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Tous las autres exemplairas originaux sent ffilmte an commenpant par la premidra page qui comporte une empreinte d'Impression ou d'iiiustratlon et en terminant par la darnlAre pege qui comporte une telle empreinte. Un des symboles suivants apparaftra sur la darnlAre image de cheque microffiche, selon la cas: la symbols -^> signiffle "A SUIVRE ", le symbols y signiffie "FIN". Les cartes, planches, tableaux, etc., peuvent Atre filmto i des taux da reduction diffffArents. Lorsque le document est trop grand pour Atra reprodult an un seul clichA, 11 est ffilmA A partir da i'angie supArieur geuche, de gauche A droite. et de haut an bas, an prenant le nombre d'imagas nAcassaire. Les diagrammes suivants illustrent la mAthoda. 1 2 3 1 2 3 4 5 6 PAPERS RESPEOTIN(i CL.VllVl OF SHAKElIOLDI-lliS IN THE LATE WELLAND CANAL COMPANY, ill FOR AHllEAUS <)l IN'l'EREST, Under llio Ad 7tii Vicloria, (liaplcr ^M. Printed hj Order of the Le^islathe AssemUy. •»-* ..--■.■^-, Q U E B R C : I'RINTED BY ROLLO OAMPBELl. NO. 11, (iARDEM STUEET, ^.5i '(!& w^fi^^mm i>;-LdiAf- ippp ■'•"'""'flFWilpiliP" ,,«•'- HP ir >i*H'i^i:^l /i:-^' 1 ' ■ .■•( HH'1f1^;!nff'^'^^^'r:H< :4UiJ t f .;' ,^ 4J'l^^'"^.'¥i * '■ . ^■i|:i;j'i|W.'fBvil! L 1 .',•■• o ^:. I ]f<' ^1 n^ByaMMKimmnin ^ PAPERS » * RESPECTING f ■^i fy ^ CLAIM OF SHMEHOLDEKS IN THE LATE WELLAND CAML COMPANY, FOR ARREARS OF INTEREST, Under the Act 7th Victoria, •Chapter 34. Printed hy Order of the Legislative Assembly, « -.# V, QUEBEC: 1^ PRINTED BY ROLLO CAMPBELL, . ^ . NO. 11, OARDEN STOEET, ^ . 1863. \ ^A VI M Hfj. t;: :S 'iii':'i -^.; • •t 111 « .■ .t ',e -f. 0::^'. KETUKN- i To an Address from the Legislative Assembly to His Excellency the Governor General, dated the 13th instant, praying that His Excellency would be pleased to cause to be laid before the House, " a Return of all " Documents and Correspondence relative to any applications on the " part of the Shareholders in the late Welland Canal Company, for " claims alleged to be due them under the provisions of the Act 7 Vic. "cap. 34." :\ ■ *. ; ;:r;_ ; ;.j ■ _ _ v; -^ , ; , ■ f By Command. Provincial Secretary's Office, , Quebec, 14th June, 1853. t* « •niiti:tf>f A. Ne MORIN, >:- Secretary. 1' ^'-m^kii iv I'' II ill II •f s 01 ■J « o CI ^ to 04 o> o CO O 01 " O K» s" .2 ,g i!LW -a w • — ^ ,^ 1» % at g s t-oo to to \m t 1 a Sx C "ti ■<-' ♦^ M ■c ^ ^ a £ s g a o ,2 « ^ « .9 -S "^^a^ fl 2 -I ' I O o o o II 5 cu || t-i C -^ oM fctf ts.g •pe-^^ •-9 I* Of I ^^ -^a -73 ■ • ^ eo • •-S ^ 1 t IP! r CO ^ a> ■X rH JO 1 OJ 1^ =J3 CD I I A, o I I o< o I" Ci.^ CM OS I O • • • • • • ■_? ' * (< To Hid Excellency the Right Honorable James, Earl of Elgin and Kincardine, .. K.T., Governor General of British North America, and Captain General and Governor in Chief in and over the Provinces of Cana:la, Nova Scotia, I'fi New Brunswick, and the Island of Prince Edward, and Vice-Admiral of the same, &c. &c. &c. The Memorial of the Honorable William Hamilton Merritt, on behalf of the Shareholders of the Welland Canal Company, most respectfully submits, for the consideration of your Excellency, the following documents : — First. The Memorial of the Shareholders residing in the United States, with the legal opinions and references thereon. Second. The Memorial of Messieurs Bosanquet, Franks and Company, Agents on behalf of the Shareholders residing in England, with the legal opinions accom- panying the same, and a copy of the Act, enabling the Provincial Government io purchase the Stock, on which those opinions are founded. Thirdly. In addition to the above, your Memorialist begs leave to submit a brief narrative of the proceedings of that Company, in order that their claim may be clearly understood. In 1823, an Act was obtained to incorporate the Welland Canal Company, which was organised, the Stock subscribed, the work commenced on the 30th No- vember, 1824, and continued without intermission until the Navigation was opened on the same day in 1829. In the Report for 1829, (vide Appendix to Assembly Journals for 1830, p. 10,) the amount of Expenditure is thus described : — ■:<•', " In order to show the Government and the Stockholders that their money haa " been economically expended, the following statement is presented: — " Amount paid Contractors on the Estimate of the Engineers £243,000 " Amount of Awards and Real Estate 4,853 " Duties to Government and Interest to Bank of Uppe Canada 65804' '"Thomas Proctor, Agent, New York 3,428 " Contingencies, including Salaries, &c., making near 5 per cent, on the outlay 12,710 ; V , '^^ ' , ^ « Total V..... .......!... ^..^^.1.. £272,795" The extent of the work constructed for the above outlay is also pointed out. A Ship Canal, from Lake Ontario to the River Welland, sixteen miles, to mouth of said River towing nine and one-fourth miles ; to Fort Erie, on the Niagara Ri- ver, eighteen and three-fourth miles ; Port Maitland to Dunville, five miles ; Dun- ville to Cayuga, fifteen miles, and Dunville to the Deep Cut (near Port Robinson) twenty-six miles : embracing, in all, a Navigation of ninety miles in length, with an ascent of 358 feet, surmounted by forty wooden Locks ; the erection of two Harbours, Ports Dalhousie and Maitland, an Aqueduct over the River Welland, 365 feet in length (designed and built by Marshall Lewis), and the best wooden structure in America. A Dam and Embankment over the Grand River, near one mile in length, fifteen feet water in the Channel, and one and three-quarter miles of the deepest earth cutting on this Continent. The Directors state, that "not- '• withstanding the increased expense and delay incurred by moving the Dam from *♦ the entrance at the Grand River, the Slides at the Deep Cut, and the limited ** means of the Companv, it will scarcely be credited, that this great undertaking 2 ' ■ ' • ■ ■•• - - •■'".■. I : Bh *• is 80 far accomplished for bo small a sum. It is quite impossible to realise the ** embarrassments of this Company during .e above period, arising from a desire ** to introduce capital from the mother country, when they were led to believe it •* would be readily obtained." The origin of those embarrassments is clearly pointed out in the extract of the Keport of 1825 :— " On the day subsequent to the passing of this Act, the Directors assembled, ** and, being anxious to preserve the management under British influence, they de- *' termined to reserve a considerable part of the increased Stock, in order to be of- *• fered, in the first instance, to Subscribers in England. Of the original Stock of ** £40,000, more than one half has been subscribed in New York, and there was ** little doubt but that the whole Capital required might at once have been obtain- *' ed in that opulent and enterprising city ; whereas in Canada the want of Capital " precluded any prospect of obtaining subscriptions to so large an amount. Feel- ** mg the expediency of immediately obtaining means to proceed with the worlis *' which had already commenced, and at the same time being desirous that at least ** a majority of the Stockholders should be British subjects, the Directors resolved " to limit the Subscriptions in New York to £75,000, which sum was immediately ** taken up by the old Stockholders, to whom the option was first given ; bo that at ** a public Meeting which had been advertised for opening Books and receiving " Subscriptions, no Subscriptions could be accepted ; and such was the general *' opinion of the benefit promised by the undertaking, that more than the whole " Capital would, at that meeting, have been readily subscribed, but the President *' of the Company (the Honorable John Henry Dunn, then Receiver General for " Upper Canada,) who was present, refused to receive more than the prescribed *' amount of £75,000." As an evidence of the want of Capital in Upper Canada during the progress of this work, only 232 Shares of the Capital Stock, amounting to £2,000, was held in that Province, and only eight individuals were eligible for Directors. i In 1826 and 1827, the Acts 7 Geo. IV., caps. 19 & 20, and 8 Geo. IV., caps. 2 & 17 were passed. On the thirtieth September Lord Bathurst's Despatch was received, offering to advance one-ninth of the estimated cost of Canal on certain conditions. In 1827 a grant of 13,400 acres of land was made, and £50,000 Stock subscribed on certain conditions by the Legislature. In 1828, out of the £100,000 which was reserved for Shareholders in England, about £35,000 was obtained, with a liberal.'grant of £50,000 sterling from the Impe- rial Legislature ; so that a sufficient sum was procured to prosecute the work with continued vigor until the twenty-fifth October, when the most formidable slips took place at the Deep Cut, at a time when there was every prospect of getting the water from the Welland River through in ten days. This disaster compelled the Company to adopt a higher level from the Grand River, which required the con- struction of a Dam over the Grand River, an Aqueduct over the Welland, four wooden Locks at the Deep Cut, twenty-seven miles of a Feedei, and a Ship Ca- nal of nearly half a mile in length to connect the Welland and the Niagara Rivers, with the Towing-paths thereon, at a cost of £25,000 over and above the amount of money then at the command of the Company. After due deliberation, on the tenth day of April, 1829, this gi*eat undertaking was commenced ; on the 9th October, the water was let in from the Grand River, and on the thirtieth November, Five years from the day the first sod was removed near the Deep Cut, two Vessels pas- sed from Lake Ontario to Lake Erie. ; i,^ , This unprecedented result wan obtained by combining the personal interest of every individual employeu on the work. it <( it n a $ The agreement between the Company and the Contractors stipulated that the payments were to be made to each in proportion to the amount of money on hand. J3etween the Contractors and individuals, to remain on the work until finished, and wages not to be paid until a grant was obtained from the Legislature, or some other source. The Report contains the following just and appropriate remark: — " Had it not " been for the confidence manifested by the Contractors, the work must have been ** suspended altogether : by their indefatigable exertions, under every disadvantage, *' in carrying out the plans of the Company, is the unexampled success of this " year's work to be attributed." Also : — " However great have been the difficul- ** ties surmounted in constructing so frrmidable an undertaking to its present ad- " vanced state, the whole pressure has been borne by the Shareholders, since no " aid has been granted by the Government or the Legislature, for which the in- ** terest has not been punctually paid up by the Company." " The financial " arrangements have been attended with dit&culties, which they had no reason to ** expect, because they have arisen from a hesitation to fulfil engagements which " the Directors considered to be conclusive, and upon which they therefore relied. " No such failure, however, has occurred with respect to the Shareholders in " America." Up to this pei-iod, the Directors were appointed by the Shareholders. They never accepted any compensation for their services, and having accomplished the object for which they undertook this most arduous duty, they retired with a con- sciousness of having opened a commercial intercourse which, although fully appre- ciated by them, was not by the public, as appears by the following remark in tho Reportof 1829:— " It has been their mortification to find, that while with the greatest proportion *' of strangers who visit this Province the Welland Canal seems to possess a pecu- ** liar interest, the inhabitants of Upper Canada appear to entertain the most im- ** perfect ideas of the stupendous nature of this undertaking, the rapid strides by '^ which it has advanced to its consummation, ( nd the immense advantages to *' themselves and to their country which must follow the successful termination of *'' a work that it is probable will be thought hereafter to reflect some degree of credit " upon those by whose encouragement and exertions it has been supported." Under the provisions of the Acts 10 Geo. IV. cap. 9, and 7 "Will. IV. cap. 92, aec. 8, three of the Directors were appointed by the House of Assembly ; or, under last mentioned Act, by the Government. In 1830, a loan of £25,000 was obtained, to pay off the debt due the Contrac- tors the preceding year. In 1831 an application was made for a further loan of £200,000 to pay off the debt due the Government and extend the Ship Canal to Gravelly Bay (the circuitous route by the Niagara River having proved tedious and expensive ;) only £50,000 was obtained, and that on condition that the Company should furnish individual security that this sum should complete the whole Canals, Harbors, »» I 45,123 15 Making m all, as per the Balance Sheet submitted by Messrs. Cameron and Murray {vide Appendix 3. Journals of 1836-7).£451,519 6 2 Under the Act 7 Will. IV. cap. 92, all Loans heretofore made to the Compa- ny by the Provincial Government were converted into Stock, and a further Sub- 1.. . I II': I t Bcription on the part of the Government of £245,000 was also authorized, to com-' plete tho Canal in a durable manner with stone Locks ; three out of the five Di- rectors were appointed by the Government, which virtually placed the Canal un- der its control. This Act appropriated the income to be derived from the Canal, first, in the payment of interest on future Loans ; the remainder in the payment of Dividends to private Shareholders until it reached six per cent., after which the surplus was to be applied to the payment of interest on the previous advances by the Government. The cost of management to be sustained out of the capital until the Canal was finished. The publication of the Keport of the Directors of the 12th February, 1838, created a distrust in the minds of the Shareholders, respecting the future management of the Canal, which led them for the first time to memorialize the Government. The Memorial states: — "That the Shareholders had subscribed their stock as " early as 1825. In consequence of the capital having been withheld, thev were " compelled to pay up the full amount in a very short period, to their great injury, *' for which, up to the present moment, they have never received a farthing. That " in 1837, they learned with dismay, that without their knowledge or assent, the " management of their property was taken from them by the Legislature, and *' vested under the control of the Government, a measure which, without remune- *' ration, they believe to be unprecedented in any Country." " That if the true spirit and meaning of the Act had been adhered to, it would " have insured the Government interest on their loan, and the Shareholders a divi- " dend, inasmuch as the expenditure would have been gradual from year to jear, *' and the income, as on all other Canals, would have increased in a progressive *^ proportion. They conclude in praying that as the control of their property had " Deen wrested from them, they may be repaid for their outlay in constructing a ** public work which, for usefulness and profit, under proper management, is not " equalled in America." (See Memorial, dated 18th March, 1839, in Appendix to Assembly Journals for 1839-40, Vol. 1, part 2, page 23**.) The Committee to whom was referred the Message of His Excellency the Go- vernor General on the subject of the Act authorizing the purchase of the private stock held in the Welland Canal Company, and the Petition of the Shareholders, report : — " That after referring to the various documents from one to ten, among which " is the Report of the Committee of this House in 1836, recommending the pur- " chase of the stock of the Private Shareholders on such terms as would ensure tnem " principal and interest, Your Committee are of opinion that the 17th Clause of " 7th Wm. IV. cap. 92, was intended to be applied wholly in payment of the in- " terest on loans authorized by the Act to indemnify the Provincial Government . " from any payment of interest in future, and the remainder to apply as a dividend " to the Private Shareholders. Under this impression, and from a careful exami- " nation of all the documents referred to, Your Committee recommend an Address « to the Queen, praying the Royal Assent to the Bill passed last Session ; and if " the Royal Assent be withheld thereto, they think it due to the Shareholders that " a Bill should be passed the ensuing Legislature restoring the majority of the «• Direction to the Private Shareholders, and placing them in the same position as in " 1836, and relieve the Legislature from the imputatif/n of a violation of private " rights and a breach of public faith which the assumption of the control of their ** property without the consent of the Private Shareholders will subject them to. " All of which is respectfully submitted. . " GEO. RYKERT, Chairman." The above report {vide Appendix to Journals of 1839-^0, Volume 1, part 2, page 1 1**) was adopted, and an unanimous Address to the Queen passed to carry out its provisions. ; . ,.,..,, .. . During 1841, the Act 4 & 5 Vic. cap. 48, the first Act authorizing the Govern- ment to purchase the Private Shares, and make the Welland Canal wholly a public work, passed the Provincial Legislature. The following statement is exhibited to show the actual amount of the yearly Bevenue derived from the Welland Canal when the first Act passed the Legisla- ture for its purchase, as well as the estimate then made for its future increase. On the 31st January, 1839, the Directors estimated the progressive increase of of Income from the Welland Canal, for : — 1839, at £10,000 1840, at £12,500 ',;,. 