Postal conditions in Upper Canada--Serious abuses--Agitation
for provincial control.
To those who have followed the course of events thus far, noting the
uncompromising attitude of the general post office towards all
propositions for the extension of the postal system in Canada, it will
be obvious that a struggle for the means of communication impended,
which the rapid growth of the country was fast precipitating.
The general post office claimed that it, and it alone, had power to
establish a postal service in any part of the country, and it used its
arrogated powers in the same manner as any commercial monopoly would be
exercised. Post offices were opened in all the better settled parts of
the country, where they could be operated profitably. They were refused
in the newer districts, unless satisfactory guarantees were given that
there would be no loss in working them.
A population was coming into the country rapidly, and was tending
towards the inland parts of the province far from the line of post
offices which skirted the shores of the St. Lawrence and lake Ontario,
and the situation was becoming embarrassing, as well as humiliating to
the sensitive pride of the people.
It was easy enough to open post offices on the route pursued by the mail
courier from the eastern boundary of the province to Niagara. But it was
frequently expensive to open new routes, and the provincial government
of Upper Canada was disinclined to give guarantees against loss on
particular routes, while it had evidence that considerable profits were
being taken from the older routes, and sent to the general post office
in London.
Just how acute the position of matters was becoming will be clear from a
survey of the distribution of population in Upper Canada at this time,
with a view of the post offices provided for the accommodation of the
several parts. We are able to throw out our sketch of the state of
settlement in Upper Canada, by employing the results of the census of
1824.
The total population of the province in 1824 was 149,941, of whom 63,000
were in the western district, that is, west of York. Between the eastern
boundary of the province and York, there were twenty-six post offices.
Four of these--Perth, Lanark, Richmond and Hawkesbury--served inland
settlements, the nearest of which was over twenty-five miles from the
St. Lawrence. The line of settlements which these four offices served
was scattered over a territory over one hundred miles in length, and
from twenty to thirty in width. It comprised a population of 12,476.
The remaining twenty-two offices, east of York, were, with one
exception, situated on the shores of the river St. Lawrence and lake
Ontario. Each afforded accommodation to a district about fourteen miles
in length, and between twenty and thirty miles in depth. The mails were
carried twice a week over this route. These arrangements gave a fair
service to the settlements through which the couriers passed, but they
compared meanly with the daily service from New York to Buffalo, on the
other side of lake Ontario.
But it was the inland settlements west of York that had most reason to
complain of the lack of facilities for communication. The Niagara
peninsula, embracing the territory between lake Ontario and lake Erie,
and lying west of a line dropped perpendicularly from Hamilton to lake
Erie, contained a population of 20,000, distributed with fair evenness
over a stretch of country forty-five miles in length, and from
twenty-five to thirty in breadth.
The people of this district were served by four offices on its northern
border--Dundas, Grimsby, St. Catherines and Niagara--and one
office--Queenstown--on its eastern border. Although there were
settlements in every part of the district, there was not a single post
office within it on the lake Erie shore, or, indeed, anywhere farther
inland than three miles from the shore of lake Ontario, or of the
Niagara river.
Poorly provided as the Niagara district was, the people living in it had
less ground for grievance in respect of post office facilities than the
settlers in the London district. This district was an immense irregular
block made up of the counties of Middlesex, Oxford, Brant, Norfolk and
Elgin. It measured eighty miles in length, and from forty to fifty miles
in depth. It contained in 1824 a population of 16,588, which, as in the
other districts, was distributed through every part.
This great district had but five post offices in it, one in each county.
The two offices on the lake Erie shore--Vittoria and Port Talbot--were
sixty miles apart; while the three offices--Burford, Woodstock and
Delaware--were twenty miles from lake Erie.
As illustrating the difficulty of moving the general post office to
recognize the responsibility, which its claims of a monopoly seemed to
impose on it, Dr. Rolph, who represented the county of Middlesex in the
house of assembly, stated[190] that before the post office was opened at
Delaware, he had made application to the deputy postmaster general for a
post office in Middlesex county, and was told that the office would be
established in the county if he would guarantee the expenses of the
conveyance of the mails, but that his application could not be
considered on any other terms.
As individual effort was plainly hopeless, the subject was taken up by
the house of assembly of Upper Canada. The house dealt with the question
vigorously, but not on the lines suggested by the foregoing review of
the state of the postal service. More serious aspects of the case
engaged their attention. Men on the streets and in farm houses believed
that they were victims of imposition on the part of the deputy
postmaster general, and that he was charging them more for the
conveyance of their letters than the imperial statutes warranted, high
as the legitimate charges were.
Discussion on these grievances brought the people forward to another
point, and they asked themselves by what right the British government
imposed on a self-governing community an institution like the post
office, which not only fixed its charges without reference to the people
of Upper Canada, but which insisted on preventing the people from
establishing an institution of the same sort under their own authority.
It was to these questions that the house of assembly addressed itself.
The rates of postage which were charged in Canada, were collected under
the authority of an act of the imperial parliament passed in 1765. This
act amended the act of Queen Anne's reign, which was regarded as the
charter of the post office in British America.
