An Account of Prince Edward Island in 1806 By John StewartConstitution, Laws and Religion
Map of PEI in 1806. Click on map for larger version (270k)
* By his Majesty's royal proclamation in 1763, regulating the division and boundaries of the different countries conquered from France in the preceding war, the Island was annexed to the province of Nova Scotia; this circumstance has never been forgotten, nor has the subsequent separation ever been forgiven by a certain set of people in that province, in consequence of which, I am sorry to say, that the Island has been subjected to much obloquy and misrepresentation, the object of which appears to be to prevent the settlement thereof as a separate colony, that it may be again re-united to Nova Scotia whereby the large unsettled grants would be brought under the operation of their escheat laws, and would speedily change hands, that is, instead of being owned in Great Britain and Ireland, they would pass into the hands of people of influence in and about the capital of that province. This project has been constantly in view ever since the settlement of the Island commenced, to which it has opposed very considerable obstructions in various ways, and is now more openly pursued than ever, the attorney general of that province being at present, I am informed, in England, avowedly for the purpose of bringing it about; whether such a measure will be attempted without the consent of the Island, after its having for many years enjoyed a complete constitution, remains to be seen; in the meantime, I will venture to say that hardly any thing short of the conquest and subjugation of the colony by a foreign power could be more generally disagreeable to its inhabitants. It will be said by the advocates for this measure, that I misrepresent their views, which they will say are directed by very different motives than what I attribute them to, and it will be pretended that far from having any wish to have the land regranted in the manner I have alledged, that their object is to put the Island in a way of being speedily settled and cultivated, and thereby becoming of that consequence and value to the public which its many natural advantages in point of soil and situation enable it to attain, and that the speculation I have attributed their views to, may be prevented by an instruction limiting future grants of land in the Island to one or two hundred acres; in that case the following table of fees taken in Nova Scotia will do something towards setting the very disinterested views of these people in a clear light.
The expence or fees of a court of escheats and forfeiture on an inquest of office are as follows,
£. S. D.The Secretary of the { The Commissioner of Escheats Province, who is Com- { and Forfeitures - - - - - - 3 10 0 missioner has these { Register - - - - - - - - - 1 3 4 three Fees. { Two Inquisitions - - - - - 2 0 0
The Attorney General - - - -.-.-.-.- 3 10 0
The Solicitor General - - - - - - - 2 6 8
The Jury, 12 at 2s.6d. each - - - - 1 10 0
The Clerk - - - - - - - - - - - - - 2 11 8
The Sheriff - - - - - - - - - - - - 1 3 4
The Surveyor General of Lands - - - 1 3 4
The Cryer of the Court - - - - - - - 0 5 0
Advertisements in the Newspapers,} giving notice of the proceedings } 20 0 0 said to cost generally about } -------- £38 3 4
These Fees are to be paid by any person who proceeds to escheat a grant of land whereon the terms and conditions of settlement have not been fulfilled, in order that he may get the whole, or a part thereof regranted to himself. Supposing one of our townships escheated by this proceeding, and that it is to be regranted in tracts of one hundred acres; the fees of office in Nova Scotia on a grant of a hundred acres, are about eighteen pounds currency, besides the expence of surveying, so that regranting a single township in that manner, would produce to the officers of government in that province no less a sum than three thousand six hundred pounds. Having some knowledge of the subject, I presume to say, that it will not be difficult to bring half the lands in the Island within the gripe of the Court of Escheats, if it is re-united to Nova Scotia, and from what has been said, my readers will see that the speculation is worth some exertion.
When the legislature meets in general assembly, the council forms the upper house, representing the lords in parliament, they then meet without the governor, the chief justice for the time being is ex officio president or speaker; they cannot vote by proxy, but enter their dissent, and their reasons therefore at large on the minutes; the council never publish their legislative minutes, but the house of representatives always print their own journals, both are transmitted to the office of the secretary of state for the colonies, with authenticated copies of such laws as pass during the session of the colonial legislature.
The house of representatives consists of eighteen members, elected by the people under the authority of a writ issued by the governor, lieutenant-governor or commander in chief for the time being; four members for each of the counties, and two for each of the towns :* They meet in general assembly, are prorogued and dissolved by the governor's proclamation; they chuse their speaker, subject to the governor's approbation, which is generally a matter of course: No personal privilege or advantage is claimed by the members, nor do they at present receive any allowance for their attendance. In all their proceedings when met in general assembly, they take the British house of commons for their model, the rules and regulations of which they have adopted as far as the same are yet applicable to the circumstances in which they are placed.
* All housekeepers, lessees of land in possession, and proprietors of land, being Protestants, are qualified to vote for the members of their respective counties; and for the towns all housekeepers and proprietors of a town or pasture lot within the town and royalty, being Protestants, are entitled to a vote: and any person qualified to be an elector, may become a candidate without farther qualification.