1841, at £15,000 1842, at £18,000 It appears that the actual amounts realized in each of those years were severally £12,823, £20,228, £20,792 and £24,976 (having exceeded the estimates in thia short space of time £23,319). The Directors remark: — "That the estimated " progressing increase of Income is founded upon the Receipts of the Erie Canal, ** and we can see no good reason why the geographical position of this Canal " shoula not realize the same result." (See Appendix to Journals of 1839-40, Vol. 1, part 2, p. 19 * *.) , , In 1841 the Royal Assent was given to the Act of 1839, and the Legislature authorized a Grant of £500,000 to complete the work, by the Act 4 & 5 Vic. cap. 28. Every Grant heretofore had been closely contested. In 1834, Mr. Justice McLean, then Speaker of the Legislative Assembly, (and always a prominent supporter of the Welland Canal,) carried the Bill by his casting vote, and without individual security it could not have been passed. This year, on a division, only two out of eighty Members opposed this compara- tively large expenditure. The Government now assumed the entire control, (see Act 7 Vic. cap. 34,) and commenced the enlargement under the superintendence of the Board of Works. The Expenditure, during the last four years, was as follows : — Amount derived from Tolls, from 1837 to 1840, inclusive. ' ' ■**^'^ " ' Tolls of 1837 ... £5,521 4 4 Hydraulic Rents... £697 14 10 £6,218 19 •do 1838 ... 6,723 4 11 do ... 330 12 11 7,053 17 do 1839 ... 11,710 9 7 do ... 1,112 2 10 12,822 12 do 1840... 19,129 12 2 do 1,098 6 1 20,227 18 2 10 5 3 £46,223 7 8 Expenditure under the Act of 1837, 7th Wm. IV. from 1837 to 1840 £114,467 Total Expenditure and actual Cost of the Welland Canal to the '" ^' ^ '''"'^' Company, (as appears by the Official Reports) £565,986 The following Statement gives the Cost of the Welland Canal to the public:— vf-;- 8 111! Hi II t 8tate»ient of the Beveral Amounts Paid to the Welland Canal Company, by the Provincial Government of Upper Canada, under the 7th Wm. IV. cap. 92, ' in 1837, which converted ail Loans into Stock, up to the time of the pur- chase. Act 7 Geo. IV. cap. 20, in 1826 £25,000 17, in 1827 50,000 11, in 1830 25,000 18, in 1831 50,000 ^.;„: 54, in 1833 7,500 39, in 1834 50,000 02, in 1837 68,144 i , , Act 8 do do Act 11 do do Act 1 Wm. IV. do Act 3 do do Act 4 do do Act 7 do do - n t 1 . ..; ..-..,.;'... '..... . . X275,644 Amount Debentures to private Shareholders in 1843 117,800 Amount for which the Province has issued Debentures to date... £393,444 From the above it appears that the construction of the Canal, up to 1840, had cost the Company £565,986 Although the public pay in 1843 only 393,444 Passing over the period during which the Welland Canal was under the manage- ment of tne Commissioners of Public Works, it may be well to submit a Statement of the several Legislative Grants from 1841 to 1851 : — ^ , Act 4 & 6 Vic. cap. 28, in 1841 £500,000 Act 9 do do 63, in 1846 280,000 ActlO&ll do do 34, in 1847 50,000 Act 11 do do 9, in 1848 68,155 From 1849 to 1851, vide Public Accountd.; 97,017 995,172 12 4 To which add expenditure under different Acts up to 1843......... 393,444 2 9 11 5 yyr Mates the total Public Debt ....... .......'i....... £1,388,616 12 94 The Canal is increased to the following dimensions: — Forty-five feet in the bot- tom, nine feet six inches deep, with a slope of two to one, leaving a surface of eigh- ty-five feet, but ten feet in depth ia provided for in the summit levels. The Locks Numbers one and two, below St. Catherines, those at Port Colborne and Port Maitland, and the one erected this year (1852) at Allanburgh, are 45 feet wide by 200 long between the meters. The remainder from Thorold to St. Catherines are twenty-six and one-half feet by 150. When the dimensions of the principal Locks at Allanburgh are increased to correspond with the Aqueduct, the largest Steamers now navigating the St. Lawrence may approach to within four miles of each other between the two Locks. There are thirty-three Locks in all, with waste wiers on each level. The Aqueduct over the River Welland is 316 feet long, forty-five feet wide, and nineteen feet eight inches in depth, in order to serve either the Grand Biver or the Lake Erie level. All built of the most durable material and in the best manner. The following Tables are designed to show the actual amount of Capital expend- ed in each year, as well as the amount of Keceipts and Expenditure from 1841 to 1851, under the management of the Board of Works : — Fori For 1 For For For For 9 TABLE No. 1. • 1. Year. 1841 £ 1842 84286 1848 141393 1844 219979 1845 158449 1846 102146 1847 77288 1848 76774 1849 67453 1850 59225 1851 32763 Total 975172 2. Amount expended each year. 8. . Amount of Tolls. £ s. 20792 8 24975 11 16159 6 26184 12 19886 10 27410 1 80549 17 29064 7 34741 18 87925 17 61075 1 818714 17 d. 11 8 11 5 6 8 3 8 7 9 4. Amount on which Interest was payable. 5. Amount of Interest at 4 per cent* 995172 176219 1893 898198 7048 551647 t 15728 658792 20000 731025 20000 807799 20000 875251 20000 984478 20000 967241 20000 6. Amount paid to the Share- holders. 7285 7235 7285 7285 72Lu 7285 7235 7235 7285 7. Interest at 6 per cent 8098 9227 18861 18468 22516 26070 8. Total Interest 14288 22968 80883 86462 41090 4'>708 49760 63806 802528 * 4 per cent is estimated until it reached £500,000; the appropriation under 4th and 5th Vic being negotiated at that rate of interest, and 6 per cent on all payments thereafter. From the above it appears, the Income from Tolls has exce«ded tha Expendi- ture for Interest some £16,000. TABLE No. 2.— (FUTURE PROSPECTS.) {'.ii-ti 'jy, Estimated Income. For 1852 £ 58500 70200 84240 101090 121805 145566 8. d. For 1858 £ 178180 209616 251688 1. d. For 1858 For 1859 For 1854 For 1860 For 1855 Gross Income for 9 years. . . For 1856 1215286 For 1857 Expenditure. :i:: *.i..^ Amount of Proyincial Debentures issued in 1843, for the purchase of the Canal .-. Additional amount for private Shareholders . In 1852 — Amount paid on account of Interest. do — ^4^mount still due thereon do — Expenditure under Board of Works . . < Total amount of Capital for which Debentures have find will ib i8sued£ The amount of Interest to be paid annually on £600,000 under the Imperial Loan Act of 1841, at 4 per cent. ....> i i.<,.i.. .;....... CbrriediMir .,vV,.i..... *...'..... £ a ■ ,. ■■^.:.. ' . v-/-"" /-'^ ■;■•■■ -^r'\M>- ,.■■•'"■ ^' . 898444 2780 107878 65118 995172 1568882 20000 itpmo n Expenditure. — ( Continued.) lit i i' BrmigM orer £1,068,882 under Provincial Acts, at per cent 180,118 for future improvements thereon, at same rate of Interest £1,700,000 Total Capital and Interest thereon £ Annual Management and Repairs ■ •■ Total Expenditure £ The average gross Income per year of estimated Income, is ''• ' Leaving an excess, for each year, from 1851 to 1800, of. . £ £ 20000 08882 8107 8. 91999 0001 08000 185020 37O20 d. The calculations on the future prospects of Income are based on the same princi- ciple as the Estimate of 1839, although more clearly defined. The ratio of progress sustained on the Erie Canal for fifteen years prior to 1849, and the Provincial Work* of Canada for the five years they have been in operation, is found to average twenty percent, per annum. (See Report of Commissioners of Public Works, for 1850, in Appendix to Journals of Assembly for 1851, (Letter T.) In 1851, the Tolls were estimated at £48,750, upon the assumption that one-half of the Western trade between Lake Erie and the Atlantic would be attracted through this Canal. The relative porportion of Trade has not been realised, although the Income has increased from £37,625 in 1850 to £51,146 in 1851, mak- ing an increase of £2,396 over the Estimate, and £13,531 over the preceding year. From this data we may rely with some confidence upon the Estimates for the future keeping pace with the past. The cost of management and repairs are taken from the Returns of Samuel Keefer, Esquire, Chief Engineer of Public Works. The revenue of this Canal has now reached so large an amount, and has, from year to year, been so steadily increasing, that the Income may be calculated with an approximation to certainty. The average of nine years is selected because, in 1852, the Tolls reached £45,000, nine years after the purchase in 1843. An additional Towing Path is about being made between Thorold and St. Catharines. The Locks are to be lit with Gas, and the Canal deepened throughout to ten feet water. '' These improvements oerfected, with a never failing supply of water furnished by Lake Erie, will make this Canal stand unrivalled not only for utility and beauty, but it will establish a fountain of wealth, from which a never failing source of revenue will flow for all time to come ; for which the public, be it remembered, are wholly indebted to the early enterprise of the private Shareholders. ... Ill conclusion. Your Memorialist begs leave to represent that the preceding nar- rative has been compiled from Official Records, proving First. That at the commencement of this undertaking every inducement was- held out to Foreigners to become Shareholders. Second. That serious losses were sustained by those Shareholders residing in the United States in reserving Stock for the English market, then calling in large advances in so short a time, many having paid up the whole of their Stock by the 1st October, 1826. (See Petitions of Shareholders of 1839, and Returns of In- spector General, in 1852, coupled with the Report of 1845.) Third. That the work was constructed with greater economy and in less time 8. d. It than any other similar undertaking in America, notwithstanding it was purchased by the public at £172,542 less than its cost. (See supra, page 7.) \.. Fourth. That the Income received from Tolls and increase of Customs Dutiei, created by its construction, far exceeded the amount of Expenditure, so that the Canal in reality never cost the public a single farthing. Fifth. That the public have gained an incalculable amount of wealth by the in- creased value of land and property, by the reduced price of transit since 1829. Sixth. That the efforts made, the embarrassments, casualties, and hazards incurred, in completing this undertaking, were far greater than any equivalent received. Seventh. That the first proposal to make the Welland Canal a Public Work, originated with a Committee of the House of Assembly in 1836. The conditions then stipulated were adhered to in the Acts of 1837 and 1841, and more clearly specified in the Act of 1843, which repealed at the same time all former Acts, and deprived the Shareholders of the option of retaining their interesi in the Canal under the Act of 1837. / ' ' > . It is obvious the sixth Clause of this Act was intended to carry out the principle laid down by the Committee in 1836, as the one on which the transfer of the Canal to the public should be effected, viz : — " Ultimate indemnification to the Private " Shareholders, with due regard to the interest and convenience of the public, " and is in fact the agreement under which the respective parties are bound. Had the Income from the Canal in 1843 reached a sufficient amount to pay the Interest then due, it is clear Debentures would have been issued for the amount ; but as it did not, the time was prolonged, until the Revenue from the Canal reached a cer- tain fixed sura. All the Shareholders ask, is that the original agreement may be fully and fairly carried out. In 1843, when the Canal was sold, the Directors re- ceived the amount of the original paid up Capital, in full, not indeed, in Cash, but in Debentures. No indemnification was then made for arrears of Interest on the Company's outlay since 1828, but it was conceded that the Company were lawfully entitled to these arrears at that time, and had the Government then paid up this back Interest, the transaction would have been closed ; but the Company agreed to wait until means for this payment should be afforded by the Canal itself. In 1852, the Canal Revenues became sufficient to enable the Government to meet these arrears from that source ; meanwhile, the Interest had accumulated to form a debt, up to 1843, of about £106,000. Nine years having elapsed before this debt could be liquidated, the Company expected, as a matter of course, that In- terest for this period, at the ordinary rates, would have been paid, as well as the Principal. In private transactions of a like nature, it would be clearly understood that Interest becomes due upon money owing from the time the debt or obligation is incurred, and to withhold it would be considered unjust This Debt was incurred, and the right of the Shareholders thereto adnaitted, in 1843; they consented to postpone the receipt of the Money until a certain future day> but then expected to receive the principal sum which had accrued for Interest up to 1843, with lawful Interest thereupon up to the day of final settlement. The Sxth Clause of the Act of 1843 provides, that the Shareholders should re- ceive an equivalent for this amount, whenever the Tolls from the Canal should jus- tify it, as the Certificate hereunto appended will shew.