Elective Representation Takes Hold





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.



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.



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

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 cast 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, inasmuch

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 prospects 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.





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