The colonies are understood to take the common law, and all the Statute Law of England antecedent to their establishment, * which may be applicable to their situation and circumstances, but this must be understood with many, and very considerable restrictions, many of the artificial refinements and distinctions introduced into the laws of this country cannot be applicable to them: the laws of police, and revenue, the mode of maintaining the established clergy, the poor laws, and the jurisdiction of the spiritual courts, and a multitude of other provisions are neither necessary nor convenient for them nor are they in force; what is admissible, and what shall be rejected, has hitherto been left to the discretion of their respective courts and on this head it may easily be believed opinions will differ much; it is therefore to be wished, that a more certain mode of determining the length to which it is to be carried may be devised.
* Black. Com. 107.
The legislature of the Island are invested with full power and authority * to make, constitute, and ordain laws, statutes, and ordinances, for the public peace welfare, and good government thereof, such laws, statutes, and ordinances, are not to be repugnant to, but as nearly as may be, agreeable to the laws of Great-Britain and the governor is directed by the royal instructions, not to assent to the passing of any law of a new or extraordinary nature, without the same has a clause suspending the operation thereof, until His Majesty's pleasure therein is known.
* By His Majesty's Royal Patent, under the Great Seal of Great Britain.
[Laws]
The innovations which have hitherto been made on the English laws are not many, though some of them are important; I shall endeavour to give an idea of them, taking the subjects up as they stand on our statute book.By an act of the 13th Of George the 3d, Cap. V. the damages on protested foreign bills of exchange are fixed at ten per cent. and the interest at six per cent over and above all charges of protest, &c.
By the 20th of George the 3d. Cap. VIII. For the prevention of clandestine and uncertain sales of houses, lands, and tenements, within the Island, and to the intent that it may be better known what right or title persons really and truly have in or to such estates as they offer for sale. It is enacted that all deeds, conveyances or mortgages of houses, lands, or tenements within the Island, shall be recorded at full length in the register's office within forty days next after their respective dates, if executed on the Island between the first day of May, and the first day of November; and within eighty days if there executed between the first day of November and the first day of May: and if executed in Great Britain or Ireland, then the said original deeds, or duly attested copies thereof, shall or may be recorded as aforesaid, within the space of two years from their respective dates. After the expiration of the said forty days, eighty days, or two years: all such deeds, &c. if not recorded as above directed, shall be of no force against any bona fide purchaser who shall comply with this act, or against any other person whatsoever except the grantor, or grantors, his or their heirs.
By the 25th George 3d, Cap. 1. the operation of this act is extended to all leases being of a longer duration than twenty years, and the term of two years allowed for the registering of deeds executed in Great Britain or Ireland is extended to all deeds, &c. executed in all other of His Majesty's dominions distant from the Island. Proof of the execution of all deeds, &c. is required before they can be recorded. By this act an option is given to the parties concerned, either to register all deeds, &c. at full length, or by a memorial thereof; and for want of such registering, all such deeds of sale, conveyances, mortgages, deeds of settlement, or conveyances of what nature or kind soever, deeds-poll, leases, or agreements of longer duration than ten years, of or concerning any lands, tenements, or hereditaments in this Island shall be adjudged fraudulent, and of no force or effect. This act not to bar the title of minors femme couvert, or persons non compos mentis, imprisoned, or absent from the Island, who are respectively entitled to sue and recover within two years after such impediment shall have been removed.
By an act of the 20th of George the 3d. Cap. IX. Creditors are enabled to attach the effects and estates of absent or absconding debtors, which are thereby rendered liable in law to the judgment to be recovered on such process, and subject to be taken in execution for satisfaction thereof, in whoever's hands the same may be: absent debtors against whom such judgments are recovered, are entitled to a re-hearing at any time within three years, and the plaintiff in such actions before any execution shall issue on such judgments, to give security to the satisfaction of the court, for the repayment of all monies levied by the said execution, in case the said judgment be reversed on such re-hearing. By an act of the 25th Of George 3d Cap. II. the operation of the above act is so far altered as to restrict creditors from proceeding against debtors who have never been resident on the Island, and security in double the amount is required before any execution is awarded against an absent debtor, conditioned to make restitution, in case the said judgment shall be reversed on a re-hearing; but the time allowed to absent debtors to appear either by themselves or attorney, and move to have the judgment by default taken off, is curtailed and limited to a year and a day from the time of entering judgment against such absent debtor.
By the 21st of George 3d. Cap. II. the estates of intestates, after paying all just debts and funeral expenses, are directed to be distributed by the judge of probates, one-third of the personal estate to the widow of the intestate, besides her dower in the houses and lands during her life; and out of all the residue of such real and personal estate, two shares, or a double portion to the eldest son or his representatives, and the remainder of such residue, to and among the other children of the intestate, or their representatives; widows' dower to be divided in like manner after her death.