The rates, as fixed by the act of 1765, were, for a single sheet of
paper weighing less than an ounce, fourpence-halfpenny currency, if the
distance the letter was carried did not exceed sixty miles; if the
distance were from sixty to one hundred miles, the charge was
sevenpence; from one hundred to two hundred miles, ninepence, and for
every one hundred miles beyond two hundred miles, twopence.
The first inquiry of the house was as to whether these rates, and no
more, were charged for conveyance in Upper Canada. On February 29, 1820,
William Allan, postmaster of York, was called to the bar of the house,
and questioned as to the rates charged by him for letters to the several
post offices in Upper Canada.
Allan did not know the distance to the post offices, but he furnished
the table of rates which had been given to him. The house asked one of
its members, Mahlon Burwell, a land surveyor, to state the several
distances, when it appeared that every rate charged by the postmaster of
York, was higher than the imperial act warranted.[191]
Thus the legal charge on a letter to Dundas was fourpence-halfpenny. The
charge made by the postmaster of York was sevenpence. On letters to
Grimsby, St. Catharines, Niagara and Queenston, the legal charge was
sevenpence--Allan charged tenpence. Amherstburg, which was at the
western limit of the province, was between two hundred and three hundred
miles from York, and the charge should have been elevenpence. Instead of
this sixteen pence was charged.
So far the house had made out its case, and on the following day it
adopted a resolution that for several years past the rates of postage
charged in Upper Canada had exceeded the charges authorized by law, and
that the lieutenant governor should be requested to submit the question
to the imperial authorities for a remedy.
Peregrine Maitland, the lieutenant governor, did as he was requested,
and, when the resolution came before the postmaster general in England,
Freeling, the secretary of the general post office, admitted, in
reply[192] to the postmaster general's request for information, that the
rates in British North America were regulated by the imperial act of
1765, but he held that there were other circumstances to be considered.
Freeling did not know whether the ordinary rates would produce
sufficient revenue to cover the expenses of the service. If not, then he
would refer the postmaster general to a letter written by General
Hunter, the lieutenant governor in 1800, which contained an undertaking
on the part of the lieutenant governor that, in case there was a
deficit, the amount of the shortage would be made good either from the
contingencies of the province, or by a vote of the legislature. Freeling
would call upon the deputy postmaster general in Canada to report
whether the legal postage would be equal to the expense. If so, there
was no reason to require the province to grant any aid.
This explanation, like so many which had to be made at that period,
lacked the essential element of sincerity. Hunter's engagement was to
make good deficits, not by allowing illegal postal charges to be made,
but by withdrawing the amount of the deficit from the provincial
treasury. This was a point on which Freeling himself insisted on several
occasions.
In Sir Gordon Drummond's time, there was an application from the
military authorities for a more frequent service between Kingston and
Montreal, which was coupled with an offer to pay such extra postage as
would be necessary to cover the cost of the service desired. Freeling
declared that such an offer could not be accepted, unless the additional
charges were sanctioned by the British parliament.[193]
Another case, involving the same principle, arose about this time.
Sutherland, the deputy postmaster general, desired to facilitate the
interchange of correspondence with the United States, and reported to
the postmaster general that he had arranged to have the American postage
on letters coming from the United States to Canada collected by
postmasters in Canada, at the same time as they collected the Canadian
postage. Freeling objected to this arrangement as of doubtful legality,
on the ground that the act of 1765 prescribed the amount which
postmasters should take on every letter, and it might be necessary to
amend the act to permit this scheme.[194]
The house of assembly, however, did not wait for the answer to their
remonstrance. In the following session they gave themselves up to the
consideration of the more vital questions, as to "how far the present
system is sanctioned by law, and whether and in what manner the same can
be beneficially altered." This was not the first occasion on which the
right of the British post office to collect postage in Canada was called
in question.
Governor Simcoe, in 1791,[195] assumed it as indisputable that, when a
postal system was established in Upper Canada, it would be under the
control of the legislature, unless the British government by express
enactment, retained the management of it in the hands of the British
post office, paying over to the local government all surplus revenues
arising therefrom. The question was not decided at that time, and it was
only when the course pursued by the general post office was so
unsatisfactory to Canadians that it was again raised.
A committee was appointed in 1821, to investigate the subject with Dr.
W. W. Baldwin as chairman. On December 10 the report was laid before the
assembly.[196] The committee had little help from the post office in
pursuit of its inquiries. The only official available, the postmaster of
York, was examined, but whether from unwillingness or want of knowledge,
he contributed little information to the inquiry.
Allan stated that he was appointed by the deputy postmaster general
under his hand and seal. He occasionally received instructions from the
deputy postmaster general, but had no idea as to the authority under
which the latter acted. He had never been referred to any particular
statute for his guidance, and, indeed, the postage on letters within the
province had been charged at arbitrary rates, which were fixed by the
deputy postmaster general.
Some valuable information respecting the revenue of his office was
submitted by Allan, which completely disproved the intimation of the
secretary of the general post office, that the offices in that part of
the country were conducted at a loss. The post office at York yielded an
annual revenue of between L800 and L900, which was remitted to the
deputy postmaster general at Quebec.
The committee found it impracticable to call the postmasters of the more
distant offices, but having regard to all the circumstances, they were
satisfied that there was remitted each year to the deputy postmaster
general at Quebec an amount exceeding L2500, of which perhaps ten per
cent. or eleven per cent. was foreign postage collected in Canada, and,
therefore, due to Great Britain or the United States.
