grants, and that no individual at present on the island had been injured by that proceeding, but, on the contrary, the grants had been a fruitful source of profit to the present generation." This novel and intensely absurd proposition Sir Samuel proceeded to establish by reference to the taxation to which the proprietors were subjected, and the various measures which had been passed by the local legislature, and confirmed by the home government. Early in December following, Sir Samuel addressed another letter to the Duke of Newcastle, enclosing a bill which, he said, would he acceptable to the proprietors if adopted in its integrity. To the baronet's letters and bill, Mr. Pope replied, in an able and exhaustive communication, dated the eighteenth of December, which concluded in the following words: " I regret to say, that I cannot construe Sir Samuel Cunard's communication, on the subject of the proposals for the settlement of the land question,

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in any other sense than as indicative of unwillingness, on his part at least, to make any such reasonable concessions to the tenantry as would afford that relief which is essential, in order to secure the colony generally from those much-to-be-dreaded evils which necessarily result from wide-spread agrarian agitation.

The delegates returned to Prince Edward Island, and presented an elaborate report of their proceedings. No further attempt was made to settle the land question till, at the suggestion - as we are given to understand - of the proprietors, an act was introduced, in 1864, for settling the differences between landlord and tenant, and to enable tenants on certain townships to purchase the fee-simple of their farms at fifteen years' rent. This act passed, and was supplemented in the following year by another act to facilitate the working of the previous one, - authorising the government to provide a sum not exceeding fifty thousand pounds, in order to enable tenants to purchase their lands, - no leaseholder or tenant being entitled to aid beyond one half the purchase-money of his farm.

Here we must refer to an important mission on which the Honorable Joseph Hensley was sent by the island government to England, in the year 1867. He was authorized to raise a loan of money for the public services of the island; to apply to the various proprietors of township lands in Great Britain and Ireland, and ascertain the terms upon which they would be willing to sell their lands to the government; and also to submit the views of the executive council to the imperial government in relation to a demand for the payment of nearly five thousand pounds, sterling, made for the transport and maintenance of troops. This force had been demanded to suppress disturbances which occurred on the island in 1865, and which were the very

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natural result of that vicious system of land tenure, for the origin and continuance of which the imperial government was responsible. Mr. Hensley poured into the ear of the colonial secretary (the Duke of Buckingham) wholesome truths concerning the constant source of trouble, expense, and discontent the system had proved, and the extent to which the prosperity of the colony had been thereby retarded. The demand of the imperial government was consequently modified. With respect to the loan of fifty thousand pounds, sterling, which Mr. Hensley was empowered to arrange, he wisely deferred, for solid financial reasons, placing the application before the public, and otherwise executed his commission with discretion, diligence, and ability.

The confederation of the island with the Dominion having been effected, in a manner hereafter to be described, and according to stipulation under the terms of union ; - eight hundred thousand dollars having been placed at the disposal of the island government for the settlement of a question which, through the disgraceful supineness of successive Imperial governments, had been a perpetual source of strife and bitter contention for a nearly century, - the government. of the island, as a forlorn hope, resolved to take further action in order to ensure a settlement of the question, by introducing the land purchase act of 1875, which received the formal sanction of the governor-general of the Dominion. This act provided that commissioners should be appointed to determine the value of the various estates whose sale, under the provisions of the act, was to be rendered compulsory. The lieutenant-governor of the island was to appoint one commissioner; the governor-general of the Dominion another; and a third was to be appointed by each of the proprietors whose land was to be valued. As we write, the commissioners are sitting, and the value of the lands is

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being irrevocably determined. The measure, though one of absolute necessity , - so far as the local government and the interest of' the tenants are concerned,- must be regarded as the most unconstitutional act that ever received imperial sanction. It may be safely affirmed, that its parallel is not to be found in the British Statute Book. In its principle, it is antagonistic to the fundamental rights of property, as universally recognized in civilized states. The act, as a precedent, will, doubtless, be east in the teeth of the owners of British property by our modern communists, the tendency of whose views finds the solemn sanction of law in this measure. It is unjust to the landlord, in as - much as it compels him to sell his land even when he deems it his interest to retain it ; and it is unjust to the tenant, as it necessitates his paying, if he be desirous of securing the fee - simple of the land, a comparatively high price. But it is an act of governmental necessity, as further delay would greatly enhance the value of landed property. and thus render the of the tenant still more unsatisfactory. Far better, however, that millions of pounds sterling were devoted by Great Britain to the compensation of the landlords and tenants of Prince Edward Island, than that so pernicious an act should disgrace the British Colonial' Statute Book.

Chapter End

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History of Prince Edward Island

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