By the 2lst of George the 3d, Cap. III. lands and tenements are made liable to the payment of debts in case no personal effects can be found to satisfy the same , this act allowed an equity of redemption within two years after levying such execution, but was repealed by the act of the 26th George the 3d. Cap. IX. which made lands and tenements liable to be sold in six months after they were taken in execution, without any equity of redemption; the operation of this last act was found to be so severe, that an act was passed in the 35th of George 3d. Cap. VIII. by which it is enacted that no lands or tenements hereafter to be taken in execution, shall be sold in less than two years after they shall have been so taken.
By the 21st of George the 3d. Cap. XVII. It is enacted, that all actions or suits, either in law or equity, to be sued or brought, of or for any lands, tenements, or hereditaments within the Island, shall be sued and taken within twenty years, next after the title or cause of action first descended, and at no other time after the said twenty years; and that no entry shall be made upon lands, &c. but within twenty years next after such title shall have accrued, after which such persons not entering, are utterly excluded; with the usual saving clause to infants, femme covert, persons non compos mentis, imprisoned, or beyond seas. The great and general neglect of so many of the proprietors having involved many people in great uncertainty with respect to the titles of lands, whereon very considerable exertions and expence had been laid out, the legislature were induced in 1795 to pass a law 35th Geo. 3d Cap. II. intituled an act for confirming titles and quieting possessions, by which it is enacted, that all purchasers or lessees of land, who have been in the quiet and peaceable possession of such lands for the space of seven years, and all persons claiming by, from, or under them, are confirmed in such possession according to the right, title, or interest intended to be conveyed in and by such leases or conveyances. And all deeds of sale made by the Sheriff, Coroner, &c. under writs of execution are confirmed, any want legal form in such deeds notwithstanding.
The lands sold in 1781, for non-payment of quit rent, are excepted from the operation of this act, and it is also provided that no error which may have taken place in settling the township boundaries shall be thereby confirmed.
By the 25th of George 3d. Cap. VI. It is enacted, that no greater interest than six per cent per annum shall be taken.
The severity of the criminal laws of Great Britain being unnecessary in a new country where few crimes are committed, by the 33d of George the 3d Cap. I. a new criminal code more suitable to the situation and circumstances of the country is established. By the 36th of George the 3d Cap I. a new criminal code more suitable to the situation and circumstances of the country is established. By the 36th of George the 3d Cap. III. It is enacted that all grants, deeds, and conveyances heretofore made and executed by any married woman jointly with her husband, of any lands, houses or tenement within the Island, whereof such married woman is dowable, shall be as good and valid in law, as if the same had been made by a femme sole, or if such woman had joined in levying a fine, according to the law and practice of England in that case made and provided; and it is further enacted, that all grants and conveyances which shall hereafter be made by any married woman jointly with her husband, of lands, houses, and tenements whereof she is dowable by law, or in or to which she may have any present or future interest, either in her own right, or in or by any other ways or means whatsoever, shall be as good and valid in law, and of the same force and effect, as if the same had been made by a femme sole, or as if such married woman had joined in levying a fine in manner herein-before mentioned; provided such deed or deeds, &c. shall be acknowledged by such married woman in the presence of a judge of the supreme court of the Island, or any justice of the peace thereof, by such married woman, as her free and voluntary act and deed, and to have been executed for the purposes in the said deed or deeds mentioned, and that the same was done without any force or compulsion from her husband and a certificate of such acknowledgment, the form whereof is engrossed in the act, is directed to be underwritten or indorsed on every such grant, deed, or conveyance.
The revenue laws hitherto adopted, are but two, a licence duty on retailers of wines, and spiritous liquors; and an impost or excise duty of ten pence per gallon, payable on the importation of all wines and spirits; and two pence per gallon on the importation of all porter, ale, or strong beer; these are the only taxes yet payable in the Island, also the produce of them has constituted the sole revenue by which the contingent expences of government, and the high roads and bridges have been carried on. Taxes are a subject on which the House of Representatives have hitherto been particularly tenacious, and they have yet to learn, that it is possible to err on the popular side of the question; called to the duty of legislating for their fellow subjects; without much experience or knowledge of public business, they have not observed that by giving away to much to the prejudices common on the subject, a considerable revenue, which might have been raised and applied to the public service, greatly to the advantage of the Island, has been suffered to go into the pockets of a few individuals, who have hitherto had the trade of the Island in their hands: This is an error naturally to be expected in a new country, but experience will teach us better, and all will soon be convinced that respectable revenue adequate to the wants of the public service, is absolutely necessary to the prosperity of the Island.