Next the committee addressed themselves to the question as to how this
surplus was disposed of, which, after deducting the amount owing to the
other postal administrations was probably more than L2000. Allan
believed, though he was unable to give it as a fact, that the money was
passed over to London. What was beyond doubt, however, was that this
revenue in no way inured to the benefit of Upper Canada.
Assuming, as the committee felt they might safely do, that the surplus
from Canada was made part of the revenue of the general post office in
London, the committee then sought to ascertain how the revenue of the
general post office was dealt with, and whether any part of it was
employed for the benefit of the colonies.
The post office acts of 1710[197] and 1801[198] made this point clear.
It appeared that after certain deductions had been made for pensions,
the revenue of the post office was applied in various specified ways to
the service of Great Britain, the postal rates being avowedly levied for
raising the necessary supplies, and for making a permanent addition to
the public revenue. The committee could find no instance in which any
part of the post office revenues was devoted to the use of the colonies.
Taking it, then, as established that a sum exceeding L2000 was raised
each year in Upper Canada as profit from its post office, and that this
sum was applied, not for the benefit of Upper Canada, but for the
purposes of the public service in Great Britain, the committee next
turned its attention to the laws bearing on the situation.
There was an act passed in 1778[199] in the hope of staying the rising
rebellion in the American colonies entitled "an act for removing all
doubts and apprehensions concerning taxation by the parliament of Great
Britain in any of the colonies and plantations in North America and the
West Indies." It declared that the king and parliament would not impose
any duty, tax or assessment whatever, payable in any of the colonies in
North America or the West Indies, except any such duties as it might be
expedient to impose for the regulation of commerce.
But although the collection of such duties should be made by officials
of the British government, it was not intended that the proceeds should
go into the British treasury; for it was provided that the net produce
from them should be paid over to the colony in which they were levied,
to form part of the general revenue of such colony. This seems
sufficiently explicit, but that there might be no doubt as to the
applicability of the provisions of this act to the provinces of Canada,
they were expressly incorporated in the constitutional act of 1791,
which was the charter under which the provinces of Upper and Lower
Canada were established.
As in the act of 1778, there was reserved to the British parliament, in
the general interest of the empire, the power to make laws for the
regulation of commerce, but there was also the same stipulation that the
proceeds from such laws should be applied to the use of the province in
which the taxes were levied, and in any manner the legislature of the
province might think fit.
Applying the acts of 1778 and 1791 to the circumstances of the case in
hand, the committee were of opinion that the collection of postage could
not be regarded as a regulation of commerce, and as such within the
scope of imperial legislation.
But even if it should appear that they were wrong in this opinion, and
that the British government had the power to set up a post office in
Upper Canada with the exclusive right to carry letters within the
province, there was one thing the British government could not properly
do. While the constitutional act of 1791 remained unrepealed, the
British government could not take the net produce from the post office
in Upper Canada, and use it as part of the general revenue of Great
Britain.
Having satisfied themselves that, however strong the grounds might be on
which the postmaster general of England had proceeded in establishing a
post office in Canada, they could not prevail against the acts which
have been considered, the committee next gave their attention to
inquiring what those grounds might be, and how far they would bear out
the pretensions of the postmaster general.
The two acts, which it seemed to the committee the postmaster general
would most likely depend upon, were the acts of 1710 and of 1801. The
act of 1710, which was the charter for the post office in British
America, was dismissed from consideration as not even by its own
provisions applying to the colony of Canada, and as annulled so far as
concerned any of the colonies by the act of 1778, and as regards Canada
by the constitutional act of 1791.
The second of the two acts--that of 1801--repealed all the rates of
postage enacted by the act of 1710, and fixed new rates for Great
Britain, but made no mention of new colonial rates. Hence, since 1801,
there had been no colonial postage rates having the sanction of law, and
the committee concluded that the colonies were designedly omitted, when
the rates for Great Britain were fixed by the act of 1801, for the
reason that the act of 1778 supervened, which made it illegal for the
British parliament to impose a tax on a colony for the financial benefit
of Great Britain.
The committee admitted that it was a matter for argument whether the
unrepealed parts of the act of 1710 might not be held applicable to
Canada, but conceding the whole argument on this point, the utmost power
remaining in the act was to authorize the establishment of a postal
system in Canada. All power to fix the postal charges was taken away by
the act of 1801.
As for the act of 1801, which established a scale of rates, by no
liberality of construction could it be made to apply to Canada, because
the act of 1778 was against it, and the constitutional act of 1791 was
against it, and the fact that the revenues to be raised by the act were
to be appropriated to the purposes of the United Kingdom made it illegal
for the postmaster general to enforce it in the province.
There were other acts passed by the imperial parliament affecting the
postage rates, but an examination of these disclosed no intention to
make the acts operative in the colonies. Rates were fixed for conveyance
in the United Kingdom, and to and from the colonies in America, but
nothing was said as to the rates within the colonies. It was quite clear
to the committee, therefore, that the only acts, which by any
possibility could be made applicable to the colonies, were inoperative
in the Canadas.
