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KANE, PAUL – Volume X (1871-1880)

d. 20 Feb. 1871 at Toronto, Ont.


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PETERS, JAMES HORSFIELD, lawyer, office holder, politician, land agent, judge, agricultural improver, author, and inventor; baptized 29 March 1811 in Gagetown, N.B., son of Thomas Horsfield Peters, a lawyer and legislative councillor, and Mary Ann Sharmen; d. 20 June 1891 in Charlottetown.

The grandson of a loyalist from Long Island, N.Y., and the elder son in a family prominent around Chatham, N.B., James Horsfield Peters was educated at King’s College, Fredericton. He studied law with John Ambrose Sharman Street* of Newcastle and on 13 July 1833 became a member of the New Brunswick bar. In the following year he proceeded to London, where he spent almost three years, “part of which I was a pupil of a Special Pleader in the Temple and the remainder of the time of a Chancery Barrister.” He married Mary, eldest daughter of Samuel Cunard*, in Halifax on 2 Sept. 1837 (four years earlier James’s sister Mary had married Joseph Cunard*, a younger brother of Samuel). In 1838 Peters was admitted to the bars of Nova Scotia (1 May) and Prince Edward Island (30 June); in the same year his father-in-law and some business associates purchased a large amount of land on Prince Edward Island and made him their solicitor. On 8 September the young lawyer was appointed to the solicitor generalship of the Island, a non-salaried position, and on 23 June 1840 to the Legislative Council. A man of brilliant abilities, he played a prominent and sometimes dominating role in the deliberations of the upper house. None the less, business and professional obligations appear to have taken precedence, for he was irregular in attendance; indeed, in 1842, 1845, and 1847 he missed entire sessions.

It was as land agent for the Cunard estate that Peters rapidly became known on the Island and even entered its folklore. In 1846 he estimated that he controlled, on behalf of his father-in-law and his brother-in-law Edward Cunard, “about one sixth of the Island.” When sold to the government 20 years later, the Cunard holdings totalled 212,885 acres in 20 townships spread virtually from one end of the colony to the other. Among the qualities Peters brought to his position were exceptional training and competence as a lawyer, a keen eye for economic opportunity, meticulous attention to detail, familiarity with the wilderness and the timber trade as a result of his youth in the Miramichi region, and a serious interest in agronomy. His primary responsibilities were to collect rent and to ensure that everyone occupying land claimed by the Cunards acknowledged their ownership, or attorned, by signing a lease or an agreement to lease. The terms he usually offered were one shilling sterling annual rent per acre for 999 years, which meant perpetual tenure, providing the tenant met the terms of the lease. Payment in produce or livestock was sometimes accepted, although the value assigned could be a matter of controversy; another land agent, James Yeo*, stated in the House of Assembly in 1843 that Peters had “advertised to receive produce in payment of rent, at a price that could not be made . . . in the market.” When testifying before a committee of the assembly in 1840 Peters professed willingness to sell land to farmers, but it is unlikely that many availed themselves of the opportunity, given the minimum price of 20 shillings sterling per acre.

Over a period of years Peters established a formidable reputation as an exacting agent who could be, on occasion, peremptory, ruthless, and even vindictive. Although this image was accurate, he argued that he also adhered to a standard of fairness which included an element of generosity. In 1840 he testified that he frequently forgave large portions of arrears of rent, but “not in any case, the whole,” and on the remainder “took notes of hand for what I conceived they [the tenants] were able to pay.” In addition, Peters stated that when collecting “sterling” rents (Island currency plus a premium to bring it up to the exchange value of British currency) he followed the widespread custom, beneficial to tenants, of collecting the rent in Island currency with a one-ninth premium rather than charging the 50 per cent premium which was standard in non-rental transactions.