* This payment has been withheld, contrary to the terms and spirit of the agreement and of the Act itself, consequently the Shareholders have good reason to feel dissatisfied. *»^*i),i3» From the foregoing statement, it is clear that ihe misunderstanding respecting the Claims of the Welland Canal Company, has arisen from the circumstance, of * See infra, No. — , for a copy of the Certificate isfe-ued by Government under the Act of 1848. t Sm also, the Legal Opinions annexed, in regard to the true interpretation of that Statute, ^yw^j:^^ T« .'i! i, ; the Capital Stock having been paid in Debentures (bearing Interest,) in 1843, in- stead of in ready Money. These Debentures were intended, of course, to be nego- tiable at par, or in other words, to be equivalent for so much Cash. Had Cash been received in lieu ef Debentures, it would have been invested in the ordinary way, and have yielded similar Interest to that now paid by the Province, on the Debentures, but such Interest not being paid by the Province, the fact of its pay- ment would not have been in any way confounded, as it has been, with the present claim of the Shareholders. Their demand is, not that they should continue to re- ceive Interest on the Capital Stock, subsequent to 1843, for the Capital was whol- ly pud off in that year, and the Shareholders have no further concern in it, but it is uiat they should be allowed Interest, from 1843, upon the amount admitted to be due for back Interest, up to that time, or a suitable equivalent therefor, pursu- ant to the Sixth Clause of the Act, 7 Victoria, cap. 34. Your Memorialist, therefore, begs Your Excellency will be pleased to authorize the issue of Debentures to defray this balance, and as in duty bound will ever pray. In behalf of the private Shareholders of the Welland Canal Company. WM. HAMILTON MERRITT, i^uebec, March fith, 1853. :i i'i^ if ■ - No. 2. To His Excellency the Right Honomble James, Earl of Elgin and Kincardine, K.T., Governor General of British North America, and Captain General 1^ ' and Governor in Chief in and over the Provinces of Canada, Nova Scotia, 'if Brunswick, and the Island of Prince Edward, and Vice- Admiral of the same, &e., &eM &C. The Memorial of the undersigned, Shareholders in the Welland Canal Company, respeetfuUy sheweth — That under the provisions of the Ac^ incorporating the Welland Canal Company , passed in the fourth year of the Reign of King George IV., (1824,) Your Memorial- I8t8 became Shareholders in the Capital Stock of this Company. The Government of the Province of Upper Canada also advanced, from time to time,- under the authority of various Acts of the Legislature, by Loan and in Stock, considerable sums of iHonej in aid of the work. ' . • That hj an Act of the Parliament of Upper Canada, passed in the seventh year ef the Reign of Wliram IV. chapter 92, (1837,) the Legislature deeming it expedi- ent to convert the various Loens made to the Company into Stock, and to authorise the subscription, by the Government, of a further amount of Stock to the extent of £245,000, it was provided that the Capital Stock of the Company should he increased to £597,300, divided into 47,784 Shares of £12 10s. Od. each, whrreof the Government of Upper Canada should hold 36,360 Shares, the Government of Lower Canada 2,000 Shares, and the private Stockholders 9,424 Shares, and that the Government should have the right to appoint thiee out of the five Directors authorized to conduct the af&irs of the Company ; thereby giving the control to the Government, who thenceforth became the larger proprietors. That with a view, however, to reward as well as to protect the interests of the Private Shareholders who had risked so much in the promotion of so great an enter- prise,, considered by many, for years, a wild and visionary scheme, although it has proved of vast publio importance, it was provided that the Tolls received upox.^ the Canal, after deancting the amount required for the charges then made thereon by law, 19 ehould first bo annually applied to dischnrgo the intercsc of £24.5,000 then authorized to bo advanced, and that the remainder of the Income to be received by tho Company should be divided amon^ the Private Stockholders until it should equal six per cent, on the amount of their investment. This provision, giving a prefer- once to the Stock held by private individuals over that subscribed for by the Go- vernment, was both equitable and just, because the public were indebted to the enterprise and sagacity of these gentlemen, who had not only perilled so much in advancing what ought to have been a great national undertaking up to that point at which tho gigantic character of its results became apparent, but had by their energy and perseverance, conducted their great project beyond the chance of failure. That by an Act passed by the Parliament of Canada in the 6th year of Her Ma- jesty's reijjn, (1839) entitled "An Act to authorise the stock held by private parties in the VVellttnd Canal to be purchased on behalf of the Province" after reciting that it was desirable to place the Welland Canal under the exclusive control of the Govern- ment, and for that purpose to provide for tho purchase from the private Stockhold- ers the Stock held by them in that work, amounting to £117,800, such a number of Debentures were authorized to be issued to the several Stockholders in tho Wel- land Canal as should bo equal to the amount of stock held by them (such Deben- tures to be redeemable in twenty years from their date and to bear an Interest of 2 per cen ;. per annum for the first two years, 3 per cent, per the third year, fo'*" per cent, for the fourth year, five per cent, for the fifth year, 6 per cent, for the sixth and following years ; audit was thereby further provided that whenever tho Tolls collected on the said Canal should annually amount to £30,000, other Debentures should be issued to the original Stockholders or their legal representatives for such sum aa would make up 6 per cent Interest upon the amount of Stock by them subscribed and paid for, from the time tho same should have been actually paid in. ■ That from the passing of this Act the affairs of the Canal came under the man- agement of the Government, and the Stockholders ceased to have any control there- in. That the Legislative agreement thus entered into between the Government and the Stockholders clearly guaranteed that ultimately the latter should receive back the full amount of the principle and interest upon their original investment. That by an Act passed in the seventh year of Her Majesty's Reign, after recit- ing, amongst other things, that the circumstances contemplated by the last in part recited Act, whereby the Private Shareholders were to have received Dividends from the Income of the Canal, had not arisen, and could not then arise ; and that it was expedient to repeal the said Act and to make other provision for the payment of such Stockholders ; the said Act passed in the fifth year of Her Majesty's Reign is repealed, and it is thereby provided, that Debentures, bearing date tho Ist of January, 1843, to the amount of £117,800, and bearing Interest at the rate of five per cent, if payable in London, and six per cent, if made payable in Canada, should V> issued to the said Private Stockholders. That in accordance with the provisions of the former Act thereby repealed, it is further provided by the sixth Section of the last Act, That so soon after the completion of the said Canal as the Tolls received thereon for any one year should amount to £^15,000, there should be charged upon the Consolidated Revenue Fund thereof an amount equal to six per cent, per annum on the Private Stock subsoribed, from the time the same had been paid in, for the benefit of the Private Stockholders aforesaid, or their legal representatives. That by the seventh Section of the said Act it is further provided, That it shall be lawful for the Governor in Council, at any time after such receipt of Tolls, to direct to be issued to such Pri- vate Stockholders, or their legal representatives, Debentures for the amount of their respective claims, bearing^ Interest and payable in the same length of time u m I ill' I , i i after their issue, and at the same places respectively, as if the same were issued for the principal sum invested by the original Stockholders. That by an Act passed in the 8th year of Her Majesty's Reign, T 1844,) entitled, An Act to amend the Act for purchasing the Stock in the Welland Canal held by Private Shareholders, after reciting, amongst other things, that the Shares in the Welland Canal Company were by the Act of Incorporation declared to be of the amount of £12 10s. Od. currency, and were issued at that price in all parts of the Continent where the same were taken and subscribed ; and also, that certain of the Shares were taken and subscribed in England, and that the subscribers paid in England for each Jhare £11 5s. Od. sterling money, and received certificates de- claring the subscribers entitled to the number of Shares mentioned therein at the rate of £11 5s. Od. sterling, per Share, and that inasmuch as the Welland Canal Company received the benefit of the exchange, the subscribers having paid the amount of £11 53. Od. per Share in London, the Company had received more than £12 10s. currency per Share. And also, that the said sum of £117,800 was intended to repay the Private Stockholders the full amount advanced by ; ,em, and that Debentures had been issued accordingly to the subscribers who paid £12 10s. Od. per Share, and that such sum was inadequate to pay the subscribers who had paid £1 1 5s. Od. sterling per Share in London, and that it was just that all the subscribers should be paid for their respective Shares in full, it is provided that the further sum of £2,779 18s. 9d. currency, with Interest thereon from the 1st. day of January, 1843, should be appropriated to supply the deficiency in the for- mer Grant arising from such difference of Exchange, thus shewing still more clearly the scrupulous nicety with which the Legislature regarded the claims of the Stock- holders tc be paid their respective Shares in full. That the Tolls on the Welland Canal for the year ending first January, 1852, amounted to considerably more than £45,000, whereby an amount equal to 6 per cent, per annum, on the private Stock suljscribed from the time the same has been paid in for the benefit of the private Stockholders aforesaid, or their legal repre- sentatives, became chargeable upon the Consolidated Kevenue Fund of the Pro- vince, and the said private Stockholders and their legal representatives thereupon become '•ntitled to receive Debentures for the amount of their respective claims, bearing Interest, and payable in the sam j length of time after their issue, and at the same places respectively, as if the same were issued under the provisions of the fiaid Act passed in the Seventh year of Her Majesty's Reign, to the private Stockhold- ers aforesaid for the principal sum invested by them. That, on the 26th of Janua- ry, 1852, an application was made on our behalf through the Provincial Secretary^ soliciting that Your Excellency might be pleased to authorize the issue of the De- bentures in conformity to the said Act. That on the 16th of February, then next ensuing, the Provincial Secretary repb'r^ that His Excellency having referred inch conmunication for the opiuion of the Law Adviser of the Crown, is advised that the amount of back Interest to which the private StOv^kholders are entitled on their stock under the Act aforesaid, must be computed up to the 1st January, 1843, only, at which period Debentures had been issued for the principal. That Your Memorialists having received Debentures accordingly for arrears of Interest up to that date, first January, 1843, without prejudice to their right to receive it up to the first January 1852, desire now respectfully to submit to Your Excelleuoy that they are advised, that according to the spirit, true interpretation, and meaning of the several Acts before referred, to, they are entitled to Inr ^rest up to the first January, 1852, being the period at which the Tolls on the Welland Ca- nal amounted to £45,000. Yo'ir Memorialists beg respectfully to submit, that, a payment in 1852 of 6 per MDt only up to 1843, upon the Capital Stock invested by them in 18k >, u not an 15 'M amount equal to 6 per cent, per annum on their Stock from the time the same waa paid in, which are the words of the Act under which they ciaim Interest to January 1852, when they became entitled to receive it. The Act does not provide that they shall receive Interest from one given period to another, but that having re- ceived their Principal they shall be entitled to receive an amount equal to the In- terest on their Capital at a future and indefinite period ; and the period having been indefinite at the time the Act was passed is the reason why no specific sum for the interest was named, because it was uncertain what sum would be equal to interest hereafter to become due. This sum was made payable upon the happening of a fu- ture event and a necessarily indefinite period. The Question therefore is not what was the Interest on a given " -^ount, at a given time to another given time, but what would be the amount upon tht: happening of an uncertain event equal to the Interest upon a certain sum, paid at a given previous and certain date ; and our Memorialists submit that it is a question of arithmetical calculation, more for an Actuary than fur a Counsel learned in the law, that the question is not whether the arrangements are more beneficial for the Government or for the Shareholders, but what theproperconstruction of the agreement really is. If however, it were important to consider the character of the agreement, it is plainly one most advantageous for the Government. The Tolls have steadily increased at the rate of 20 per cent, per annum for several years past, and according to the estimate of increase, the average Tolls between 1852 and 1862 will be £131,000 per annum : conseqently, had the Siiareholders retained their Stock and the consequent right to a dividend in proportion to their capital invest- ed, their position would have been far more advantagecns than the mere receipt of Principal and Interest at the end of nearly thirty years will place them in, as will fully appear from the accompanying statements from official sources. The Canal was commenced in 1824, and from the scarcity of Capital in Upper Canada, as w^ell as from the opposition given to the enterprise from various causes, but chiefly on account of its magnitude as compared with the resources of the Province, only £3,712 lOs. Od. was subscribed in Upper Canada, and the Province is chiefly indebted to Foreigners for its early progress ; and it would be unworthy of a British Colony to reap such large advantages from their enterprise, and allow them to be the only losers. And it is an important consideration that those Stockholders paid their Subscriptions under an express pledge contained in the Law of lu25, (6 Geo. 4, chapter 2, section 15,) " that the Government would not take the posses- " sion and property jf the Canal unless they paid to the Stockholders the sums " advanced by them, and twenty-five per cent, thereon in addition, nor unless, be- •• sides these payments, it should appear that the Shareholders had actually receiv- " ed from the Tolls in every year, on an average, 12^ per cent, on their Stock." It is, therefore, respectfully submitted, that if there should be any doubt still entertained of the strict construction of the law, such doubt should be cast in favor of the Foreign Creditor. Your Memorialists, therefore, pray that Debentures for a sum equal to the In- terest from 1843 to 1852, be issued in conformity with what they respectfully sub- mit to be the legitimate construction of the several Acts of the Legislature relating to this important subject, or if the Executive Government decline the responsibility of settling this point at once in favor of the ^'aimants, that Your Excellency will be pleased to cause the matter to be submitted to the Legislature at the coming Session to determine the point under consideration. And your Petitioners, as in duty, bound will ever pray. JNO. ANTHON, / /^ nu ♦. Executor, &c., of JOHN HONE, deceased, City of New York. , .eT^?i'tK%t HANNAH MACLEOD, CHARLES YATES, and others, &c., &c. New York, Ist August, 1852. '.*j(>-.-.-,f.