The committee clinched the argument by a survey of the laws passed by
the British parliament, levying taxes on the colonies. They showed that
whenever such taxes were imposed, the proceeds were never applied to the
purposes of the United Kingdom, but always to the use of the colony
concerned. There was an act passed in 1764 imposing duties on the sugar
plantations. The revenue was devoted to the protection of their trade.
The Quebec revenue act of 1774[200] was the other case. This act imposed
duties on rum, brandy, and other liquors coming into the province, and
employed the proceeds for the establishment of a fund to aid in
defraying the charges of the administration of justice and of the civil
government in the province of Quebec. It was clear, then, that the acts
of 1778 and 1791 contained no new principle, but were simply declaratory
of the steady policy of the British government as disclosed by a review
of its earlier practice; and everything combined to satisfy the
committee that the legislature of the mother country never contemplated
the raising of a tax by inland postage in the colony of Upper Canada.
The committee concluded by submitting for the acceptance of the house a
resolution to the effect that the present system of public posts for the
conveyance of letters within the province had grown into use without the
sanction of law, and that a bill should be introduced establishing
public posts and fixing the rates of postage on letters and packets for
the purpose of raising a permanent revenue, applicable solely to the
improvement of the roads throughout the province.
The proposition of the assembly was thoroughly conservative. It was
simply that the profits from the post office should be devoted to
improving the means by which the post office was carried on. Settlements
were springing up in all parts of the province which reason and policy
made it necessary to connect with the more central districts, and it was
only proper that the profits arising from the system should be used for
improving and extending it.
At this period and for a long time afterwards the roads throughout the
province were in a wretched condition. One of the principal mail
contractors informed a committee of the house in 1829, that all the main
roads in the province were very bad, and that those in the neighbourhood
of York were bringing discredit on the inhabitants. The deputy
postmaster general informed the same committee that he had just been
advised that the contractors on the road from Montreal to Niagara had to
swim their horses over some of the rivers on the route, the bridges
having been carried away.
Peregrine Maitland, the lieutenant governor of Upper Canada, forwarded
the report of the committee of 1821 to the colonial office, with a
letter in which he explained that what the legislature desired was to
have the control of the provincial posts vested in them, or at least to
have a deputy postmaster general for Upper Canada. With the latter
request he fully sympathised, as he was convinced that a deputy
postmaster general residing in Quebec could not possibly appreciate the
requirements of the rapidly rising communities, situated so far from his
headquarters.
The lieutenant governor shared the opinion of the legislature that it
was contrary to the acts of 1778 and 1791 to send remittances from
Canada to England, but he did not believe that the legislature would
have concerned themselves with the subject, if the post office
authorities had provided a satisfactory service.
At the general post office in London the report was turned over to the
solicitor with directions to prepare a case for submission to the law
officers of the crown. The law officers were requested to give their
opinion as to whether the postmaster general of the United Kingdom had
the right to control and manage the internal posts in the provinces of
North America, and, if so, whether the proceeds derived from the inland
conveyance of letters in North America ought to be paid into the
exchequer of the United Kingdom or whether they ought to be applied to
the use of the province from which they were taken.
But the case as prepared did not reach the law officers. The postmaster
general had the good sense to see that his case was precarious, and he
did not care to risk an adverse decision.
Freeling, accordingly, wrote to Maitland,[201] admitting that the postal
transactions of Upper and Lower Canada together showed a small surplus,
but he inclined to the view that the share of Upper Canada in the
surplus must be very small. A number of post offices had been opened in
Upper Canada and the impression in the general post office was that they
were unprofitable.
If, as Maitland had intimated, the wishes of Upper Canada would be
satisfied by the appointment of a separate deputy postmaster general for
Upper Canada, the postmaster general, Freeling informed the governor,
would make no difficulty on the point, but would naturally select for
the position one of the more experienced officers such as the postmaster
of York or of Kingston.
In the meantime, while the report of 1821 was being discussed by the
secretary of the post office and the lieutenant governor, the members of
the assembly were endeavouring to procure further information to
strengthen the position they had taken. They desired to learn definitely
the amount which was sent to London as postal revenue. The postmaster of
York could tell them little beyond the transactions of his own office,
but the contribution from that office made it clear that the revenue
from the whole province must be considerable.
No information could be obtained by direct inquiry of the deputy
postmaster general, but it was thought that the post office would not
refuse to answer a question on the subject asked by a member of
parliament.
A question was accordingly put in the house of commons in 1822, but
Freeling informed the representative of the post office[202] in the
house of commons that the information should not be given, as the
provinces were manifesting a disposition to interfere with the internal
posts, and to appropriate their revenues to their own purposes, instead
of allowing them to flow into the exchequer of the United Kingdom. The
maintenance of the packet service, he declared to be of the greatest
political importance, as ensuring despatches against passing through
foreign hands.
The course pursued by the post office under the influence of Freeling
was in no way creditable to it. At a time when it was making grudging
admissions that there was a small profit from the Canadian post offices,
there was being sent over to London from the two provinces a sum
exceeding L6000 a year, an amount which, wisely spent, would have been a
considerable contribution to the road fund of the provinces.
The packet, the importance of which Freeling emphasized, was scarcely of
any utility to the people of the Canadas. The service by the packets was
so slow and expensive that it was not employed at all for commercial or
social correspondence, the merchants in London and Liverpool using
exclusively the lines of sailing vessels running between Liverpool and
New York. But Freeling was obstinate and often disingenuous in
maintaining his view that it was proper that the surplus revenues from
the provincial post offices should be turned into the British exchequer.