Yet in 1848 Peters vigorously defended in the Legislative Council the right of landlords to insist upon payment of sterling rents in British currency, which was difficult to obtain on the Island. The circumstances surrounding a petition by John Gordon, a Cunard tenant, to the assembly in the previous year suggest strongly that Peters was prepared to use this contractual right, the exercise of which was highly unusual, as a means of punishing a tenant with whom he had differed [see George Nicol Gordon*; James Douglas Gordon*]. Testimony by tenants and other witnesses before a committee of the assembly in 1843 indicated that Peters was prepared to hold tenants to the letter of their leases in other respects, and that he made frequent use of distraint proceedings, and the prospect of such, to exert maximum pressure. According to occupants of a house on Lot 21, where he met tenants for the settlement of accounts, he travelled with two pocket pistols and two larger pistols; one witness reported seeing a weapon on a table when he held these interviews. A Gaelic bard in the Murray Harbour district of southern Kings County concluded his “Complaint about America” this way:

A pity Peters wouldn’t change
and give some thought to death;
if the good one doesn’t have mercy on him
his deeds will cost him dearly. . . .
He will ultimately receive retribution.

Retribution could also come in this world. One Sunday in October 1844 Peters was staying at Cascumpec in western Prince County with a Cunard tenant, who may also have been a sub-agent. After everyone had gone to bed, a fire consumed a barn on the premises, destroying horses belonging to the tenant and Peters. The fire appears to have been the result of arson and, according to a report in the Royal Gazette “the wind was setting exactly in the direction of the Farm House which must inevitably have shared the fate of the Barn, had it not providentially shifted.” Peters was asserting the authority of the Cunard estate at a time when many Island tenants supported the Escheat movement, which advocated dispossession of proprietors for failure to fulfil the granting terms of 1767 [see William Cooper*]. The Escheators were particularly strong in Kings County, and he testified in 1840 that when legal action was required to extract rent in any of the three counties he took the cases to trial in Queens because “I question if an impartial Jury could be found in the other two Counties.” Public opinion was so hostile to the collection of rent that Peters’s activities led to major outbreaks of resistance in both Kings and Prince counties. Early in 1843 a series of circumstances in eastern Kings resulted in acts of defiance. Peters had ordered surveys of land claimed by Samuel Cunard on lots 44 and 45. Such work, a necessary part of establishing effective possession, was frequently obstructed by squatters and by anyone involved in unauthorized woodcutting. The standard lease issued by Peters reserved for the landlord all timber suitable for shipbuilding and other commercial purposes whether growing then or at any time in the future. This unusual and sweeping provision along with Peters’s systematic approach to its enforcement was particularly resented by tenants and by shipbuilders such as Joseph Pope who were accustomed to helping themselves. About the time that the surveyors were doing their work for Peters in eastern Kings a blacksmith named Martin Heaney, illegally occupying a house owned by Cunard from which he had been evicted, was persuaded to leave “quietly” with his large family. The local population reacted in an explosion of anger. In March 1843 surveying stakes were pulled up, “a large mob” went looking for a surveyor and his instruments, and on 17 March Heaney was forcibly reinstated in his former residence by a crowd estimated at 200. A week later the house of a sub-agent of Peters was burned to the ground in an apparent act of incendiarism. The lieutenant governor, Sir Henry Vere Huntley*, with the concurrence of the Executive Council, responded by sending 50 soldiers and 30 constables to eastern Kings to restore order. According to Huntley, news of the soldiers’ approach caused “a large body of the people” to turn their sleighs around and abandon a march on Charlottetown, which they had undertaken with the intent of “overawing” the tory majority in the assembly. The resentment caused by the use of soldiers had serious repercussions, eventually leading to the permanent departure from the Island of John McDonald*, a native-born Roman Catholic priest, himself a landlord and agent, who had given the troops accommodation.