-. »Jf 10 ■«-r ■■■■t:- 1 I ■ . . No. 3. '-■ • ^' •■-;• -'->- (Copy.) Quebec, 26th January, 1852. - Sir, — I have the honor to acquaint you, for the information of His Excellency the Governor General, that under the provisions of the 6th Section of the 7th Vic. c»»p. 34, the private Shareholders in the Welland Canal Company are entitled to receive Debentures for the back Interest, at the rate of six per cent, per annum on the amount of their Capital Stock, from the time it was paid in up to the time the Tolls on the Canal for any one year shall amount to the sum of Forty-five thousand pounds. That period has arrived : the Income on the Welland Canal for the year 1851 exceeds £51,000, and the Tolls near £50,000. I, therefore, most respectfully solicit, on behalf of the private Shareholders, that His Excellency may be pleased to authorize the issue f^'' the Debentures in con- formity to the said Act. I have the honor to be, Sir, ' ' ' "., ; ' Your obedient Servant, >; : I.: (Signed,; WM. HAMILTON MERRITT. Hon. A. N. MoRiN, ;- Provincial Secretary. . ^ ' . • ''■li (:■ iif ■ i y:''r/ ■"■■ - No. 4 ■ ,,;■ '■:■:;.., » i ' ' . ■ - . , " . .. - ' " .' Secretary's Offi^is, . - ':','' ' Quebec, 16tL February, 1852. Sir, — I have the honor, by command of the Governor General, to inform you, that His Excellency has had under his consideration in Council your letter of the 26th ultimo, requesting on behalf of the Private Stockholders of the Welland Canal Company, that Debentures may be issued for the bade Interest, at the rate of six per cent, per annum, on the amount of their Capital Stock, in conformity ■with the Act 7 Vic. cap. 34, the amount of Tolls on the said Canal, for the year 1851, having exceeded the amount specified in the sixth Section ot the Act in question, vir., £45,000. His Excellency having referred your communication for the opinion of the Law Advisers of the Crown, is advised that the amount of back Interest to which the Pri- vate Stockholderw are entitled on their Stock, under the Act above cited, must be computed up to the 1st January, 1843, only, at which period it appears that De- bentures were issued under that Act to the Stockholders, for the Principal, or amount of their Shares, bearing Interest at six per cent, per annum, from that date. The amount of back Interest payable, up to the Ist January, 1843, appears to be £107,343 4s. Id., and I have now the honor to request that you will place yourself in communication with the Honorable Receiver General, who has received the neces- «ary instructions upon the subject. i^ i, I have the honor to be, Sir, ^^ i. » ' ' Your obedient SeiTant, ^^ A. N. MORIN, :' 'vf^'rii '"> '-^f '"t*. ■ ■- ; '' IVo. 5. Quebec, 20th February, 1852. Sir, — I have the honor to ncknowleclge the receipt of your coinraunication of the 16th instant, informing me that Ili3 Excellency the Governor General has been advised by the Law Officers of the Crown -that the Shareholders in th6 late Welland Canal Company are entitled to back interest only up to the 1st January, 1843, on the^round that at that time they were paid the principal of their investment. If this be the true legal construction of the Act, instead of rendering the Share- holders a service by obtainingit, I have done them an injury, inasmuch as the 2nd Clause of the Act of 1841 secured to them the back Interest when the Income froirj the Canal amounted to £30,000 ; this amount was real!" d in 1847, consequently by this in- terpretation of the Act of 1843, the Shareholders have lost four years Interest on their Cdpital. Having been instrumental in inducing. the original Shareholders, in rm earlyday, to subscribe and invest their Capital in this undertaking, I have felt it my duty, from public principle, as well as a strong private feeling in their behalf, to secure them the full amount of Interest on their outlay, and have kept them duly advised, from time to time, of the progress of the Canal, assuring them it would provide the means fully to remunerate them; consequently very few of the original Sharehold- ers have transferred their Stock. With this feeling, it is not probable that I could, on the part of the private Shareholders, have assented to the Act, had it not covered ■ the Interest during the entire period ; but convinced that it did and would be very near an equivalent for the non-payment of the Interest of 1843, it received my hearty conourrence. That the Government also entertained the same opinion, is apparent from the tenor of the Certificates issur-' at the time. The 6th Clause referred to, defines the commencement and termination of this period, — from the time the money was paid in, to the time the Tolls amou ited to £45,000. The Certificates then issued under that Clause, and all'up to 1847, . clearly and expressly point out what the holder thereof is entitled to receive. They are made out in favor of the Shareholder or Order, who is to receive legal interest on (the amount of Capital,) from and after (the date when the Capital was fully paid up), payable in Government Debentures so soon as the Tolls amount to the sum heretofore mentioned. Language could not be more explicit, or more clearly express the meaning and intention of the Act, than those Certificates which are nearly a transcript of the said Clause ; and third parties holding them, will feel entitled to the full amount they cover. BeKeving, further, that when the first Contract for purchasing the Canal was entered into in 1839, it was the intention of the Legislature to pay the full amount of Interest, and that the only reason it was not paid in 1843, was the insufficiency of the Tolls to meet it, the Government having only received, the preceding year, £23,946 10s. 6d. That the 2nd Clause is a separate and distinct part of the Contract, referring to the payment of the Capital only ; the 6th Clause to the payment of the Interest. Had this Capital been paid in money (instead of Debentures on which the Govern- ment pay the annual interest), it would have been closed at the time, and no attempt would have been made to deduct the Interest on that Capital from the Interest due in 1851 under the latter Clause.. For these reasons I beg leave to solicit His Excellency on behalf of the private 18 Shareholders to refer the Question of Interest, under the Clause referred to, to the decision of the ensuing Legislature. ; - s, ' I have the honor to be. Sir, •; - ^ . '.• .. - « Your obedient Servant, (Signed,) WM.' HAMILTON MERRITT. The Honorable A. N. Morin, Provincial' Secretary. ' . ■ '> I II No. 6. •,'^' ' Secretary's Office, Quebec, 25th February, 1852. Sir, — "With reference to your communication of the 20th instant, on behalf of the private Stockholders of the Welland Company, I have the honor to inform you that the Governmc^nt will be glad to receive from you any evidence which it may be in your power to oiFer in support of the claim of the Shareholders; and that no objection will be made to the production of all papers connected with the case, if applied for by Parliament. I have the honor to be, Sir, ," ' - * • Your most obedient Servant, ' :-. /'::r%v.-. ■•*••- / -. A. N. MORIN, ■ " ■''v'-:/;^ '.! •,-.-■,.,-,> "^ : ■ V _ Secretary.- The Honorable ' " *^ Wi H. Merritt, &c. &c. &c. ' V . ; • i II' : ' :: I: y^ Quebec, 5th July, 1852. Sir, — A question having arisen as to the period ta which the private Sharehold- ers in the late Welland Canal Company shall be entitled to Interest on their original investment, I beg leave on their behalf to submit that the 6th Sec. of 7th Vic. Cap. 34. (herewith submitted) is conclusive on that subject. (For clause, vide infra, No. 9.) There is nothing in the letter or spirit of the above ^hich tends to the conclusion, that after the first day of January, 1843, the private Shareholders would be en- titled to double Interest. But I contend that the act expressly declares that "as soon as the Tolls shall amount to £45,000, there shall be charged on the Consolida- ted Fund, a sum equal to six per cent, on the Capital Stock from the time the same was paid in;" now the Question is, what is a sum equal to the Capital Stock from 1828 to 1843 ? Why did not the Act state the exact sum to be then charged upon the Consolidated Fund, as in the case when the Capital was to be repaid, which was fixed at £117,800 ; clearly, because it was a sum which could not then be defined, it was left as a sum to be computed at a future time, and the fair inference is, that it was the intention of the Government that the Shareholder should receive first and last a sum equivalent to interest on his Capital, from the time it was paid, whenever the Tolls from the Canal itself would furnish the means. He received his Capital, and Interest thereon from the year 1843. What sum is equivalent to the Interest due to him from 1828 to 1843 ? Unquestionably not the bare amount of simple In- terest on hie Capital during that time, paid nine years after, but such a sum paid in to the 1852, as shall be equal to six per cent, on the Capital Stock **from the time it was paid in," to 1843. The intention undoubtedly was to renay the Capital with Interest from 1828, but this will not be accomplished if merelv simple Interest to 1843, is-paid in 1852. • ' ^ Believing that -the true spirit and meaning of the- Act admits of but one construc- tion, I consider it unnecessary to trouble you with any further reference in sup- port of the claims of the private Shareholders. • . - * • . -. I have the ho nr to be. Sir, • "^ ' , • ' * , Yc .. obedient servant, WM. HAMILTON MERRITT. Honorable Attorney General, &c., &c., &c. • ii .•:.. IVO. 8. ■ • ' Quebec, 14th September, 1852. Sir, — I have the honor to enclose you, for the information of His Excellency the Governor General, the Memorial of Messrs. Bosanquet, Franks & Co., Agents to the Welland Canal Shareholders in London, placed in my hands by the Honorable George Moffatt, of Montreal, who has left for England. Also a copy of a letter from B., F. & Co., to Mr. Moffatt, of the 27th August, received by last mail, accompanying the opinion of Sir Fred. Thesiger and Mr. H. J. Bushby, of London. As this opinion fully corroborates what I have ever maintained was my intention in framing the Clause in the Act of 1841 and the Act of 1843, which ensured the back Interest to the private Shareholders, out of the Kevenues from the Canal, whenever it yielded a sufficient sum to pay it, I trust the legality of that Clause* will be no longer questioned, when borne out by the following facts : — The Welland Canal cost the Company, up to the day of sale, £565,986 13s. lOd. The public paid, including the Capital to* ])rivate Shareholders on 1st January, 1843, £393,444, effecting a saving of £172,542; at the same time the Revenues from Toll for 1842, the preceding year, had reached £24,975 lis. 8d., and it has now become ohe of tL:^ most useful Works, and promises to be one of the most fruitful sources of Reve.iue within the Province. Under these circumstances, I respectfully, submit that the legal opinions on the subject of the Interest due the Shareholders may be examined, and the Sharehold- ers paid what they conceive they are equitably and legally entitled to receive. .... I have the honor to be. Sir, , . . ^., . ' Your obedient servant, WM. HAMILTON :IERRITT. Honorable A. N. Morin, &c. &c &c 4 1 ryn t . ^0 --«_ ll J No. 9. (Copy.) London, 27th August, 1852. The Honorable George Moffatt, Montreal. * ' ' .' Dear Sir, — We annex a dupHcate of our- last letter, and have now the pleasure to enclose a copy of an opinion which has been given by the Attorney General, Sir F. Thesiger, and Mr. H.'J. Bushby, upon the further claims of the Welland Canal Shareholders, which, you will probably agree with us, should be presented with the Memorial. It appears to us to interpret the Act of ]?arlianient so clearly and un- answerably, that we entertain full confidence that the Provincial Government will no longer hesitate to concede the point in question, and we trust that you will give your assistance in promoting the claim. ■^ * ■' -. We are, dear Sir, ; . ♦ ", . ". * Your very obedient Servants, (Signed,) . BOSANQUET, FRANKS & CO. ' To the Right Honorable the Governor Geneialin Council. MEMORIAL OF the ENGLISH SHAREHOLDERS fn the WELLAND . . * CANAL COMPANY. We, the undersigned, acting as Agents for the English Shareholders in the Wel- land Canal Company, beg leave respectfully to draw the attention of the Governor in Council to the following Clause in the Provincial Act of the Canadian Legisla- ture of 1843, under which the Government is empowered to issue Debentures in payment of Interest on the Capital subscribed by the private Shareholders in that undertaking. The words of the Clause run thus: — "That as soon after the completion of the " said Canal as the Tolls received thereon for any one year shall amount to the '* sum of £45,000, currency, of this Province, there shall be charged upon the Con- *• solidated Revenue Fund thereof an amount equal to six per cent, per annum on **the private Stock subscribed, from the time the same has been paid in, for the ** private Shareholders, or their legal representatives." Under the construction put upon this Clause by the Government of Canada, the private Shareholders in the Canal have, in this year, 1852, received Debentures for the amount of simple Interest on their Capital, calculated' from the time it was paid in to the year 1843, in which year their Capital was repaid, being at the rate of about £84 per cent. • Your Memorialists humbly submit, that "this construction of the Clause is neither borne out by the wording npr by the spirit of the Act. The wording of the Act is extremely indistinct. For it will be observed, that while the point from which Interest is to be calculated is accurately fixed, the point to .which the calculation is to be made, is left quite undefined. It cannot be supposed that this omission is purely accidental. For if it was in- tended that Interest should be calculated only to the year 1843, from the time of subscription, there was no difficulty in the way of so wording the Act. The data also were at hand for calculating the exact sum to be paid, whenever the Tolls should reach the r mount of £45,000, if 1843 was really the point of termination ; and the total sura of Interest might therefore have been as clearly specified at the time of passing the Aci, as the amount of Capital then to be repaid was specified, viz., £117,800. Instead of which the indefinite words are inserted, "an amount 21 1852. asure to ral, Sir d Cnoal (vith the and un- ent will ivill give CO. • » iLAND • the Wel- Jovernor Legisla- itures in 3 in that Q of the t to the the Con- inum on , for the nada, the itures for was paid J rate of is neither ved, that the point t was in- time of rhe data the Tolls lination ; d at the specified; t amount *' equal to six per cent, per annum, from &c.," without fixing any point at which Interest should cea?e to run. No limitation having been fixed by the Act, it is submitted by your Memorialists that the Government are not at liberty to fix an arbitrary limit, according to their own construction, more especially as the tendency of the words is opposed to their interpretation. The indefinitcncss of expression made use of implies that contin- gencies were contemplated which could not then be defined, and the words are open to several modes of interpretation. Ist. The words *• an amount equal" {i. e. equivalent,) " to six per cent" on the Capital, even if January, 1843, if, the point at which 'Interest was intended to cease, imply compound Interest to that date. Now compound Interest paid an- nually would make a sum of £122 17s. 9d. of Interest, due at that date, upon every £100 of Capital, calculated from March, 1829. 2nd. Compound Interest calculated to 1843, but not paid down till 1852, is not equivalent to compound Interest paid in 1843, but would amount to the sum of £207 128. 3d. of Interest, on every £100 of Capital, if paid in 1852. 