The disinclination of the general post office to discuss the question of
the colonial post office was not likely to suppress the subject for
long. The assembly of Upper Canada had too strong a case. The political
grievances from which the province was suffering were bringing into the
political life of Upper Canada a group of men to voice the general
dissatisfaction with the state of affairs, and so undeniable an abuse
could not remain unexploited.
The house, which adopted the resolution of 1821, was on the whole
favourable to the lieutenant governor and his advisers. The succeeding
house, which was elected in 1825, contained a majority opposed to the
government. This fact did not, however, lead to the overthrow of the
lieutenant governor's advisers. They were his own choice and were in no
sense responsible to the house. It was not until sixteen years later
that responsible government, as now understood, was established in
Canada.
The turn of affairs in 1825, which placed the control of the house in
the hands of the opponents of the government had its effect on the
attitude of the parties towards the provincial post office. In 1821, the
lieutenant governor cordially supported the views of the house, and did
what he could to make them prevail with the postmaster general. In 1825,
when the post office grievance was brought up for discussion, the
lieutenant governor's party upheld the position taken by the postmaster
general in England.
The consequence was that, for the opposition, the post office was but
one more of the many matters calling for redress, while for the
government party it was another element in the burden which they had to
sustain in their resistance to reform.
In the beginning of 1825, William Lyon Mackenzie presented a petition to
the house of assembly to have the affairs of the post office
investigated. Mackenzie, who had come to Upper Canada in 1820, was
engaged in business until 1824, when, impressed with the various
political abuses from which the country was suffering, he abandoned what
had every appearance of a successful career, and gave himself to
agitation. He established a newspaper--_The Colonial Advocate_--in 1824,
and in 1828 secured a seat in the house of assembly. These vehicles of
publicity he employed in ceaseless attacks on the governing clique,
which from the intimacy of the ties binding its members together was
known as the Family Compact, and became the principal actor in the
abortive rebellion of 1837. The post office as then managed incurred his
unremitting hostility.
A committee was appointed having as chairman Captain John Matthews, who
represented the county of Middlesex along with Dr. Rolph, subsequently
one of the leaders of rebellion in 1837. Matthews was a retired army
officer, who entertained advanced political views, which were irritating
to the lieutenant governor. He was later on made to feel the lieutenant
governor's resentment for his opposition. As chairman of the committee
Matthews reported on the 9th of March, 1825,[203] that it was in
evidence that there were abuses which would be remedied, if the post
offices in the province were, as they should be, under the control and
supervision of the legislature.
The committee found that there were many populous districts, in which
post offices were much required; that many postmasters performed their
duties indifferently, letters and newspapers being opened and read
before being delivered; and that complaints to the deputy postmaster
general had no appreciable effect. The mail bags, the committee also
discovered, were often filled with goods, having nothing to do with the
post office, to the injury of contractors as well as of the post office
revenues.
Editors of newspapers, it was also ascertained, suffered from the
hardship of having to pay the postage on their newspapers in advance,
and the committee recommended that the postage on newspapers should be
collected as the postage on letters was, from those who received the
newspapers. Letters on public business should, in the opinion of the
committee, be carried free of postage; and the surplus revenue should
be expended on the public roads and bridges which were in a deplorable
state.
The final conclusion of the committee was that the provincial
legislature should take on itself the entire management of the post
office, even though this should involve some temporary expense. It was
not anticipated that such would be the case, but in any event the
deficits would be of short duration.
In the following session--1826--the post office was again discussed.
This time the discussion was on a motion of Charles Fothergill to take
into consideration the state of the province. Fothergill was king's
printer, and had been postmaster of Port Hope. He was dismissed from the
post office for his criticism of the administration, and was soon to be
deprived of the office of king's printer, on account of his advocacy of
measures distasteful to the lieutenant governor.
Fothergill in his attack on the post office,[204] had the advantages of
experience, and of some inside knowledge. Arguing from the revenue of
Port Hope, he declared his belief that the sum remitted to London each
year could not be less than L10,000, and that the business was
increasing so rapidly that in a few years the surplus revenue from the
post office would pay the whole expenses of civil government in the
province.
Some of the postmasters, Fothergill complained, acted with much
insolence towards those not in favour with the government. Their
newspapers were thrown about. Their letters were handed to them open.
The mails were often opened in public bar rooms. Sutherland, the deputy
postmaster general, had admitted to Fothergill that he was ignorant of
the geography of the province, which was a strong reason for the
appointment of a resident deputy postmaster general. Fothergill's great
objection to the existing arrangements was that they were
unconstitutional, and that the tax on newspapers was so oppressive as to
check their circulation. To test the feeling of the house Fothergill
offered a resolution declaring that the acts of 1778 and 1791 were part
of the constitution of the province.
John Beverly Robinson, the attorney general, traversed Fothergill's
statements, and desired the house to take satisfaction from the fact
that all the other colonies sent their surplus post office revenues to
the general post office, without remonstrance. He did not believe that
any large sum was sent from Canada. Indeed, Freeling told him (what was
quite untrue) that the Canadian post office was a burden on the home
department.