In 1844 Peters encountered major problems at the other end of the Island, in western Prince. For many years ownership of Lot 1 had been disputed, but in 1841 Edward Cunard and the Palmer family agreed to divide it equally. Given its uncertain title and isolation, at the northwestern extremity of the colony, the farmers there, who included many Acadians, had become accustomed to paying no rent. According to testimony before the land commission of 1860, Peters and Edward Palmer*, a lawyer and prominent conservative member of the assembly, persuaded most occupiers of land early in 1843 to attorn and to accept the usual terms offered by the Cunards; arrears were to be calculated from 1841. Within a year it was apparent that many tenants in the area, one of the poorest on the Island, would be unable to meet their obligations. In the first half of 1844, according to contemporary sources, organized physical resistance to rent collection and distraint proceedings was on a scale approaching insurrection. Yet the government, with a caution perhaps owing something to the continuing controversy in eastern Kings, did not send troops, and the resistance eventually died away, with rent collection apparently being resumed in subsequent years. No doubt it was incidents like those of 1843 and 1844, as well as the magnitude of the Cunard family operations and the political atmosphere of Peters’s early years in the colony, which led to his name becoming a symbol of the exactions of the proprietary system. But he believed the invective directed against him to be unfair. In 1843 he estimated that he had given up £5,000 in arrears on Samuel Cunard’s estate, and although he conceded that “there are many, whose all would not pay their arrears,” in his opinion “the greater portion . . . were occasioned, not because the people were not able to pay, but because they had listened to those who told them not to pay, and they would get their lands escheated.”

Criticism of Peters in these years frequently centred on his combination of public office and commitment to the private interests of the Island’s largest estate. A majority in the assembly petitioned the throne in 1846 for his removal as solicitor general on the grounds that his role as a land agent was “incompatible with the right discharge of his duty as a law Officer of the Crown,” given that “the interests of his employers . . . set him in opposition to the rights of the Crown, and the interests of the people.” In a letter requested by Huntley, who was also under attack, Peters replied that he behaved precisely as the proprietors would if they were to reside in the colony, managing their lands “as if they were my own.” He felt, as a consequence, “much interested in the prosperity of the Island,” and could not understand why this outlook rendered him unfit to be solicitor general. To his way of thinking, the question could then be reduced to whether he had neglected his duties as a law officer, and in his defence he pointed out that no specific instance of neglect had been cited. He did not mention that on at least one occasion he had applied for and obtained permission from Huntley “to lay aside, for a time, his obligation to the cases of the Government, in order that he might defend those clients for whom . . . he acted as Land Agent.” Peters retained his office, and by his own lights there was no reason for him to give it up. Nevertheless, in the upper house he did speak as a staunch defender of the prerogatives of property and an advocate of caution and delay in discussion of popular rights. In 1848 a committee he chaired concerning a tenants’ compensation bill passed by the assembly in the previous year delivered a discursive report emphasizing the complexity of the issue, denying any inherent conflict of interest between landlord and tenant, and recommending that no action be taken until the imperial parliament had moved. Island tenants would have to wait until the early 1870s for protective legislation.

Peters ceased to be land agent for the Cunards, solicitor general, and a legislative councillor on 29 Sept. 1848 when he was sworn in as assistant judge of the Supreme Court under Chief Justice Edward James Jarvis* and master of the rolls for the Court of Chancery. Peters occupied this dual position, for which he was particularly well qualified given his training in both common law and equity, until his retirement on 15 April 1891. In addition to being the longest-serving judge in Island history, he displayed outstanding competence as a jurist. There is considerable surviving evidence about the quality of his decisions and the high regard local practitioners had for them. In 1872, in an era when it was most unusual to publish the case reports of one judge only, Thomas Heath Haviland brought out a volume documenting 70 cases Peters had determined since 1850. Similarly, an extensive collection of Island case reports published by two other local lawyers in 1885–86 contained a large number which Peters had written. In cases involving significant points of law his judgements were fully and lucidly argued, with an intelligent use of English authorities that indicated a good grasp of common law principles. When interpreting legislation he would go to considerable lengths to avoid giving a construction resulting in an “injustice” which he believed the common law prevented. But beyond his commitment to common law protections, a narrowly legal argument involving a literal, mechanical, or capricious approach to statutes or situations would not prevail in his court if it offended against either his understanding of common law principles or his evident desire “to meet the ends of substantial justice.”

