Let it not be for a moment supposed that it is intended by these remarks to foster discontent in the island, to weaken the bonds which unite it to the old country, or to generate a spirit of disloyalty to the Crown or dissatisfaction towards good landlords. Were the writer inspired by so criminal a desire, his efforts would fail in the production of any such consequences. The people have learned to put no confidence either in governments or princes; but, under Almighty favor, by economy, temperance, and hard work, to trust to their own efforts in sweeping from the island the remnants of a pernicious system, and of attaining that measure of independence and prosperity to which such formidable obstacles have been presented, but the ultimate realization of which the capabilities of the island warrant. Since the island became British property, not a petition or complaint has been laid at the foot of the throne which has not breathed the most devoted loyalty; and the people, under trials which might have tested the patience of Job, have borne them with a degree of meekness and patience to which few parallels can be produced; and at this moment the beloved Queen of Great Britain has not more sturdy, faithful, and resolute defenders of her throne and person than the inhabitants of Prince Edward Island. Loyalty must be indigenous to a soil where, under such adverse conditions, it has taken such deep root and flourishes.
In the very year when the commissioners were prosecuting their inquiries, Prince Edward Island responded to the call for a defensive force by organizing twenty companies of volunteers, mustering upwards of a thousand men, showing a degree of loyalty, zeal, and energy in that direction inferior to no other portion of the Queen’s dominions.
A general census of the island was taken in 1861. The population was then – as certified in the most accurate returns – eighty thousand eight hundred and fifty-six, including three hundred and fifteen Indians. The churches numbered one hundred and fifty-six; schoolhouses, three hundred and two; and public teachers, two hundred and eighty. There were eighty-nine fishing establishments on the island, which produced twenty-two thousand barrels of herrings and gasperaux, seven thousand barrels of mackerel, thirty-nine thousand quintals of codfish, and seventeen thousand gallons of fish-oils. There were one hundred and forty-one grist-mills, one hundred and seventy-six saw-mills, and forty-six carding-mills; fifty-five tanneries, manufacturing one hundred and forty-three thousands pounds of leather.
The executive government having, in 1861, appointed commissioners to superintend the collection of products and manufactures of the island for the London exhibition of 1862, the duty was judiciously performed, and the articles forwarded to the exhibition under the charge of Mr. Henry Haszard, the secretary to the commissioners.
A profound sensation was caused in the island by intelligence of the seizure of Messrs. Mason and Slidell, civil servants of the Southern States, when under the protection of the English flag, on their passage from Havana to England on board the steamship Trent. A remonstrance was forwarded by the British government to that of the Northern States; and the act of the commander of the San Jacinto– the American vessel by which the outrage was committed – having been disapproved of by the American government, the Southern commissioners were set at liberty, and the dispute happily terminated.
On the eighth of January, 1862, intelligence of the death of His Royal Highness Prince Albert reached the island. He died at Windsor Castle on the fourteenth of December, 1861, in the forty-second year of his age. Official intimation of his death was communicated to the lieutenant-governor by the Duke of Newcastle, and His Excellency ordered that forty-two minute-guns should be fired from Saint George’s Battery at twelve o’clock, noon; and Her Majesty’s faithful subjects were enjoined to put themselves into mourning. The life of the departed Prince was one of singular purity and usefulness, and his memory will forever stand honorably associated with that of Queen Victoria, than whom a more virtuous and beloved Sovereign never swayed a British sceptre. An address of condolence to Her Majesty was adopted by the legislature.
In answer to a despatch from the governor to the colonial secretary, requesting that he should be favored with a copy of the land commissioners’ report, His Excellency received a despatch from the Duke of Newcastle, dated the seventh of February, 1862, accompanied by a copy of the report, which was anxiously desired by the people. His Grace said that he was desirous of expressing his appreciation of the painstaking, able, and impartial report which the commissioners had furnished, – a report which would derive additional weight from its unanimity, and which was the result of an investigation so complete that it had exhausted the material for inquiry into the facts of the case. The difficulties that remained were those which were inherent in the subject, and which had, for a long course of years, baffled every attempt at solution. His Grace, at the same time, held out no hope – for reasons which he did not state – that the loan of one hundred thousand pounds, in order to buy the estates of Prince Edward Island from their present owners, would be guaranteed. Mr. Labouchere, the colonial minister, suggested such a loan in 1855, and it was warmly advocated by Lord Stanley in 1858, when he held that office; and the people of the island had fair ground for additional complaint against the home government, when that government did not condescend even to state manfully the reasons for such a point-blank refusal, more especially as the commissioners had advocated most earnestly the imperial guaranty of such a loan, – such recommendation being one of the cardinal points in their award. The duke further intimated in the despatch that there appeared to be insuperable objections to that multiplicity of separate land arbitrations which would be the effect of the alternative measure alluded to in the commissioners’ report. Shorn of the vital portions of the award, which were thus politely ignored, the report was divested, to a large extent, of its immediate practical value; and the official compliment paid to the commissioners was but very poor compensation for the rejection of incomparably the most important portions of an award which had been arrived at after a painstaking and complete investigation, in the conduct of which was enlisted an amount of patience, impartiality, discrimination, and ability which it would be difficult to match. The secret of the mild manner in which imperial delinquencies, in the treatment of Prince Edward Island, were touched upon in this production may probably be found in a due appreciation by the commissioners of governmental sensitiveness on the point, producing the conviction that to ask for more than would probably be granted would injure – rather than promote – just claims to compensation.