Fothergill was supported by Rolph, and also by Bidwell, one of the
leaders of the opposition, and afterwards speaker of the house. Rolph
recalled that the postmasters who had appeared before the committee
testified that the provincial post office was a remunerative
institution. He was satisfied that it could not be otherwise, as he had
learned by experience that a post office, however much required, would
not be opened until the deputy postmaster general was guaranteed against
any loss which might arise. But even if the post office could be shown
to be unproductive, he would propose to take it off the hands of the
mother country while it was a burden to her, and not to wait until it
began to be profitable.
Rolph moved an address to the king affirming that the present system was
being carried on contrary to the act of 1791, an act which was held by
the house to be a fundamental part of the constitution of the province;
that a well-regulated post office, responsible to the constituted
authorities of the province, and extended in the number of its
establishments would tend to correct and prevent abuses which were found
to exist under the present system, would facilitate commercial
intercourse, promote the diffusion of knowledge and would eventually
become an important branch of the provincial revenue. The assembly
therefore begged, with many expressions of loyalty and gratitude, that
the control and emoluments of the post office so far as they concerned
the province might be conceded to them. There was some opposition to
Rolph's motion. Eventually the address was adopted by a vote of nineteen
to five.
The address, which it will be recalled had originated with the
opposition, was laid before the colonial office under very different
circumstances from those attending the report of 1821. On that occasion,
the memorial was brought to the foot of the throne with the good wishes
of both the government and the legislature. It was accompanied by a
letter from the lieutenant governor, commending it to the favourable
consideration of the home authorities.
The address of 1826 was also accompanied by a letter[205] from the
lieutenant governor, but so far from commending it, the purpose of the
letter was to suggest an answer confuting the arguments of the assembly.
Dealing first with the allegation of the assembly that the postage
charges were a tax, and as such repugnant to the act of 1778, Maitland
recalled Franklin's contention before the British house of commons in
1765, that postage duty was not a tax, but rather a consideration for a
service performed, and exacted only from those who chose to avail
themselves of that service.
Assuming, as the governor did, that the revolted colonies generally
acquiesced in the justice of Franklin's view, while objecting to other
duties as unconstitutional, he could not see on what valid grounds the
legislature rested its case. This reasoning is directly the opposite of
the view expressed by the lieutenant governor in 1821. He then gave it
as his opinion that the acts of 1778 and 1791 made it illegal for the
Canadian post office to make remittances to London of surplus revenue,
but that the matter would not have been noticed in the province, if a
satisfactory service had been given by the deputy postmaster general.
Indeed, Maitland left no doubt that his real opinion was unchanged, for
he went on to intimate that he would not depend upon Franklin's
argument, if it could be shown that there was any considerable surplus
from the postal operations in Upper Canada. The lieutenant governor
enjoyed his little excursions among the statutes, however, and although
the postmaster general had the benefit of the advice of the law officers
of the crown, Sir Peregrine did not scruple to take on himself the role
of legal adviser of the general post office.
Even if the duties were declared to be a tax within the meaning of the
act of 1778, since the duties were collected under the amendment of 1765
to the act of 1710 which was anterior to the act of 1778, Maitland
argued that it was questionable whether their collection could be
regarded as a violation of the act of 1778. But there was one person to
whom this gratuitous argument carried no conviction, and that was the
propounder of it himself. He would still hark back to his underlying
idea, and intimated his persuasion that the British government had no
desire to raise a revenue from the colonies through the post office, and
suggested that if it could be shown that the post office yielded a large
revenue after paying the charges, the government would be prepared to
reduce the rates or to place the surplus at the disposal of the colony.
Although the assembly stated that it would be desirable in the interests
of the province to have the post office under the control of its
legislature, the lieutenant governor believed that the preponderance of
the better opinion, whether in or out of the assembly, would be found
opposed to that proposition. It would be impossible to carry on an
independent system in an inland province, and the attempt to do so
would involve the colony in heavy expenditure. The lieutenant governor
discredited entirely the allegations that there were abuses in the
service, and he had much reason for thinking that Sutherland, the deputy
postmaster general, discharged his duties to the general satisfaction of
the public.
Maitland's letter, which bears all the marks of having been written by
the attorney general, Beverly Robinson, is a capital illustration of the
vicious circle of deception sometimes practised by persons having a
common purpose with reference to a scheme. The official class in York,
as well as the secretary of the general post office, desired to defeat
the wishes of the house of assembly respecting the post office, the
family compact group, because any victory gained by the house threatened
the privileges enjoyed by that class; Freeling, secretary of the post
office, because it would diminish the revenues of which he was a most
zealous guardian.
Freeling told the attorney general that the Canadian post office was a
burden on the revenues of the general post office, and the attorney
general, accepting this statement, told the secretary that such being
the case, the statutes on which the house of assembly relied were not
applicable. The secretary's statement was demonstrably incorrect, but it
furnished the foundation for the opinion which he desired, that the law
did not require, nor did expediency suggest, the transfer to the Upper
Canadian legislature of the control of the post office in that province.
Robinson wrote to Freeling supporting the views of the lieutenant
governor; and at the same time Freeling received a letter from Markland,
a member of the executive and legislative council of Upper Canada,
protesting against the attempt on the part of the assembly to interfere
with the post office as the assumption of a right to which they had not
the least pretension. The best-intentioned and the best-informed people
in the province were against such interference.