Perhaps the most interesting of Peters’s reported decisions are those with political content, for in them he displayed remarkable sensitivity to “civil liberties” issues. In The Queen v. James Gorveatt and others (1866) Peters quashed an indictment for conspiracy, riot, and unlawful assembly arising out of Tenant League disturbances because the grand jury handing it down included the land agent who had directed the issuing of the writs leading to the confrontation. The decision contains a strong, stirring statement on the need for undoubted impartiality on the part of all grand jurors. In a decision concerning an allegation of partiality in selecting a panel of 48 prospective special jurors for a libel suit brought by Duncan Maclean* against rival editor Edward Whelan* (1856), Peters began by disposing of the easy answer offered by the standard authority of the day. He recognized that he was dealing with “a political case” – quite an admission for a 19th-century jurist – and ordered that a new panel be returned under his precise directions. His finding sustained the arguments of the tory Maclean, but in The Queen v. Whelan (1863), a case involving an alleged criminal libel, Peters ruled for the liberal Whelan against William Henry Pope*, Maclean’s successor as editor of the conservative Islander newspaper.

Another aspect of Peters’s career as a jurist appears to have made a deeper impression on the public at large than his regard for the rights of the accused. This was his reputation for handing down severe sentences, which was reflected in an anecdote in The master’s wife, Sir Andrew Macphail*’s memoir about growing up in late 19th-century Prince Edward Island. “Judge Peters” is said to have sentenced two “bad boys” to death for breaking and entering and stealing three balls of twine, with the sentence being commuted to 25 years in prison by a more merciful higher authority. This image of severity was reinforced by Peters’s handling of certain cases resulting from Tenant League riots in 1865. His sentencing of three Tenant Leaguers convicted of common assault and, in one case, assault on constables, to between one and two years in prison and between £20 and £50 in fines was widely regarded as excessive, if not perverse, and it provoked public discussion over many years. The popular perception of Peters as a harsh judge, no doubt bolstered by recollections of his earlier career as a land agent, may have been a factor in his being passed over for promotion to chief justice three times (in 1852, 1874, and 1889) in favour of candidates with little or no experience on the bench. As early as 1852 he had been absolutely convinced that he deserved “the highest honor of my profession” on grounds of legal eminence, in preference to the rival candidate, Robert Hodgson*.

Perhaps in part because of his experiences as land agent, Peters vigorously promoted agricultural improvement. He maintained a farm which was mentioned in the assembly in 1871, by Benjamin Davies, a former Escheator and unrepentant radical, as a model in terms of cultivation and livestock breeding. He participated in farm organizations based in Charlottetown and various rural districts, as patron, president, lecturer, competitor, or donor of prizes, and on at least one occasion he even spoke from the bench on agricultural themes. In 1851 he published a manual, Hints to the farmers of Prince Edward Island, widely circulated in the colony, which advocated crop rotation adapted to local conditions and turnip culture. These activities establish him as the closest Island counterpart to the famed Nova Scotian improver Agricola [John Young*], whose work influenced him.

Peters made a valuable contribution in another area of permanent concern to Islanders: winter communication with the mainland. People wishing to cross Northumberland Strait were unable to use conventional boats, because the ice was too thick, or to journey on foot, because it was frequently also too broken and unstable. The response was the iceboat, a wooden craft fitted with runners which could be used as a sled on snow and ice or as a boat on open stretches of water. Peters, who often made the trip in winter during his early years on the Island, had a close brush with death in the mid 1840s when attempting to cross to Nova Scotia. The weather being stormy and the craft appearing inadequate, he turned back; the crew, who continued, perished. Likely prompted by the loss of life, Peters designed and superintended the construction of an improved version of the iceboat, lighter, reinforced by tin on the outside, and equipped with two iron-shod runners parallel to the keel. Its harness of straps and ropes served both to help the crew pull the craft across ice and to facilitate the rescue of crewmen suddenly plunged into fast-flowing icy water. The Peters boat continued in use with no significant change until 1917.

