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.
CHAPTER IX
Thomas Allen Stayner deputy postmaster general--Restrictions of general post office relaxed--Grievances of newspaper publishers--Opinion of law officers of the crown that postmaster general's stand is untenable--Consequences.
Owing to failing health, Sutherland retired from the service in 1827. He was succeeded by his son-in-law, Thomas Allen Stayner, the last of the deputies of the postmaster general of England, and in many respects the most notable. Stayner was brought up in the post office, and at the time of his appointment to the position of deputy postmaster general he was in charge of the Quebec post office.
A man of unusual ability, Stayner gained the confidence of his superiors in England, to a degree at no time enjoyed by his predecessors. What was equally important, he managed to keep on good terms with the governments of the two provinces.
When the houses of assembly in Upper and Lower Canada denounced the post office as inefficient and unconstitutional, and proposed to take the management of it into their own hands, the governors and legislative councils in the two provinces took the side of Stayner, and while they urged upon him and the postmaster general the expediency of meeting the reasonable demands of the assemblies, they set their faces steadily against any revolutionary propositions respecting the control of the department.
This attitude was in a measure due to a change in the policy of the postmaster general and his advisers in England. The earlier deputies were held by so tight a rein, and their suggestions and recommendations so little regarded, that they occupied a role scarcely more important than that of being the hands and voice of a department, which, unpopular at home on account of its illiberality, aroused general discontent in Canada by adding to its administrative vices, an entire ignorance of the situation with which it had to deal.
At the outset of his administration Stayner's powers were as much restricted as were those of the deputies who preceded him. A few months after his appointment, he opened a post office at Guelph. He assured the postmaster general that he had not done so until he had satisfied himself that the prospective revenue would more than meet the expense.
But he did not escape a warning and an intimation that the departmental approval would depend on the financial results.
Shortly afterwards, Stayner established an additional courier on the route between St. John and St. Andrews in New Brunswick, the point at which the mails between the Maritime provinces and the United States were exchanged. This action, though most desirable in the public interest, brought down upon him a rebuke, and a reminder that the postmaster general's sanction must be obtained in all possible cases, before lines of communication were opened which were attended with expense.
The circumstances of the country were making a continuance of this repressive course impossible. Settlements were springing up too rapidly, and the demands for postal facilities were becoming too insistent to leave it possible to delay these demands until formal sanction was obtained from England. In November 1829, Stayner informed the postmaster general that, in Upper Canada, the lieutenant governor, the legislature, the merchants, and indeed the whole population, were calling for increased postal accommodation.
In the United States, Stayner pointed out, almost every town and village had a daily mail, and this excited discontent with the comparative infrequency of the Canadian service. He suggested that he be allowed to expand the service, and to increase the frequency of the courier's trips, wherever he was convinced that the ensuing augmentation of correspondence would more than meet the additional expense.
Stayner had been so fortunate as to impress the postmaster general with the fact that a very considerable discretion might safely be left with him. Besides this, the postmaster general was under a growing sense of the insecurity of the legal foundations of the post office in the colonies. To Stayner's gratification he received a letter from the postmaster general[211] enjoining him to make it his study to extend the system of communication in all directions where the increase of population and the formation of new towns and settlements seemed to justify it.
This was a wise step. It gave the department a representative, zealous in its interests, as intimately acquainted with local conditions as the assemblies themselves, and thoroughly competent to undertake the responsibility devolving upon him.
Stayner's commission placed New Brunswick as well as Upper and Lower Canada, under his charge. But before the close of 1828 the service in New Brunswick was transferred to the control of the deputy postmaster general for Nova Scotia.[212] This change was made at the instance of the deputy of Nova Scotia, who, being in England at the time, explained to the postmaster general how much more closely New Brunswick was associated with Nova Scotia than with Quebec, and pointed out that orders from home affecting New Brunswick and requiring immediate attention were delayed in that they had to pass from Halifax through New Brunswick, and then return to New Brunswick. All the other branches of the imperial service in New Brunswick had their local headquarters in Halifax.
At the time Stayner was placed in charge of the postal service in the Canadas, the system of communication was still simple enough to be described in a few lines. There was a trunk line from Halifax, Nova Scotia, to Niagara and Amherstburg on the western boundaries of Upper Canada. The distances were to Niagara, one thousand three hundred and fifty-six miles, and to Amherstburg, one thousand five hundred and sixteen miles.