History of Prince Edward Island

by Duncan Campbell

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 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 constitution 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 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 that, with hundreds of estates, and the interests of many thousands of persons dependent upon their 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 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 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 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 be 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, 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 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.