Extraordinarily able in his chosen profession of law, James Horsfield Peters enjoyed an uncommonly broad range of achievement. Nevertheless, although few ever questioned his abilities, he was under a cloud throughout his long career, which touched Prince Edward Islanders intimately in many ways. He shared in the general unpopularity of land agents, and it seems that he never fully lived down the initial impression he created when, armed with two brace of pistols and an aura of public authority derived from his position as solicitor general, he established himself as the most important agent of his era and possibly in the entire history of the land question. A figure almost larger than life, with a manner that conveyed competence, determination, and a willingness to create examples pour encourager les autres, his activities on behalf of the Cunards provoked incendiarism, protests, inquiries by committees of the assembly, and public disorder. Given his notoriety as a “hard” land agent, the public was probably inclined to believe the worst about him in his almost 43 years on the bench. Hence his severity as land agent and judge became part of Island folklore. Other aspects of his life’s work which might have been expected to win popular approval, such as his concern as a jurist for the rights of the accused, his contributions towards agricultural improvement, and his design of a better and safer iceboat, seem to have made less impact. He was survived by two daughters and three sons, who inherited most of his considerable estate, comprising money, real property, and investments. Two sons, both lawyers, enjoyed some of the public acclaim denied their father: they became Liberal premiers of the Island, Frederick from 1891 to 1897, and Arthur* from 1901 to 1908.

Ian Ross Robertson

[The author is indebted to J. A. H. (Pete) Paton of Charlottetown for granting him access to a collection of Peters family papers in his possession, and to Michael J. W. Finley for his commentary on the quality of James Horsfield Peters’s written legal judgements.  i.r.r.]

Peters is the author of Hints to the farmers of Prince Edward Island; printed for the Royal Agriculture Society (2nd ed., Charlottetown, 1851).