By way of parrying the demand of the assembly for control over the post
office, Markland suggested that it would be well to appoint a post
office superintendent for the upper province. Upper Canada was entirely
distinct from Lower Canada in all matters of government. The post office
alone was subject to the control of a person, outside of the province,
who never visited it. The people of Upper Canada were, he declared,
energetic and enterprising, and immigration was coming in on a full
tide. Freeling considered this an important letter, and laid it before
the postmaster general.
The agitation in Upper Canada aroused a flutter of interest in London.
When newspaper reports of the discussions in the house of assembly in
December 1825, reached St. Martins-le-Grand, they fell under the notice
of the postmaster general, who was moved to ask Freeling what it all
meant. Freeling replied that the accounts related to great disputes in
Canada as to the application of the rates of postage levied in that
country, whether the rates should not be devoted to local purposes. At
that time, Freeling stated, the rates formed part of the consolidated
fund.
The colonial office and the treasury also made inquiries. The colonial
office was informed that the revenues of Upper and Lower Canada were
blended, and that for seven years previous there had been a surplus from
the two provinces which amounted on the average to L5790 a year.[206] It
was also pointed out that the estimated cost of the packet service was
L10,000 a year.
Robinson,[207] the chancellor of the exchequer, with whom Freeling had
an interview in October 1826,[208] did not fall in with Freeling's views
quite as readily as the others had done. He expressed the opinion that
Canada's contention was in the main sound. The net revenue from the
Canadian post office ought in fairness to be applied to colonial
purposes, not in the mode or on the principle put forward by the
assembly, but under the direction of the home government. It should be
in the nature of a civil list.
Freeling was alarmed at the chancellor's utterances, and reminded him
that what was granted to Canada could not be withheld from Jamaica. The
chancellor admitted this to be the case. Freeling insisted that there
could be no doubt as to the legality of the present practice, though he
confessed that the law officers gave no opinion on the case prepared in
1822. Indeed, it had not been submitted to them, as Lord Chichester, the
postmaster general, had an invincible reluctance to taking their
opinion, and would not do so unless positively instructed by the
government.
Then there were the packets. Freeling could not let the opportunity pass
of mentioning Canada's obligations with respect to the packet service.
He did not, however, endeavour to impose on the chancellor of the
exchequer his view that the cost of this service should be set against
Canada's post office surplus. In his memorandum of the interview,
Freeling merely notes that the opinion between them inclined to the
view that as the packets were maintained for the benefit of Canada as
well as of Nova Scotia, some part of the expense should be borne by
Canada.
Up to this point, the agitation against the post office was confined to
Upper Canada, which indeed was the more aggressive province during the
whole course of the dispute. In 1827, however, the legislative assembly
of Lower Canada took a hand in the controversy, contributing a strictly
legal and even technical memorandum embodying an argument in favour of
its contention that the colonies should participate with the United
Kingdom in the profits of the general post office.[209]
The memorandum pointed out that the act of Queen Anne established a
general post office for, and throughout Great Britain and Ireland, the
colonies and plantations in North America and the West Indies, and all
other of Her Majesty's dominions and territories; and that of the duties
arising by virtue of this act, L700 a week were to be paid into the
exchequer for public purposes in Great Britain. Certain annuities and
encumbrances charged on the postal revenues by earlier acts, were
continued by the act of Queen Anne. When these charges amounting to
L111,461 17_s._ 10_d._, and the L700 a week already mentioned were
satisfied, one-third of the remaining surplus was reserved to the
disposal of parliament "for the use of the public."
The house of assembly argued that this act, which by later acts was
declared to be in force in Canada, applied to the people of England,
Ireland and colonies of North America and in the West Indies. The word
"public," therefore, being used without limitation, or qualification,
could not signify exclusively the people of Great Britain and Ireland,
or of the colonies. On the contrary, being equally applicable to all who
were within the purview of the act, it designated the people of all the
dominions of the crown in which the postal revenue was to be levied. The
statute thus carried on the face of it a parliamentary declaration that
the colonies were entitled to a share of the post office revenues, and
it enacted, by implication, that the amount of the share should be
determined by parliament at some future period.
Here followed a novel and ingenious application of the statute of 1778,
which was enacted for the purpose of conciliating the colonies by
conceding the point at issue between them and the mother country.
The assembly stated that by this act it was declared that, for the
peace and welfare of His Majesty's dominions, the net produce of all
duties, which after the passing of that act were imposed by parliament
upon the colonies, should be applied to the use of the colony in which
it is levied. Unlike the assembly of Upper Canada, the assembly of Lower
Canada did not maintain that the act of Queen Anne was annulled by the
act of 1778.
It will be remembered that the British post office rested its claim to
collect the colonial postages on Queen Anne's act with its amendments,
while the Upper Canada assembly asserted that the act of 1778, which was
made part of the constitutional act of 1791, deprived the British
government of any right it formerly had to impose a tax on the colonies.
