TO THOMAS MARKLAND and PETER SMITH, Esquires.
By an advertisement, published in the last Kingston Gazette, you have given notice, that a Ferry is to be established between Kingston and Point Frederick; and that the landing points are fixed upon, to wit, the street near Mr. H.C. Thomson's in Kingston, and a point north of Sir Robert Hall's in Pittsburgh; and that a Lease of it will be granted for three years; and you call for tenders, specifying the price the tenderers are respectively willing to give for the Ferry, etc. It is not expressed whether the price thus to be given, is to be considered as a rent reserved on the Lease, for the benefit of the Leasors, or a tax, in the nature of a duty on the License; or if the latter, whether it is to be paid to his Majesty's Receiver, for the use of the Crown; into the Provincial Treasury, for the use of the Province; into the District Treasury, for the use of the District; or to the Wardens, for the use of the poor. Here a doubt arises. Can a Ferry-License duty be legally collected, there being no such tax provided for by Statute? If received by voluntary payment, is there any legal appropriation of it, so that it may safely be accounted for, and paid over; or must it remain in your hands as a deposit, until an act be passed for its appropriation?
The advertisement appears to be signed by you, with the initial letters J.P. annexed to each of your names, importing, I presume, that you are acting as Justices of the Peace. There is no intimation that you are authorized as agents of his Excellency the Lieutenant Governor, or a committee of the Court of Sessions. Indeed, upon application at the office of the Clerk of the Peace, it appears that the Court of Sessions have passed no order on the subject. Persons wishing to undertake the proposed Ferry, being thus publicly invited to give in tenders, have a right to enquire as publicly, by what authority you act, in order to judge whether they will be safe in making proposals, to contract with you for the lease offered them in your advertisement. I am not willing to suppose you are ignorant of the law, relative to your official powers and duties, or that you have usurped an authority not vested in you by law; and yet, upon enquiry, I cannot find, that either the Common Law, or any Provincial Statute has empowered you to establish or lease a Ferry, to license a Ferry-man with the exclusive privilege of ferriage, or to levy a Ferry License tax. In these respects, information is requested. If you two Gentlemen can establish a Ferry between the points you have fixed upon, cannot any other two Justices, for instance, Messrs. Cumming and Robins, establish one between two other points, as from the end of Store Street, at Kirby's and Worden's wharves, to such landing place as they may prefer on the other side. If two Justices can license a ferry between the Town of Kingston and Point Frederick, cannot they or two other, upon the same principle, grant a license for the ferry between Kingston and Wolfe Island, and thus supercede the License granted for that ferry by the Lieutenant Governor? If two Justices can lease a ferry for the term of three years, why not for ten years, or for life, or even grant it in fee? which I believe is more than can be done by all the Justices of the District, assembled in General Quarter Sessions. By the act for the regulation of Ferries, the Court of Quarter Sessions are authorized to limit the fees or rates of ferriage, at any ferry in their District, and to ordain rules and regulations to be observed by the ferry-man. This is the substance and extent of their power on the subject. As to the establishment of the ferry itself, and the appointment and licensing of the Ferry-man, the act is silent, and there being no provision made on those points, the Lieutenant Governor it seems, has thought it to be within the Royal prerogative, in the same manner as Marriage Licenses, for which there is no provision in the Provincial Statutes, his Excellency has accordingly from time to time, upon proper application, granted licenses, for ferries. In granting them, doubtless he always pays due respect to the opinions and recommendations of the Magistrates of the District. By exercising the right, however, he evidently considers it to be vested in the office of the Representative of the Crown, as a branch of the Executive Government, and not in the Court of Sessions. Upon this principle, you are sensible Petitions have been addressed to him for the ferry proposed in your advertisement - and in an application for a ferry (not in this District) wherein I was in some measure concerned, in a letter from his Excellency's Secretary, I received the following paragraph, which distinctly shews that his Excellency considers the right of granting Ferrage Licenses, to be vested in the Crown: "It being the established usage hitherto acted upon, that all applicants for Ferries should be recommended by the Magistrates in Session, as proper persons to keep them, however unnecessary he may think such a formality as respects Mr. ____, does not feel himself at liberty to depart from the adopted mode; but will readily accede to his application for the ferry from ___ to ___ when made in the accustomed form." But whatever claim the Court of General Quarter Sessions may have, to the right of establishing ferries, and granting license or leases of Ferries, on a rent, or duty or price to be paid for the privilege, it does not follow, that two justices out of Sessions, however respectable they may be, can rightfully claim or lawfully exercise such authority. Some acts may be performed by a single justice, or two justices out of Court, but the regulation on Ferries to whatever object it may extend, is by the Statute required to be in the General Quarter Sessions, and two Justices have no more power to license a ferry, than they have to refuse to grant a warrant when proper application is made for the same.
If, Gentlemen, I have misunderstood your advertisement, or mistaken either the Law or the facts on the subject, I assure you the error is unintentional and I hope it may e corrected.
A Scow for Sale, Apply to the Subscriber. Richard Smith, April 1st.
The following ships have been commissioned upon the Lakes of Canada: Kingston 56, Com. Sir Robert Hall; Burlington 42, Capt. N. Lockyer; Charwell, 50 Capt. Montresor, on Lake Ontario; Champlain 32, C. Duell, on Lake Champlain; Confiance, 32, Capt. D. Pring on Lake Erie.