3rd. It cannot be denied that the words of the Act bear the construction, that six per cent, on the Capital should be calculated during the whole period, from the time of Subscription to the time of payment, viz., 1852 ; and compound Interest, at six per cent., from March, 1829, to January, 1852, would amount to the sum of £276 lis. 4d. of Interest, for every £100 of Capital. Under these difficulties with regard to the true interpretation of the Clause, your Memorialists respectfully submit that the spirit of the agreement entered into with the Shareholders in 1843, should be the only guide. Now the spirit of that agreement was, that upon relinquishing all claims whate- ver upon the Canal, the private Shareholders should be paid back their Capital with Interest at six per cent. ; and no one will contend that repayment of Capital in 1843, and Interest in 1852, is equivalent to payment of Capital and Interest at the same time. • Your Memorialists will not dwell upon the fact of their having relinquished a bonus of 20 per cent., to be paid to them whenever the Canal should be assumed . by the Government, which was provided by the Act under which they originally subscribed ; nor of their having been deprived, without their consent, of all control over their property by the Act of 1843. But feeling that they are putting forward only a just claim for the performance of a contract made with them by the Government of Canada ; and mindful also, that the Province is henceforth about to reap the fruits of the original enterprize and Capital of the private Shareholders,, by the receipt of large and increasing Re- venues from the Canal; they leave their case with confidence in the hands of the Government for decision, relying that the most liberal constriction of which the words of the Act are capable, in conformity with its spirit, will be the guide for in- terpreting the Clause in question. BOSANQUET, FRANKS & CO., ' , Agents to the Welland Canal Shareholders , • •- ':/ in England and on their behalf. London, 20th August, 1852. >'>;' -f •I • h; m ;. t II I '' S Fill' ,!■ I .. ^ No. 10. ■■'-'-: Quebec, 10th March, 1853. Sir, — The accompanying papers fiave been printed for the purpose of placing be- fore each Member of the Executive Council the Act under which the Interest of the Private Shareholders in the Welland Canal Company was purchased by the Government, the Case submitted to Counsel, and the opinions thereon in the order they occurred. ■ The case put by Messrs.. Bosanquet & Co. does not do justice to the Private Shareholders {vide infra. Letter G.) ; instead of refusing to provide the means to prosecute the work, the full amount of their Capital was paid in before 1829. The Act of 1837 didnot deprive the Shareholders of their Stock, which was retained as Capi- tal, securing six per cent. Interest thereon. The Act of 1839, assented to in 1841, contained a provision leaving it to their option either to retain or dispose of their Stock.- The Act of 1843 deprived the Shareholders of this option, but authorized the issue of Debentures at two different periods. . • ; This is the only point for consideration ; why did the Legfslature prolong the tiirie for payment of the Interest, then due, as acknowledged by the Act? — Because it was a part of the original agreement ; although the Act does not refer to this cause nor as a naturafconsequence either of the legal opinions, the records of the Provincial Journals of Upper Canada referred to in the Memorial I had the honor to present on the 5th instant, clearly points it out. The terms first proposed by the Legisla- ture in 1836, to purchase out the Private Shareholders, were ultimate indemnifi- cation, with due regard to the interest and convenience of the public. Thence it is evident, that whenever the Income frbm the Canal itself furnished the means, it was then the intention fully to indemnify the Private Shareholders. In 1838, the Tolls was only £6,723, barely sufficient to pay the Interest on the Capitdil, which was accordingly limited to two, three, four per cent., &c., &c., &c. In 1842, the Tolls had reached £24,976, which was sufficient to cover the an- r.aal amount of Interest on the Capital, but not on the Interest, If the Income had reached £45,000, it is clear the Act of 1843 would have authorized the i§sue of Debentures for the Interest then due, as well as for the Principal ; but as the Income did not, the time for issuing Debentures was prolonged, until the £45,000 was realized. After that period should arrive. Debentures were to i8sue,to cover a sum equal to BIX per c6nt. for each and every year, from the time the Capital was paid in, as an equivalent for the non-payment of the Interest due in 1843. This was the view entertained by the Government at the time, as the Certificates for this second issue under the 8th Clause prove. It is also the interpretation of the Act, by the highest legal authority in Great Britain, and in the United States — an opinion founded on the Act itself, without a knowledge of the original proposal — that the Income from the Canal formed the basis of the purchase. The Shareholders have never sought a departure from this proposition ; if the Go- vernment think the Income furnished from the Canal not yet suflficient to repay the balance still due, there is no doubt the Shareholders would prolong the payment upon the same principle as the Act of 1843. • Or. if it is considered that the case has not been fairly put, it can be referred for the Opinion of any Tribunal, in England, or Canada, with a case drawn up by the ! i <^9" Attorneys General, accompanied with their opinions thereon, as well as those here- with submitted, and the accompanying documents. • ' * , ^' I have the honor to be, Sir, ' '. Your obedient Servant, * Honorable A. N. MoRiN, - W. HAMILTON MERRITT. Provincial Secretary. P-S.— The CaHCwhich in my judgment should be submitted to a stranger, should contain a brief narrative of the circumstances j something like the within, W. H. M. ... . ..■^-.,. . ^ ' • . By an Act of the Legislature of Upper Canada, passed in 1824, certain persons who were named in it, together with such others as should subsequently become Stockholders, were created a Corporation aggregate by the name of the Welland Canal Company, and the necessary powers were given to this Corporation to con- struct^ two Canals ; one from the River Welland to Lake Ontario ; the other from the River Welland to the Grand River. The Stock was limited to £40,000 Provincial currency, divided iato Shares of £12 10s. each. The Act of incorporation expressly authorized other persons besides His Majes- ty's subjects to become Stockholders ; and provided that after the first instalment should be paid in, on the Shares, they should be assignable on the books of the Company. In the following year thia Act was amended, and it was provided by the amenda- tory Law that the Capital Stock might be increased to £200,000, and the size of the Canal enlarged so as to adapt it to the sloop navigation. It was provided also, that at any time after the expiration of fifty years after the completion of the Canal, His Majesty or His successors might assume the*possessioa and property of the same, on paying to the Company for the use of the Stockhold- ers, the full amount of the sums advanced by each, together with twenty-five per cent, upon the sums so advanced by them ; provided, however, that it should not be lawful for His- Majesty or His Successors to assume the property &c., of the Ca- nal, unless it should appear from the account laid before the Legislature, that the Stockholders had received every year, upon an average, tevelve and a half per cent, for every hundred pounds they possessed in the said concern. This last provision was important, it varied from one contained in the Act of in* ccg'poration in two respects, that authorized the Government to take the work at the expiration of thirty yeai's after it was completed, on the payment of the princi- pal sums advanced by the Stockholders, and twenty-five per cent, added, and it did not contain the proviso by which this right depended on the Stockholders having received on an average twelve and a half per cent, per annum x)n their Stock. That clause in the Act of incorporation was .repealed, and the provision in the amendatory Act was substituted. Under this express stipulation, by which, if the Canal should be taken by the Government as a Public Work, the Stockholders were assured of receiving not only the priucipal sums paid by them and twenty-five per cent, advance, but also a sum every year, equal on an average to twelve and a half per cent, a large amount of Stock was subscribed and paid for out of the Province. Ata subsequent period the Government relinquished altogether the right of takiug the Canal, and this part of the amendatory Act was repealed. ->m Various Acta were passed by the Legislature of Upper Canada at different times, by which the dimcnaions of the Cnnul and the Stock of the Company were increased. Further pawcrs were conferred upon the Company, and public aid was given by loan and by Government subscriptions to the Stock ; the Grovernment in regard to such Stock being expressly placed on the same footing as other Stock- holders. In 1837, these Government Loans were converted into Public Stock, by a law which authorized the Government to subscribe £245,000 to complete the work, and directed the Income to bo applied, after meeting existing, charges, to the pay- ment of the Interest on this sum, £245,000, and the remainder to be divided among the Private Stockholders, until it should amount to six per cent, on their investments. It also gave the Government 'the entire control of the work, by appointing three out of five Directors. The Stockholders subsequently complained, in a Memorial to the Legislature, that this was done without their assent or knowledge. The amount received from this work, from 1839 to 1842, inclusive, if it had been applied according to this law, would have paid six per cent, on the sum of £245,000 subscribed by the Government, and six per cent, on the investments of the Stock- holders, and would have left an annual surplus of £7,816 for Interest, or an addi- tional Loan of £100,000 if required to complete the work. In 1841, a law was passed by the Legislature of Canada to authorize the Stock held by private parties in the Welland Canal Company to be purchased on behalf of the Province. In the preamble, it was declared to be desirable to place the Welland Canal un- der the exclusive control of the Province, and for that purpose to provide for the purchase from the Private Stockholders in that^ work* of the Stock by them held, and which amounted to the sum of £117,800, and it was enacted that the Public Debentures might be issued to the several Stockholders for a sum equal to the amount of Stock held by them, redeemable in twenty years from the date, and befiring an Interest of two per cent, per annum for the first two years, and increas- ing one per cent, yearly until it reached six per cent, yearly. And that whenever the Tolls collected on the Canal should annually amount to £30,000, the Receiver General should issue other Debentures to the Stockholders in such sums as will make up six per cent. Interest upon the amount of the S£ock by them subscribed and j^aid for, from the time the Stock shall have been actually paid in, which Debentures shall be redeemable in twenty years, and bear Interest at the rate of six per -cent, per annum, payable half-yearly. It "was declared to be at the option of any Stockholders to accept these terma» or retain their Stock with the rights secured to them by the Act of Incorporation and other laws ; but after the Stockholders owning two-thirds in value of such Stock shall have accepted these terms, no Directors shall be elected on behalf of the Private Stockholders. This Act was repealed by a Law passed by the Legislature of Canada, 9th of December, 1843, (7 Vic, cap. 34), which made further provision to enable the Government to purchase this Stock. The Preamble refers to the Act of 1841. It also states that by the Act of 1837, provision was made for raising a Public Loan of £245,000, and that the Tolls received upon the Canal, (after deducting the charges then made thereon by law, or so much as should be necessary, should, in the first place, be applied to discharge the interest which should accrue on the said sum of £245,000,) should be divided among the several Stockholders until it should equal six per cent, on the amount of (( 25 liferent ly were aid was ment in Stock- y a law work, he pay- divided on their ag three islature, md been 245,000 B Stock- an addi- 16 Stock in behalf lanal un- ! for the em held, e Public il to the ilate, and i increas- aount to jkholders he Stock 1 actually ■ Interest terms^ or rporation e of such behalf of la, 9th of nable the t of 1837, the Tolls by law, or discharge )e divided amount of their Investments ; that by reason of difficulties, a small part only of that sum was actually raised, and the Canal was, therefore, not completed by means of that Loan ; that it was m progress of completion by means of other and larger sums of money ; that, therefore, the circumstances contemplated by that Act, under which the Private Stockholders were to have received Dividends from the Income of the Canal, have not arisen, and cannot now arise : and it was, therefore, expedient to repeal the provision for the payment of such Dividends. It also stated that it was represented to be for the interest of the Private Stockholders that the Law of 1841 should be repealed, and other provisions enacted in lieu thereof. After this long Preamble, the Act contained Clauses by which the Law of 1841, and the provisions of the Law of 1837 for the division of Income among the Private Stockholders, were repealed, and it was enacted that £117,800 should be charged on the Consolidated Kevenue Fund of the Province fur the benefit of Private Stockholders, to whom Government Debentures were to be issued for their Stock, dated on the first of January, 1843, redeemable in twenty years, and payable in England or Canada at the option of the Stockholder, at the rate of five per cent, per annum if payable in England, and six per cent, in Canada ; the Interest to bo paid on the first of January next ensuing the issue thereof, and afterwards, to bo paid half-yearly. The Governor was authorized to direct the substitution of the Debentures issued under that Law in lieu of Debentures already issued, on application of tho parties holding them. The Act contained also the following Clauses, viz. : — 6th Clause. **That so soon after the completion of the Canal, as the Tolls received " thereon for any one year shall amount to £45,000 there shall be charged upon tho ** Consolidated Revenue Fund thereof an amount equal to six per cent, per annum *' on the private Stock subscribed, from the time the same has been paid in, for the " benefit of the private Stockholders." By the 7th Clause, the Governor is authorized at any time after such receipt of Tolls to direct Debentures to be issued to those Stockholders for the amount of their respective Claims at the same rate of Interest as above mentioned for tho principal sum invested by them. The 8th Clause enacts, that in case any Certificates or other documents shall have been issued to any such Stockholders under the Law of 1841, the holder shall be entitled to the same payments or Debentures and none other than they would have been entitled to under this Act (of 1843) if such Certificates had not been issued. The private Stock was subscribed and principally paid as eariy as 1825 ; only 297 Shares were taken in Upper Canada ; of the residue, 5570 Shares were taken in New York, 24U in England, 40 in New Brunswick, and the balance in Lower Canada. In consequence of a large amount of Stock having been reserved for the English market and not having been taken there, the Shareholders in the United States were compelled to pay up their Stock earlier than they expected, and on two occa- sions they sustained the undertaking on their individual credit. The work has been carried on amidst all difliculties without interruption tocom- Sletion ; it is now in successful operation, of inestimable benefit, and in fact of in- ispensable necessity to a large and fertile and important part of Canada. The Tolls have been rapidly increasing, until they have exceeded the amount of £45,000 for a year, with a prospect of a further and further increase each succeed- ing year. 26 * Under these ciroumstancce an opinion is Bolioited to the folUowing questions : — 1st. Does the letter of the Act entitle the Slmrefiolders to claim Interest up to the time when the Tolls amounted to £45,000, that is to Juno 1852. 