The Lower Canadian house of assembly made another use of the act of
1778. It submitted that, so far as postal revenues were concerned, it
was the complement of the act of Queen Anne. The earlier act, in the
view of the assembly, left the amounts of the shares of the postal
revenues to which the colonies were entitled, to be determined by a
future act of parliament, and the act of 1778 had this effect, if not in
the letter, at least in its spirit; and consequently Lower Canada, as
one of the colonies had a fair and equitable claim to the net produce of
the post office revenue levied within the province, after deducting the
expenses of the post office established therein.
Shortly before the house of assembly at York took into its consideration
the question of the legality of the postal system in operation in Upper
Canada, the home authorities were discussing a matter, which was a
source of much embarrassment to the deputy postmaster general. The
steamboats, which had been running since 1809, between Montreal and
Quebec, had so far improved that they outdistanced the mail couriers,
who travelled on the shore of the river, and a great many letters were
carried between the two towns by the steamers.
The deputy postmaster general made provision for the conveyance of
letters by steamers, by placing official letter boxes on the boats. He
allowed the captains twopence for each letter they carried, and charged
the public the regular postage rates. But the public paid little
attention to the letter boxes. They simply threw their letters on a
table in the cabin, and when the steamer reached its destination, those
expecting letters sent down to the landing and got them, paying a small
gratuity to the captain.
Moreover, in cases where the letters had been deposited in the letter
boxes on the steamer, and were delivered by the captain at the post
office, many of the people to whom the letters were addressed refused to
pay the same charges as if the letters were conveyed by land, alleging
that such charges were illegal.
The deputy postmaster general laid the facts before his superiors in
England in 1819, asking for some document of an authoritative character,
which, when published, would put a stop to the illegal practices. The
solicitor of the post office to whom the matter was referred had no
doubt that the acts complained of were illegal, and would render the
offenders liable to penalties, if the practice were carried on in
England, but he could not be sure that penalties for the infraction of
the post office act could be recovered in Canada.
Freeling, the secretary, thereupon made a suggestion[210] which must
have caused him some pain. The right of the post office to protect its
monopoly was quite clear, and the natural course of the postmaster
general would be to direct his deputy in Canada to enforce the law. But
as the legislatures had in several instances manifested an inclination
to interfere with the internal posts, he recommended that, instead of
taking proceedings to protect His Majesty's revenues, and, as he says,
to enable them to continue to flow into the exchequer of the United
Kingdom, the postmaster general should state the circumstances to the
colonial secretary, and request his opinion before instructions were
sent out to the deputy postmaster general.
Bathurst, the colonial secretary, fully concurred in the view of the
postmaster general that the subject was one of great delicacy, and wrote
to the governor general, Lord Dalhousie, setting forth the facts and
stating that under ordinary circumstances he would have had no
difficulty in recommending a prosecution.
In view of the attention which the house of assembly had been giving to
the revenues of the colonial post office, and of the doubt which had
been suggested as to the right of Great Britain to receive those
revenues, the colonial secretary thought it possible that the
enforcement of those rights at that time might embarrass the governor
general by giving the assembly an additional ground for contention with
the mother country. He, therefore, had given directions that the deputy
postmaster general should communicate with the governor general on the
subject, and should not institute proceedings without the full
concurrence of the latter.
The deputy postmaster general was instructed in this sense in September
1820, and matters remained in abeyance until 1826, when the deputy
postmaster general, presumably with the concurrence of the governor
general requested the opinion of the attorney general of Lower Canada on
the subject. The attorney general, James Stuart (afterwards Sir James)
advised that the right of the post office was clear, and he conceived
that there should be no difficulty in recovering pecuniary penalties for
the infringement of the postmaster general's privilege.
But no action was taken on this opinion. The relations between the
provincial governors and the assemblies were becoming more strained as
time went on, and the governor general had no desire to augment the
grievances of the assemblies by introducing irritating matters, in which
the right of the home government might with reason be held to be
disputable.
FOOTNOTES:
[190] In course of debate in assembly, December 16, 1825 (Report in
_Colonial Advocate_).
[191] _Journals, House of Assembly_, March 1, 1820.
[192] _Can. Arch._, Br. P.O. Transcripts, III.
[193] _Can. Arch._, Br. P.O. Transcripts, III.
[194] _Ibid._
[195] _Can. Arch._, Q. 278, p. 44.
[196] _Journals of Assembly_, U.C., 1821.
[197] _Imperial Statutes_, 9, Anne, c. 10.
[198] _Ibid._, 41, Geo. III. c. 7.
[199] _Ibid._, 18, Geo. III. c. 12.
[200] _Imperial Statutes_, 14, Geo. III. c. 88.
[201] _Can. Arch._, Q. 332, p. 95.
[202] Freeling to S. R. Lushington, June 3, 1822 _(Can. Arch._, Q. 162,
p. 165).
[203] _Journals of Assembly_, U.C.
[204] _House of Assembly_, December 16, 1825 (Report of the _Colonial
Advocate_).
[205] _Can. Arch._, Q. 340, p. 49
[206] Freeling to Horton, July 25, 1826 (_Can. Arch._, Br. P.O.
Transcripts, II.).
[207] Afterwards Earl of Ripon: well remembered in Canada as Viscount
Goderich.
[208] October 3, 1826 (_Can. Arch._, Br. P.O. Transcripts, II.).
[209] _Can. Arch._, Q. 180, p. 258.
[210] Freeling to Goulborn, December 29, 1819.