N.B. Museum, Jarvis family papers, E. J. Jarvis to R. F. Hazen, 2 Aug. 1843; Tilley family papers, box 6, packet 2, nos.18, 20 (photocopies at PAPEI). PANB, MC 223, St John’s Church (Gagetown, N.B.), reg. of baptisms, 29 March 1811. PANS, MG 2, 724, esp. nos.87, 95–97, 98a, 101, 107a, 109, 115. PAPEI, RG 5, minutes, 3 Nov. 1863; RG 6, Supreme Court, barristers’ roll; minutes, 12–24 Jan. 1866; RG 15, land title docs., Lot 1, lease 139; Lot 4, lease 121; Lot 64, leases 99, 107; RG 16, land registry records, conveyance reg., liber 46: f.476; liber 49: f.370; liber 54: f.176; RG 17, J. H. Peters to the boundary commissioners, 17 Aug. 1839; boundary commissioners’ minute-book, 1835–49, entries for 18, 29, 31 Jan. 1840. PRO, CO 226/55: 503; 226/58: 203; 226/65: 86–91, 93, 131–50, 215–22, 236–43; 226/66: 84–88, 121–22, 135–38, 279–90; 226/69: 152–82, 205, 218–21; 226/71: 76; 226/73: 278–81; 226/74: 317–408; 226/75: 334; 226/80: 179–86, 623–28 (mfm. at PAPEI). Supreme Court of Prince Edward Island (Charlottetown), Estates Division, liber 13: ff.3–13. Warwickshire County Record Office (Warwick, Eng.), CR 114A/565 (Seymour of Ragley papers), memorandum, [J. H.] Peters et al., 12–13 Sept. 1840. West Sussex Record Office (Chichester, Eng.), Goodwood Arch., ms 377: f.583. Abstract of the proceedings before the Land Commissioners’ Court, held during the summer of 1860, to inquire into the differences relative to the rights of landowners and tenants in Prince Edward Island, reporters J. D. Gordon and David Laird (Charlottetown, 1862), 39–41, 45, 49–52, 63, 66, 72, 75, 126, 150, 152, 154, 207. “Complaint about America,” in The emigrant experience: songs of Highland emigrants in North America, ed. and trans. Margaret MacDonell (Toronto, 1982), 118–25. P.E.I., House of Assembly, Debates and proc., 1871: 248; 1874: 270–71, 394; 1875: 145; 1876: 64–65; Journal, 1840: 127–28; app.P; 1841, app.S; 1843: 77, 101, 126, 129–30; app.O: 110, 117; app.P; 1844: 63–64; app.Q; 1846: 114–16; 1847: 58: 1875, app.E; Legislative Council, Debates and proc., 1865: 67; 1871: 36; Journal, 1840: 51; 1841–48, esp. 1848: 47–49. Reports of cases determined in the Supreme Court, Court of Chancery, and Vice Admiralty Court of Prince Edward Island . . . [1850–82], comp. F. L. Haszard and A. B. Warburton (2v., Charlottetown, 1885–86). Reports of cases determined in the Supreme Court, Court of Chancery, and Court of Vice Admiralty of Prince Edward Island, from . . . 1850 to . . . 1872, by James Horsfield Peters . . . , comp. T. H. Haviland (Charlottetown, 1872). Charlottetown Herald, 24, 31 Jan., 8 Aug. 1866; 24 June 1891. Daily Examiner (Charlottetown), 9 Feb. 1885; 10 April, 20 June 1891. Daily Patriot (Charlottetown), 19 [i.e. 20] June 1891. Examiner (Charlottetown), 17 April 1854; 19 Jan. 1857; 22, 29 Jan. 1866; 3, 10 Aug. 1874. Haszard’s Gazette (Charlottetown), 3 Feb. 1852. Island Argus (Charlottetown), 28 July 1874. Islander, 21 June, 18 Oct., 1 Nov. 1844; 18 Oct. 1845; 7 March 1846; 29 Sept., 4, 10 Nov. 1848; 3, 17 Jan., 4 April 1851; 5 March, 11 June 1852; 1 April, 23 Dec. 1853; 23 Feb., 2 March 1855; 16, 30 Jan., 6, 13 Feb. 1857; 28 Jan., 4 Feb. 1859; 11 May 1860; 2, 16 Feb., 2, 16 March, 6 July, 17, 31 Aug. 1866. Journal (Summerside, P.E.I.), 8 Feb. 1866, 25 June 1891. Morning News (Charlottetown), 11 Jan. 1845. Palladium (Charlottetown), 20 June, 19, 24 Oct. 1844. Patriot (Charlottetown), 24 June 1880. Pearl (Halifax), 9 Sept. 1837. Pioneer (Summerside), 17 June 1884. Royal Gazette (Charlottetown), 7 April 1840; 2 Feb., 4 May, 3 Aug. 1841; 17 Jan., 7, 21, 28 March, 11, 25 April (supp.), 2 May, 13 June 1843; 26 March, 15 Oct. 1844; 1 April 1845; 19 May, 1 Sept. 1846; 17 Aug. 1847; 4, 11, 25, 27 April (extra), 9 May, 10 Oct. 1848; 20 March, 15, 25 May (extra), 12 June 1849; 12, 19 Feb., 12, 19 March 1850; 17 June, 15 Dec. 1851; 29 Jan. 1852 (extra); 7, 9 March (supp.) 1853. Semi-Weekly Patriot (Charlottetown), 6 Aug. 1874. Vindicator (Charlottetown), 27 July 1864. Weekly Examiner and Island Argus, 26 June 1891. Canadian men and women of the time (Morgan; 1912), entry for Frederick Peters. Dominion annual reg., 1885. A Peters lineage: five generations of the descendants of Dr. Charles Peters, of Hempstead, comp. M. B. Flint ([Poughkeepsie, N.Y., 1896]), 30–31, 45–46. Political appointments and judicial bench (N.-O. Coté). [An exhaustive review of the sources has not turned up any evidence to support the date Coté gives for Peters’s becoming a judge.  i.r.r.] W. L. Cotton, Chapters in our Island story (Charlottetown, 1927), 101–8. Alice Green, Footprints on the sands of time: a history of Alberton (Summerside, 1980), 144. Andrew Macphail, The master’s wife (Montreal, 1939; repr. Toronto, 1977), 51, 72.

General Bibliography

Cite This Article

Ian Ross Robertson, “PETERS, JAMES HORSFIELD,” in Dictionary of Canadian Biography, vol. 12, University of Toronto/Université Laval, 2003–, accessed February 20, 2024, http://www.biographi.ca/en/bio/peters_james_horsfield_12E.html.

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Permalink:   http://www.biographi.ca/en/bio/peters_james_horsfield_12E.html
Author of Article:   Ian Ross Robertson
Publication Name:   Dictionary of Canadian Biography, vol. 12
Publisher:   University of Toronto/Université Laval
Year of publication:   1990
Year of revision:   1990
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