2nd. If not, what is the precise construction to be put upon the words, an amount equal to six per cent, per annum on the private Stock subscribed from the time tho same has been paid in. 3rd. Do those words imply such a sura as shall, being paid now in 1852, be equivalent to an amount of six per cent, per annum on tne Stock paid in 1843 when the Capital was discharged.. .. . WM. HAMILTON MERRITT. March 5th, 1853. (No. 104.) ^-■- This is to Interest at tl < urrency, fn • -being the i Canal Compi of the said C the sum of F sions of an A 1843. . B. Copy of CERTIFICATES issued by Provincial Government, under tho Act . ♦ of 1843. . > . , t. Witness. (J ;<*:. .-• •' II, t !♦; I': '4 Thb is the form of Certificate issued from the Inspector General's Department, prior to 24th June, 1845. ' . ' / JOS. CARY,Dy.I. G. 5. A (No. 32.) INSPECTOR GENERAL'S OFFICE, Montreal, (Canada,) 14th March, 1845. This is to certify, that Willrsm Dawson, Esquire, or order, is entitled to legal Interest at the rate of six per cent, per annum, on Eight hundred and seventy-nvo pounds. Provincial Currency, fvom and after the seventh day of February, 1827, — being, the amount paid for Se<'enty Shares of Stock held by him in the Welland Cansd Company — payable iu Government Debentures, so soon after the completion of the said Canal as the Tolls received thereon for any one year, shall amount to the sum of Forty-five thousand pounds, currency of this Province, under the pro- visions of an Act passed in the 3rd Session 1st Parliament of Canada, 7th Victoria, 1843. *.; ^ /vi.. /:,;. (Signed,) JOS. GARY, Dy. L G. Witness. (Signed,) WILLIAM DICKINSON. ^\,l f-r*>ii -^'w, ^'^-i^m ' ».'»«*), ■"i''< ■ Certified, JOS. GARY, Dy. L G. W' •tt-.tt /!-n-i'- '* -gwywlfir The first Certificate, in the form annexed, with the interlineation of the words *' up to l«t January, 1843" was issued on the 24th June, 1845. In which form, Certificates covering 782 Shares have been issued, and under former Certificates 8,642 Shares. JOS. CARY,Dy. LG. Opinions q, ,,.7 ^ ■{'1 1 ->(,. The sixth to the Wella *' after the C( ** shall amou '* charged uf " auuum on ." for the ber " tives." The quest calculated? of the Act, t made up to t to stop short tion which ii the language as the plain i of the Act I cannot f that a diffen as bearing 01 Stockholder annum, fron was the inte (No. 104.) , ^ INSPECTOIl GENERAL'S OFFICE, Toronto, (Canada,) 26th February, 1851. This is to certify, that George J. Mountain, D. D., or order, is entitled to legal Interest at the rate of six per cent, per annum, on One hundred pounds, Provincial < urrency, from and after the 2nd day of December, 1826, up to Ist January, 1843, • -being the amount paid for Eight Shares of Stock held by him in the Welland Canal Company — payable in Government Debentures, so soon after the completion of the said Canal as the Tolls received thereon for any one year, shall amount to the sum of Forty-five thousand pounds, currency of this Province, under the provi- sions of an Act passed in the 3rd Session 1st Parliament of Canada, 7th Victoria, 1843. (Signed,) JOS. GARY, Dy. I. G. WILLIAM DICKINSON. . ■ , Certified, JOS. GARY, Dy. L G. ii;* j*« •?' Witness. (Signed,) »>. Opinions of Eminent Lmoyers npon the proper Construction of the Act 7 Vic. cap. S'k (For a Copy of the Act itself t see itifi-a, No. 15, Appendix L.) •r- OPINION OF JUDGE MASON. The sixth Section of the Act of the Provincial Parliament of Canada, in relation to the Welland Canal, passed in the 7th year of Victoria, jprovides **That so soon *' after the completion of said Canal as the tolls received thereon, for any one year, " shall amount to the sum of £45,000, currency of this Province, there shall bo '< charged upon the consolidated revenue fund an amount equal to six per cent, per '' auuum on the private stock subscribed from the time the same has been paid in ." for the benefit of the private Stockholders aforesaid, or their legal rcpresenta- "tives." The question is proposed, up to what period is the six per cent, per annum to be calculated ? If we look at this Section alone without reference to any other part of the Act, the answer appears to me to be very plain. The calculation is to be made up to the time when the amount is charged on the consolidated fund. If it is to stop short of that time, at what time is it to stop ? Thero is nothing in the Sec- tion which indicates any other time, and no other can be inferred or presumed from the language employed, and the construction I have given must I think be adopted as the plain and obvious one, unless it is clearly inconsistent with other provisions of the Act. I cannot find any clause or provision in the other parts of the Act, which show that a different period was contemplated. The fourth Section has been referred to as bearing on this question. It provides for issuing Debentures to the private Stockholders for the principal of their Stock, bearing interest at six per cent, per annum, from the first January, 1843. And it is inferred from that Section that it was the intention of the Legislature to jimit debentures for the six percent, at that '«{%. ^8 r ■..■— — -WT --^..^^ - 'li it *^1 time, as otherwise the Shareholders would receive, for the portic3^ of time running between the passage of the Act and the time of payment, double interest. If such was the intention of the Legislature, it is very surpriring that they should have left it entirely as a matter of inference to be gathered from other parts of the Act, instead of expressing it in clear and unequivoctd terms. It would have been very easy to have stated that the amouut should be calculated from the time the Capital had been paid in until the Ist of January, 1843, or until the issuing of the Deben- tures for the Capital with Interest, and no dispute could then have possibly arisen. The absence of any such clause ander the circumstances affords strong if not conclu- sive evidence that no such limitation of the six per cent, per annum was contemplated. The coLitruction which • ould thus limit the allowance of the six per cent, pro- ceeds on the assumption that the Legislature meant that the Private Stockholders should, under no circumstances, receive more than what would amount to six per cent Interest ou their Capital, without any regard to the time at which such Interest mightr be paid. But such an assumption, it appears to me, is entirely gratuitous. It is not warranted by any thing •contained in the Act. The six per cent, per annum is not given as interest,, or by way of interest, b"t rather as a compensation or bonus for the loss of Interest. The word "Interest" does not appear in the Section. The, provision is for an amount equal to six per cent, per annum on the Stock from the time it was subscribed and paid, which is to be charged on the Consolidated Fund for the benefit of -the Private Stockholders. It is in terms a charge for their benefit, and not merely an appropriation for the payment of a debt for which the Government was equitably bound. The facts which appear on the face of the Act show, I think, that the constr jc- tioa I have given to this Section is not an unreasonable one. It appears from the Act itseU, including the Preamble, that the Private Stockholders bad paid their money towards the building of the Canal some time before the 7th year of William the Fourth, that is before the year 1836, — that at the time of the passage of the Act, no Interest ou the monies thus paid had been received, — that the Government had taken the Canal out of the hands of the Stockholders, and recognized the equitable claim of the Stockholders on them for the amount they had thus paid, by issuing Debentures to them for such amounts with Interest, but that as to the back Interest they postponed the payment of it for an indefinite period and until the revenues of the Canal should reach a sum considerably exceeding not only the principal sums advanced by the Private Stockholders, but also the sum of £245,000 in addition thereto, which the Government undertook to raise by Loan for the purposes of the Canal. Should the Canal revenues reach the ciura of £45,000, it would show tuat the enterprise had been successful, and be an omen of a much larger revenue in time to crme, the whole of which would be received by the Government. It is, therefore, not ii^nreasonable to suppose that the Legislature intended, if the Private Stock- holders yielded up all the prospective advantagei? to be derived from the revenues of the Canal, to dettl with them on liberal terms when, /er the Canal revenues should warrant it, and instead of merely paying theaa a sum amounting in the aggregate to simple Interest, to allow them an amount which, although it would not place them in the same situation as if they had regularly received their Interest, yiet would compensate them, in some degree, for their losses in being so long kept out of it. Such a supposition is certainly not an extravagant one. It vould be creditable to the Legislature, and would be in entire accv^rdance with the letter of the Act. It shows a reason for its being couched in the language used, and also that the ob- dciirity is only apparent, and arises from an erroneous view of the equities of the case, growing out of the fact that the Stockholders have since 1843 received Inter- est on the Principal. ^ Bat for this erroneous idea, the.j could be no question as to the meaning o> the sixth Section, and I think it is manifest from a perusal o'' the whole Act, including it u tt €1 (i-fi S9 the Preamble, that the obvious meaning is that which best accords with the intention of the Le^idlature. • I a'ii, therefore, of the opinion that the Stockholders are entitled, under the Act, to six per cent, per annum on the amount of Stock subscribed by them respectively from the time the same has been paid in, until the time when the charge is to be made on the Consolidated Fund. JOHN L. MASON. New York, 22nd November, 1P51. Bt CASE AND OPINION OF SAM. SHERWOOD, Esquire. The Private Shareholders of the Welland Canal made their Subscriptions in about 1826, and paid in their Subscription money, — the Government Stock eventually exceeded in amount that of the Private Stockholders, and the Government, in consequence, retained the control, — the Canal was completed and commenced iU operations. — no Dividends, however, were made, but the Tolls were received by the Government. Several efforts were made at different periods to give the Private Stockholders either a Dividend or an equivalent for the FuuC- they had invested. In 1843, an Act was prised, intituled, ** An Act to repeal a certain Act therein *' mentioned, and to make further provision for enabling the Provincial Government " to purchase the Stock held by private parties in the Welland Canal." At that period the principal of the Private Stockholders amounted to £117,800, which hwd been paid in about seventeen years previous, and at six per cent, per annum would, in sixteen years and eight months, have given cent, per cent., or £117,800. The apparent design of the Act was to fund the Principal and Interest, making £235,6'^0, to issue Debentures for one- half, payable in twenty years, six per cent. Interest, payable semi-annually ; or five per cent. Interest, if payable in England. And if the Canal should realize the amount represented, the Government would pay the other half, and accordingly the second section provides ** that tnere shall be " chained upon the consolidated revenue of this Province, for the benefit rf the " private Stckholders in the said Welland Canal, the sum of £117,800 currency of ** this Province, with interest thereon from the Ist day of Januuy, 1843." And the sixth Section provides for the payment of the other half, when the aggregate of the tolls should reach a given amount, vife : ** That so soon after the *' completion of the said Canal, as the tolls received thereon ior any one year shall ** amount to the sum of £45,000 currency of this Province, there snail be charged ** upon the consolidated revenue fund thereof, an amount equal to six per centum " per annum on the private Stock subscribed, from the time the same has been paid ** in, for tho benefit of the private Stockholders aforesaid, or their legal represent- "atives." The 7th Section provides, " that Debentures shall be issued to such Stock- '• holders for the amount of their respective claims, bearing interest and payable in *• the same length of time after their issue, at the same places" &c. as the previous Debentures. It is quite certain that at the time of the passage of this Act in 1843, the interest at six per cent was equal in amount to the principal. And that the Government deemed it wise to pay the Stockholders their principal and interest, and take the entire control and direction of the Canal. I k.'Jf 9b The first class of Debentures were directed to be issued^ and wore issued, *^ for ** the principal sum invested" by.t'e Stockholders. The second clas.! of Debentures are provided to be issued when the tolls should attain a certain sum. The amount of each Debenture was not accurately known, and could not be given, but the data from which the computation is to be made is given. The time when the Stockholder " paid in " the stock subscribed by him, is the commencement, and the time when the tolls amount to £45,000 in any one year is the time for issuing the Debentures. The sum to be an amount equal to six per cent per annum on the Stockholders' subscriptions so paid in. • The Stockholders may not all have *' paid in '' on the same day, there may have been months and perhaps a year's difference, and the discrimination is made, by allowing to them respectively six per cent from the time when they actually ii m.' When the Act was passed in 1843, the amount had doubled, 7nd the com- promiso apparently was intended to be made principal, discrimin? ..y .-..y among the Stockholders as to the time of computation from their respective payments. Hence, the reading of the Act as to the second class, which gives six per cent per annun on the original principal from the payment of such principal to the issumg of the Debentures, and which are to be issued at the end of the year when the tolls reach £45,000, payable in 20 years from their date, carrying six per cent interest payable semi-annually. , In examining this Act of Parliament providing fur the purchase of and remunera- tion to the private Stockholders of the Welland Canal, I have not been able to discover any ambiguity. The question raised is, how long is the six per cent to be allowed, for which the Debenture is to be issued ? It seems to be entirely plain, it must be allowed from the day the original Stock vras "paid in " to the end of the year when the tolls should reach £45,000, ar.l when the Debenture should be dated, and contain the residue of the contract. The time for the beginning is fixed by the words when **paid in " — the c ^ .^ fixed by the words " so soon after the tolls amount to, &c." The Governor i m i ** after receipt of such tolls direct to be issued the Debentures, ■ ! SAML. GALE. J . - . F. •'(M' i-':,L .^'t-'Si i.:.