The only common law court yet established in the Island, is the Supreme Court of Judicature, which is a Court of King's Bench, Common Pleas, and Exchequer; the Chief Justice is appointed by warrant under His Majesty's manual and signet, under the authority of which, letters patent are made out in the Island, tested by the governor or commander in chief for the time being, and under the Great Seal of the Colony, and a salary of five hundred pounds a year is now annexed to the office: there are two assistant justices, who are appointed by the governor, and who at present serve without any salary. The departments of counsel and attorney are still united, and the number of practioners is yet only four: the proceedings in civil actions are conducted as near as circumstances will permit, agreeable to the practice in the Court of Common Pleas in Westminster Hall. An appeal in the nature of a writ of error is allowed from the supreme court to the governor or commander in chief in council, when the debt or value appealed for exceeds the sum of three hundred pounds sterling: and an appeal from the judgment or sentence of the governor or commander in chief in council, to His Majesty in Council, is allowed when the debt or value so appealed for, exceeds the sum of five hundred pounds sterling.
[Religion]
The church of England is the religion of the Island, established by law, but the free exercise of every religion is allowed: and all dissenters of whatsoever denomination they are, have free liberty of conscience; and may erect meeting houses for public worship; and may chuse and elect ministers or pastors according to their several opinions. And all contracts made between such dissenting ministers and their congregations are declared valid, and shall have their full force and effect; and all dissenters are exempted, and excused from the payment of any rates or taxes to be made or levied, for the support of the Church of England in the colony.
There is yet only one clergyman of the Church of England on the Island, who was appointed by the King, Rector of the Parish of Charlotte on the first formation of the government, and has a salary of seventy pounds a year on the annual estimate, voted by parliament for the civil establishment of the colony, for which he does duty for the whole Island, making occasional tours to the different settlements to perform divine service, and baptize the children: several applications have been made to the incorporated society for propagating the gospel in foreign parts, on behalf of the
Island, praying for the appointment of missionaries, on the same footing as they are granted to all the other colonies in North America, and though it is understood that these applications were recommended to the consideration of the society by the Bishop of Nova Scotia in the first place, and subsequently by the Earl of Buckinghamshire, when secretary of state for the colonial department, it has not thought proper to grant the favour requested; if I am well informed, the reasons on which the refusal was grounded, are, that a number of individuals of fortune in this country, who are proprietors of land in the Island, contribute nothing to the funds of the society, and that government allow the salary of military chaplain on the garrison staff of the Island, to be held as a sinecure by a person who never was in the colony, instead of conferring it on a resident clergyman: after what has been said in the preceding pages of the neglect of the proprietors in other matters, it appears hard that the conduct imputed to them on this subject, should also be injurious to the colony. The people of the Island have not been able to discover in these reasons, much concern for their spiritual welfare or any great consistency with the professed objects of that reverend and very respectable society, and they have to lament, that without any fault on their part, they are excluded from participating in the important benefits of an institution, that has been liberally extended to the neighbouring colonies of Nova Scotia and New Brunswick, and to all their fellow subjects in similar circumstances: the disappointment is the more to be regretted, that, as on the one hand, the Island is yet free of the contagion of that wisdom which affects to reject christianity, so on the other, has it escaped the visitation of that wild fanaticism which has overrun many parts of the continent, greatly to the injury and discredit of true religion, morality, and industry. And the minds of the protestant part of the inhabitants in general are in that state wherein a little aid and exertion on the subject, would go a great way towards uniting the greatest part of them in the communion of the church of England. Most of the Highlanders who settled in the Island previous to 1803, and the Accadian French, are Roman Catholics, and have two or three priests of that religion, whose reputed zeal for making proselytes has occasionally created some differences; I believe however their success in that respect has not been great, though the want of Protestant clergymen has given them advantages over weak minds.
The greatest part of the Highlanders who have recently settled in the Island, are of the church of Scotland, but have yet no clergyman of their own persuasion, though there is reason to hope that the same disinterested care and attention which induced so many of their opulent countrymen to join in bringing forward the late act for regulating emigration, will induce them also to afford some aid on this more important subject, and they are the more sanguine in their expectations, because it is known that the funds at the disposal of the General Assembly of the Church of Scotland applicable to such purposes, are in a very flourishing state, and it cannot be believed, that any little jealousy with respect to emigration will be allowed to interfere against them. The sum wanted in addition to what they can do themselves, will be but trifling, nor will it be long wanted, a few years will enable them amply to provide for a Clergyman, and also to establish a seminary of education, in the mean time, however, some assistance on both subjects would be very desirable.
We offer a number of workshops and guided tours at the Macphail Woods and it is an excellent opportunity to learn more about the natural history of Prince Edward Island. Check out the Events Calendar for more information. Web development and maintenance by Chris Martin.