The assembly met in February, and adopted a resolution, by a vote of twenty-three to six, pledging itself to introduce a measure to confirm the award of the commissioners in all its provisions. The action of the assembly in thus, without hesitation, honorably abiding by the award of the commissioners, without cavil or complaint, was highly creditable to its character; but the award did not meet with the same degree of approval at the hands of the landowners who were parties to the appointment of the commission. The Duke of Newcastle addressed a despatch to the governor, dated the fifth of April, 1862, enclosing a draft bill, drawn up by the proprietors, for settling the differences between landlords and tenants on certain townships, in the preamble of which it was stated that the commissioners, in providing that the value of land should be ascertained by arbitrators, to be appointed by the landlords and tenants, exceeded the authority intended to be given to them by the assembly and the proprietors, and if their suggestion were adopted, disputes and litigation between the landlords and tenants would ensue. Thus these gentlemen completely ignored the award of the commissioners, and proposed to substitute a remedy of their own. In thus acting, they had the support of the colonial secretary, for although, in the despatch by which the draft bill was accompanied his Grace did not express positive approval of the landowners’ proposals, he, nevertheless, stated that it would give him great pleasure if Sir Samuel Cunard’s anticipations as a proprietor were realized in reference to the bill.
Two acts had been promptly passed by the assembly on the land question, – one to give effect to the report of the commissioners, and another to facilitate the operation of the award in cases of anticipated difficulty; and the local government framed a minute in which they affirmed, in reference to the landlords’ proposed bill, that they could not believe that the legislature would sanction any measure bearing on the land question which might differ essentially from the principles embodied in the commissioners’ report. They asserted that the assembly deemed the government pledged to carry out the award of the commission, and they denied that the charge preferred in the preamble of the proprietors’ bill, that the commissioners had exceeded their commission, could be substantiated. From the language of the commission, the government argued that the powers conferred upon them were unlimited, – amply sufficient to empower them to define any mode of settlement of a purely equitable character. By a passage contained in a despatch of the colonial secretary, he seemed to apprehend that the arbitration system prescribed by the commissioners would necessitate a multiplicity of separate local arbitrations, which would constitute insuperable objections against this mode of adjustment. The government, however, did not anticipate that many of these arbitrations would take place in the practical working of the system. In their opinion, two or three cases on a township would have the effect of establishing a scale of prices which would become a standard of value. The minute – a temperate and well-reasoned document – concluded with an expression of the hope that the bills passed by the house of assembly would receive the royal sanction. They reminded the colonial secretary that the differences which the commissioners were appointed to determine had, for half a century, exerted a most baneful influence upon the colony, and that the people hailed with much satisfaction the prospect of having them adjusted. Should anything occur to prevent such adjustment, the consequences would be of a very serious nature, and result in causing much anxiety to Her Majesty’s ministers, and also to the local government.
To this minute, which was dated the twenty-second of July, 1862, the Duke of Newcastle replied in a despatch of the ninth of August, following. He expressed regret that he could not concur in the views of the government. The main questions which the commissioners were appointed to decide were: first, at what rate tenants ought to be allowed to acquire freehold interests in their property; and, next, what amount of arrears of rent should be remitted by the landlords. On the first and most important of these questions, the commissioners professed themselves unable to come to any conclusion, and, instead of deciding it, they recommended, virtually, that it should be decided by other arbitrators, to be hereafter nominated. This, however, he said, was not what they were charged to do: they were authorized by the proprietors to make an award themselves, but they were not authorized to transfer the duty of making that award to others. The trust confided to them was a personal one. The proprietors relied on the skill, knowledge, and fairness of the three gentlemen appointed in 1860; and they could not, therefore, be called upon, in deference to these gentlemen’s opinion, to confide their interests even to arbitrators specially designated in the award, much less to persons whose very mode of appointment was undetermined by it. This objection might be waived by the proprietors, but it was not waived; and being insisted on, the colonial secretary said he was obliged to admit that it was conclusive, and he was bound further to say that it was, in his opinion, an objection founded, not on any technical rule of law, but on a sound and indisputable principle of justice, – the principle, namely, that a person who has voluntarily submitted his case to the decision of one man, cannot, therefore, be compelled, without his consent, to transfer it to the decision of another.
For these reasons, the colonial minister did not advise Her Majesty to sanction the two acts which had been forwarded, and which were, of course, intended to render the award obligatory on all who had consented to the reference. The report of the commissioners was therefore regarded by the home government simply as an expression of opinion which was not binding, and which ought not to be allowed to stand in the way of any other proposal which promised an amicable settlement of the question.
CHAPTER IX
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 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 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.
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 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 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.