->i'i;v^4: I have examined the Statute of Canada, 7 Vic. cap. 34, with reference to the question to what time the per centage mentioned in the sixth clause is to bo computed. I am of opinion that it is to be computed and allowed to the period when the tolls shall amount to £45,000 in one year. I think that this is the fair import of the language which the Legislature has used, and that it is not controlled by other provisions of the law, or by the circum- stanoes of the caiie. The latter, on the contrary, furnish reasons for a construction faT'orable to the Stockholders. Among these circumstances, the following may be mentioned ; mosi> of the Stockholders were foreigners and non-residents, and did not Bhare in the incidental benefits, which men of business and owners of property in the Province, derived irom the work ; most of them had paid in their money under an express pledge that the work should not be taken by the Government without reimbuiBing the Stockholders for the money which they paid, and an advance of fcvventy-five per cent oo it, nor unless they had, on an average, received twelve and a half per cent annually ; the onterprise was hazardous, and, if successful, fairly entitled those engaged in it to profits in proportion to the risk run : it was of public importance and utility, t\nd thjse by whose means and at whose expense and risk it had been prosecuted so nearly to completion, deserved a liberal and indulgent consideration from the Legislature and Government : the prospects of a speedy completion and of ultimate remuneration, were, at the time when tne law was passedf, becoming more and more favorable ; the Government considered it of importance for public purposes to take the entire control of the work, and by this law and previous legislation had assumed the dominion and exclusive control of the work, including the regulation of tolls, salaries and expenses, and had virtually annulled the rights of the Stockholders, on terms prescribed by itself, which creates a presumption, (in justice both to the rights of the Stockholders and to the equity and honor of the Government,) that the terms were intended to be so liberal as to preclude all doubt of their acceptance ; and finally, the preamble proves that the law, according to its true construction, was supposed to be ** forthe mterest of the private Stockholders," which it would not have oeen, as compared with the law of 1841, if the per centage was to be restricted to 1st January, 1843. If, in the consideration of this question, analogous cases were to be regarded, I think that the conclusion would be in favor of a liberal construction. at The Government and ihe private Stockholders stood much in the relation of co- partners to each other ;' one of whom by the exercise of a paramount authority takes to himself the whole of the partnership property and business for his own benefit, before any dividend has been received by his co-partner : he would justly be chargeable with all the disbursements of his co-partner and the current rate of interest to that time, on the ground that ^' it is but natural justice that he who has ** the use and benefit of another's money should make compensation for it," and, if payment of such principal sum and interest were, for his convenience, deferred, in- terest would be charged on the aggregate sum. This is a general principle of ju- risprudence, enforced equally in Courts of Law and Equity ana Admiralty. 2 Hagg. Adm. B. 137, The Dundee, Holmes. Under the most liberal construction, the Stockholderfi will receive no adequate indemnity. Fr^ fhem the enterprise has been unfortunate. All the benefits of the work have ? . aped by tne people and government of the Province. If there is any ambig> in the law, this circumstance presents a le^timate consider- ation in favor of a liLural construction, as being most equitable, most probable, and most honorable to the legislature. It is to be presumed that they intended to deal fairly with their co-partners, when, by the exercise of Sovereign Authority, they took their property for public purposes. MARSHALL S. BIDWELL. Nb\7 York, October, 1852. i.^ li; :j Dundee, Holmes, 2 Hagg. Adm. B. 137. In a cause of collision where payment of a sum for damage, interest and costs reported to be due had been delayed by the party liable, the other party is entitled to interest on the whole sum from fifteen days after the date of such report, "-:d, Stat. 53 Geo. Ill, cap. 159, sec. 1, limiting the liability of owners to the value of the ship, appurtenances and freight, applies only to the original claim for damage and extends not to costs and interest. OPINION BY LOBD STOWELL. ** The justice of this case lies entirely with the Counsel who have argued on the " part of those who have sustained the injury, and who apply for full restitution- « It is objected in the first place that £350 is stated for interest, and that in the " further report, interest is allowed on the whole amount of the former report in- "" eluding that item. This, it is argued, is compound interest, — interest upon in- " terest, and ought not to be allowed. To which, it is answered with perfect jus- ** tice and conformity to the practice of all courts, that where interest is so settled, " it shall bear interest thereon, and that the same shall not be deemed a compound " interest, charging the party with an unfair pressure in such account. It is agree- " able to the practice of merchants, and agreeable to the practice of the Court of " Chancery, and has been so held in this Court, where interest is made up, it then " becomes principal and '/ears interest as part of the principal." (This was the last reported decision of Lord Stowell : he had been about thirty years Judge of the High Court of Admiralty, having been previously a distin- guished Judge in the Ecclesiastical Courts. He is considered to have been one of the greatest Jurists of Europe. ) <« 33 in- CASE SUBMITTED for the OPINION OF THE LAW OFFICERS of THE CROWN IN ENGLAND. About the years 1827, 1828 and 1829, several suras of money were raised in Americaj Canada and England, amounting together to the sum of £117,800, Ca- nada Currency, towards making a Canal in Canada, from Lake Erie to Lake On- tario, called the Welland Canal. Large sums were also subscribed by the Govern- ment of Canads, for the same purpose, as public Shareholders in the Company. In the year 1843 more money was required to place the Canal in an efficient state, towards which the private Shareholders were unwilling to make any further contribution. In that year, therefore, an Act of the Provincial Legislature was passed, intituled, *' An Act to repeal a certain Act therein mentioned and to make further provision for enabling the Provincial Government to purchase the Stock held by private parties in the Welland Canal." A copy of the Act is sent herewith. By the 4th Clause of that Act, the Grovernment was authorized to issue Provincial De- bentures for the sum of £117,800, Canada Currency, in repayment of the Capital subscribed by private Shareholders. These Debentures have been issued, and in- terest at the rate of £6 per cent per annum in Canada, and £5 per cent in Eng- land has been paid upon them from the 1st January, 1843. By clause 6th in the same Act, provision was made for payment to the private Shareholders of inter- est upon their Capital, as follows : — " And be it enacted, that so soon after the completion of the said Canal as the " tolls received thereon for any one year shall amount to the sum of £45,000, Cur- " rency of this Province, there shall be charged upon the consolidated revenue " thereof, an amount equal to £6 per cent per annum on the private Stock sub- ** scribed from the time the same has been paid in for the benefit of the private Stock- ** holders aforesaid, or their representatives." The Tolls reached the required amount of £45,000, in 1851. Government proposed to pay interest on the Capital at 6 per cent up to the Ist January, 1843, only, and the same amounting to £107,343 4s. Id. has been receiv- ed by the private Shareholders in Provincial Government Debentures, bearing in- terest from Ist January, 1852, but these Debentures were received under protest. The Shareholders therefore contend that they have not received all that is strict- ly due to them, as either they are entitled to receive an amount equal to £6 per cent, per annum from the time their Capital was subscribed to the time when the tolls amounted to £45,000, o*^ they were entitled to receive an amount equal to £6 per cent, per annum from the time their Capital was subscribed to the Ist January, 1843, which would not be the case if the interest were not received until 1852. Your opinion is therefore requested on the following points : — 1. Whether the listter of the Act entitles the Shareholders to claim Interest up to the time when the tolls amounted to £45,000, that is, to January, 1852. 2. If not, what is the precise construction to be put' upon the words "an amount equal to six per cent, per annum on the private Stock subscribed from the time the same has been paid in." 3. Do those words \mply such » sum as shall, being paid now, in 1852, be equi- valent to an amount of six per cent, per annum on the Stock paid in 1843, when the Capital was discharged. . .J' V l! d4 H. OPINION or SIR F. THESIGEB, and of H. J. BUSHBY, Esquihb, We are of opinion, that in the absence of any express limitation of the time up to which the per centage was to run, the contingency on which the per centage was to become payable defined also the period up to which it was to be calculated. The construction which places this limit in 1843, has no warrant in the words of the Act ; and it is iurthbr negatived by the probability that any sum already defin^ ed when the clause was framed would either nave been stated as a specified amount, or as a per centage to be calculated during a specified period. These diflSculties vanish, if, adopting the natural construction, the clause is taken to have contingent- ly guaranteed a sum incapable at the period of complete definition ; and the accu- mulation of which during such time as the contingency remain* id unfulfilled, secur- ed the Shareholder against loss Arom delays in the carrying out of the work. For it is evident that while the ultimate completion of the undertaking was rendered tolerably certain by the amount of public money embarked in it, yet delays inevi- table or otherwise, might have been interposed after it came under Government management, which, but for some such proviso; would have impaired indefinitely the value of a compensation, limited by a definite period, though payable at an in- definite one. Oil these grounds we are of opinion, that the Shareholders are entitled to an amount equu to 6 per cent, per annum on the private Stock subscribed from the time it was paid in, up to the Slst December, A.D. 1851. FRED. THESIGEE. H. J. BUSHBY. 24ih August, 1852. Wl (Copy.) London, 15th October, 1852. The Honorable Wm. Hamilton Merritt. Dear Sir, — We have duly received your letter of the 13th ultimo, and have now much pleasure in forwarding the inclosed copv of an opinion in which the Solicitor Geneitd, Sir Fitzroy Kelly, has expressed himself in favor of the claims of the Welland Canal Shareholders. We have not yet been able to procure the opinion of Sir Alexander Cockbum, which we will take the earliest opportunity of transmitting to yon irhen obtamed. We are, dear Sir, Your very obedient Servants, (Signed,) BOSANQUET, FRANKS & Co. OPINION OP SIR FITZROY KELLY and H. J. BUSHBY, EsaiiiBB. We are of opinion that the Stockholders are^entitled by the Act to an amount equal to six per cent, per annum on the Capital, from the time it was subscribed up tv> the period of the tolls amounting to £45,000. . (Signed,) FITZROY KELLY. « • H. J. BUSHBY. 95 J. London, 5th November, 1862. The Hon. Yfn. Hamilton Mebbitt. Dear Sir, — Referring to our letter of the 15th ultimo, of which the annexed is a duplicate, we have now the pleasure to enclose a copy of the opinion of Sir Alex. E. Gockbum, which is strongly in favor of the claims of the Welland Canid Share- holders. We also forward herewith a Statement of the Case on which the above opinion, toother with those of the Attorney and Solicitor Geneitds tdioady trans- mitted, were delivered. We remain, dear Sir, Your faithful and obedient Servants, > BOSANQUET, FRANKS & Co. OPINION OF SIR ALEXANDER E. COCKBURN. (Copy.) We are of opinion that the Act entitles the Shareholders to claim six per i^nt. on the Capital subscribed, from the time when it was paid in, not merely up to the Ist January, 1843, but to the period when the tolls amounted to £45,000. (Signed,) « A. E. COCKBURN. H. J. BUSHBY. K. ,t, 'J f OPINION OP THE Honorable H. J. BOULTON. i'V. .., ^ .,;m • i By 4 & 5 Vie. cap. 48, after reciting that it was desirable to purchase from the Private Stockholders of the Welland Canal, the Stock held by them, amounting to £ll7,800,'it is enacted, that Debentures shall be issued to each Stockholder tbr a sum equal to the amount held by him ; such Debentures to be redeemable in twenty years, and bear Interest of two per cent, per annum for two years, three per cent for the third year, four per cent for the fourth year, five per cent, for the fifth year, ^nd six per cent for the sixth and following years, to be chargeable on the Public Revenues of the Province. It is also further provided, that when the Tolls on the Canal shall amount to £30,000, Debentures shall be issued to the Stockholders for sums equal to six per cent on the Stock subscribed, from the time it was actually paid in ; which Deben- tures (for the Interest,) shall be made payable in twenty years from the date, and bear Interest at six per cent, i)ayable half-vearly, — Provided, that no Stockholder should be bound to exchange his Stock for Debentures. This Act, although it relates to the public Revenue and to publio interested is nevertheless to be regarded in the light of a private Act so far as it relates to the Stockholders, and is to be construed in the same^ manner as an^ agreement would be construed entered into by the public with an individual. This Act is^ not com- pulsory even in its terms; it amounts to an offer by the Statje to the individuals to sell their Stock to the Government on the terms specified in the Act, and which the Stockholders were at liberty to accept or reject, as they might be advised. V 16 I i rv I \!' I'' 'J 1:4 Some of the Stockholders, it U sniJ, did not accept the terms, and consequently remain Stockholders, and entitled to all the rights of Stockholders, so far as divi- dends may be concerned. The large majority, however, did accept the terms offer- ed, and thereby acquiesced in the preposition made by the Act on behalf of the Public, and became parties to it. ' The Contract so entered into by the Public with each Stockholder coming in under th(5 Act was this, that each Stockholder would eell hia Stock at par, and take Debentures in payment for the principal, payable in 20 years, with two per cent. Interest fjr two years, three for third year, four for fourth year, five for fifth year, six per cent, for the remainder of the period, upon condition, however, that upon the contingency arising that the Tolls should amount to £30,000 per annum, the Stockholders should receive a Debenture for the back Interest, and should carry Interest untu ultimately paid. The obvious meaning of the whole being, that the Stockholder was, at some time or other, to get his Principal and Interest for his Stock, and so to sell at par, and be no loser. This was fair to the Stockholder, and beneficial to the public, as they thereby obtained the control of the work. By 7 Vic. cap. 34, after reciting part of the former Act, and part of another Act not necessary to notice, and that it had been represented to be for the interest of the private Stockholders that the first Act should be repealed, and other pro- visions made in lieu thereof, it is enacted that Debentures bearing Interest at the rate of six per cent, if payable in Canada, should be issued, bearing date 1st January, 1843, for the Principal. Provided that nothing in the Act contained should make void any Debenture issued under the former Act, thereby preserving the rights of parties and preserving the character of a bargain. It is further enacted, that so soon after the completion of the Canal as the tolls amounted to £45,000, there shall be charged upon the Consolidated Kevenue Fund a sum equal to 6 per cent, on the Capital Stock from the time the same was paid in, but the Act does not say up to what time it is to be calculated. As this is a legislative agreement and must be so construed, we must take into consideration the facts of the case on both sides, or not regard extrinsic facts at all. If we do not regard extrinsic facts, we cannot know whether the Principal sum has been liquidated by means of Debentures or not, and if so, we cannot give cre- dit for any Interest having been paid at all upon the Principal. If however, we are to take facts into consideration, and ascertain when the Debentures bearing In- terest were issued, so we must take into consideration the time when the money was ^ paid on the Stock and the amount due for Interest when the Act was passed, which upon a calcubtion even at simple Interest, would produce a sum as nearly as may be equal to the Principal, and therefore as it would be reasonable after about seven- teen years delay, to make up the amount and make a rest, the Legislature may well be considered to have meant that Interest on the Principal, O'* a sum. of Inter- est equal to the Principal should bear Interest up to the time when the Tolls should amount to £45,000, which was an indefinite period, and would therefore require a calculation of some kind and upon some principle not to be had at the passing of the Act, and therefore they meant that the Interest should be calculated up to the time of the contingency happening. If the time of the contingency happening was to form no ingredient in the calculation, and the party was only to get a Debenture for the Interest then due, the Act might as well have authorised the present issue of Debentures for the Interest, but postponing the payment of Interest thereon until the contingency should have happened; that is to say, the Debentures might have been issued for the amount of Interest then dui payable with Interest at 6 per cent., and at 20 years from the time of the" happening of the contingency. An- rtjv Quebec, 6th June, 1853. Sir, — I have not yet received a reply to the application I Lad the honor to pre- sent in the early part of March, in hehalf of the Welland Canal Shareholders, to refer the legal construction of the Act of 1843, to the decision of the Judicial Committee of the Privy Council. If it receives fhe approbation of the Council, I will leave the Petition to the Queen, to be made by the English Shareholders, and leave the matter to their management. Your will, therefore, oblige me by com- municating the decision of the Council thereto. " ^ I have the honor to be. Sir, / > ^4^' . Your obedient Servant, ' } WM. HAMILTON MERRITT. To the Honorable the Provincial Secretary, ' • &Cf &C., &o. : . • • = Secretary's Office, 9th June, 1853. Sur, — ^I have the honor to acknowledge the receipt of your letter of the 6th in- stant, requesting a replv to your communication of the 5th March last, on behalf of the Private Stockholders of the Wsli&nd "^anal, and to acquaint yOu, that the subject la still under the consideration of His Excellency the Governor General in Councilv 1 have, &C., The Hon. W. H. Merritt, M.P.P. A. N. MORIN. It 4S the fore- ^ tribu- in order cision of Nc. 15. UTT. 1853. •r to pre- eholdera. Judicial ouncilj I ]ers, and by com- IITT. 1A53. 3 6th in- u behalf that the tneral in BIN. - MEMORANDUM Upon Mr. MERRITT'S APPLICAIION oc the part of the late PRIVATE > V SHAREHOLDERS in the WELLAND CANAL. The Private Shareholders represented by Mr. Merritt, in their Memorial con- tend, that under the Act of 1843, (7 Vic. cap. 34,) they are entitled to claim six per cent, per annum, upon the amount of their paid up Stock, from the time the same was ^aid in until the year 1.852, when the revenue of the Canal reached Forty-five thousand pounds, notwithstanding that the Principal was paid off, by Debentures bearing six per cent Interest, dated the first day of January, One thousand eight hundred and for-,y-three ; they also submit the legal opinions of several eminent professional gentlemen both of England and the United States in support of their claim. It appears from a statement made by the Deputy Inspector General, that the flum of £107,373 4s. Id., being the back Interest at six per cent, on £117,800 (the paid up Stock) to the first of January, 1843, has been paid to the Private Shareholders in full, and the amount they yet claim is £65,113 3s. 4d., being In- terest at sL-c per cent, on the same amount from the first of January, 1843, (the date from which the Debentures issued to pay off the Principal bear Interest,) to 1852, when the Tolls amounted to £45,000, at mentioned above. This claim, it admitted, would entitle the Shareholders to receive twelve per cent, during that period, the legal rate of Interest during the whole period having been six per cent, per annum; and no more. ( Vide 4 & 5 Vic. cap. 48, and 7 Vic. cap. 34, in/ra, Anpendices K. & L.) The preamble of the Act of 1843, recites at unusual length the provisions of the Act of 1841, which sets forth, that the object of that Act was to place the Canal under the exclusive control of the Government, and for that purpose to purchase the Stock of the Private Shareholders, amounting to One hundred and seventeen thousand eight hundred pounds, on account of the Province, by the issue of twenty year Debentures to the Private Shareholders for the amount required, bearing In- terest nt two per cent, for the first two years, three per cent, for the third year, four f c-r cent, for the fourth year, fivp per cent, for the fifth year, and six per cent, for the sixth and following years ; cad that whenever the Tolls collected on the Canal should annually amount to hirty thousand pounds, other Debentures bearing six per cent, to issue to the Stockholders, for such sums as would make up six per cent, interest, upon the amount of Stock paid in by them from the time the same had been actually paid. Under the repealed Act of 1841, Debentures were to be issued to the Stock- holjers to the amount of the principal monies paid on their respective Stocks bear- ing the lower rates of interest until the sixth year when the legal rate of six per cent, commenced, and so soon as the Tolls reached thirty thousand pounds then other Debentures would be issued tc them, for an amount equal to six per cent, in- terest on such principal monies from the time the same was paid in. The Private Stockholders state in their Memorial, that the Debentures issued Under the Act of 1841, having proved unsaleable by reason of [rearing a less rate of interest than six per cent., th«j Act of 1843 was passed to obviate the difficulty, by the issue of marketable Debentuit s bearing ** full interest," and to use the wora* of the Memorial, " inasmuch ao it did not increase the amount of interest to be *» paid from the Provincial Hevenue, at the same time it secured for the Shaio- ** holders the value of th^ar capital." There is nothing in the Acts of 1841, or 1843, indicating that the Legislature intended to allow the Shareholders more than 44 *!• i- I 1 six per cent, simple interest. If it was intended to give the Shareholdfers twelve per cent, for a definite or indefinite period, or compound interest by making a rest, or compensation, or any amount beyond six per cent, simple interest, the Legisk- ture would have, either by recital or express words, defined such an important and extraordinary concession or right. In the Memorial and other documents accom- panying the same, much stress is laid on the sixth clause of the Act of 1843, and it is contended : That in effect, it authorises twelve per cent, to be paid on the amount of the Private Stock from and ufter the first day of January, 1843, so soon as the revenues of the Canal amounted to £4.'^-0U0. That the worda " amount, sexual to six per centum par annum," should be construed to mean, not a rate of in- teiest, but an indemnification or compensation to the Shareholders, and that the period to which the six per cent should be calculated upon the amount of Principal Stcck, is the year in which the Tolls amounted to £45,000, (1852,) althouj^h such Principal Stock was paid ofi' on the first January, 1843. Upon reference to the Statute, (vide infroy Appendix L.) it will be seen that the Second clause charge*? the amount of the Private Stock £117,800 upon the consolidated fund, with interest from the first of January, 1843, for the benefit of the Shareholders ; the Third clause authorises debentures to issue to them bearing in- terest from that date, the Sixth clause enacts that after the Tolls shall reach £45,- OOO, the consolidated fund shall again be charged '' with an amount equal to six per *' centum per annum on the Private Stock subscribed from the time the same has '* been paid in.** If the sixth clause stood alone, and nothing in the Act shewed that the Principal was to be paid off as from January, 184'J, it might be contended that six per cent, was payable to the year 1852, but when we find by the third and seventh clauses, that provision was made for the payment of the Principal in 1843, and which in pursuance of the Act was paid — it is an unreasonable and forced construction of the provisions of the Statute to suppose Interest chargeable on an amount already paid or bearing Interest ; on the other hand it is reasonable to assume that the Legislr • ture intended the sixth clause to read "from the time the same has been paidiu" to the time of the payment of the Principal, viz.: the first of January, 1843. The Seventhclause authorises debentures to issue for the amount of the Private Stockholders' "claimc," and in using this term the framerof the Act evidently had, in view the back interest, and that the Stockholders had debentures issued to them under the Act of 1841, bearing the low rates of interest as stated in the fifth clause of the Act of 1843, and wlvo had only received two per cent, for these years. The eighth clause refers to the back interest. It has been decided by somft of the ablest Judges of England, that the intent of the Legislature is not to be collected from any particular expression, or clause, or section, but from a. general view of the whole of an Act of Parliament; and if the words are ambiguous, the whole context must be looked to for their explanation — audit is no less a rule of law **that the worda of a Statute are to be taken in their ^* ordinary and familiar signification and import, and regard is to be had to their ** general and populai* use." If upon examination of the whole Statute of 1843, it is still contended an ambiguity exibts, the following doctrine will be generally ad- mitted as correct. That when a Statute is passed for the benefit of a Canal, Rail- way or other Companv, it is a bargain between a Company of adventurers and the public, the terms of which are expressed and set forth in the Statute, and the rule of construction in all such cases is fully established to be, that any ambiguity in the Laws of the coatract would operate against the adventurers and in favor of the public, the former being entitled to claim nothing which is not clearly given by the Act. It has also been judicially held, that the whole system of Legislation upon the same subject matter may bo taken into consideration in order to aid in the con- struction of a Statute, and that it is the duty of Judges in order to discover the true (( 4i <( ti (( C( <( twelve g a rest, Legisk- ant ami accom- 43, and on tho so soon amount, te of in- ;hat the rincipal ;h euch een that pon the snefit of iring in- !h £45,- ) six per }me has •rincipal er cent, clauses, rhioh in >nofthe idy paid Legislr • din" to Private lily had to them h clause B. The ntent of luse, or [ if the lation — in their their 843, it 1.II7 ad- ,1, Rail- and the be rule V in the of the 1 by the 1 upon be con- he true 45 meaning of an Act to consider other Statutes in pari materia, whether they are re- pealed or unrepealed. An able commentator says that every obscure or doubtful passage is to be explained according to the intention of the parties, and this we must endeavor to ascertain from the words, the usage of language, and also from the respective circumstances and relation of the parties to the transaction. Oh reference to ihe antecedent legislation on the subject, it appears that in March, 1839, (Appendix to Upper Canada Journals 1839 & 1840, Vol. 1, pt. 2, page 13**) the Private Shareholdors petitioned the Legislature of Upper Canada to purchase their Stock in the Canal; in the month of ^Eay following the two House of Parlia- ment passed a Bill {vide infra. Appendix C,) authorizing, for the purchase of the Stock, twenty year Debentures to issue to the amount of the principal £117,800 bearing two per cent, for two years, and three, four and five per cent, respec- tively for the following years, and six per cent, for the remainder, {vide infra. Appendix A,) and with regard to the back interest, the second clause enacted, ** That whenever the Tolls collected on the said Canal shall annually amount to the ** sum of £30,000, it slmll be lawful for the Lieutenant Governor to authorize and " direct the Receiver General of the Province to issue other Debentures to the ^' original Stockholders or their legal representatives for such sum as will make up " six per cent, interest upon the amount of Stock by him subscribed and paid for *• from the time the same shall have been actually paid in up .j the time of the issuing " of the Debentures in the first Clause of this Act mentioned, which Debentures shall *• be made payable in twenty years from the date thereof, and bear interest at the *' rate of six per cent., payable half yearly out of the Public Revenue of the Prc- *^ vince." Mr. Alerritt appended to tlie Annual Report on the Canal for the year \%A\, {vide Appendix D, to Journals ,r 18 U, Letter I,) his and Mr. Keefer's opinion on this Clause in these words : — " There appears also an ambiguity in the " wording of the second Clause the Act, 16th May, 1839, by which the interests ** of the Private Shareholders mav l,e effected, to avcid all mis ap rehension on this " subject in future, the undersigned will pre-ent a memorial to ihe next Legislature, ^' on behalf of the Private Shareholders, ^layiug the Act to be amended in such •' manner as to insure to them the full amou t of inter< >■ on their investment from ** the period when paid in, down to ihe time the transfer shall be made, by \vhicli " the time intent and meaning of this Act will be carried ii j effect." This Bill clearly shews that the intention of the Legislature was to curry into effect the principle and spirit of Mr. Merritt's proposal herein;. ;cr mentioned. The effect of the words in italics in the clause as above quoted was such that the back Interest being merely computable to the time of the i- ne of these Debentures, the Shareholders would lose the difference between the loner rates of Interest and six per cent, for the first five years on the Debentures aed for the Principal of £117,800. Consequently, in the Act of 1841, as it was undoubtedly the intention of the parties to make up the Interest to six per cent, per annum, for those years when tne back Interest should be paid, the v ords above quoted in italics were omitted in that Act. It is probable this was done at Mr. Merritt's suggestion, aa intimated in the annual Report above quoted from. The Debentuftes issued under the Sixth Section of this latter Act (1841,) being found unsaleable, the Shareholders brought the subject ot' its amendment before the Government, not for the purpose of making a new demand, but solely to enable them to sell their Debentures. Mr. Secretary Rawson drew up a memorandum for the information of the Executive Government, {vide aw/ra, Appendix B.) under date of the twenty-first September, 1842, and he suggested a doubt as to whether the omission of the words '* annual," or "per annum," as applied to Interest in the sixth clause, did not nullify its provisions. This suggestion no doubt was considered by theframer of the Act of 1843, and the word "interest," omitted, and "per annum," inserted, to avoid the difiiculty suggested in that Section of the Act of 1841, fill I hi I. 4*6 The circumstances above detailed under which these three Bills were introduced from time to tim*^, and passed, clearly shew, that the original proposition of Mr. Merritt was the basis of all the legislation, and the different amendments made were introduced to carry out his views, and to set at rest ail doubts as to the intention of the Grovernment and the Legislature. The last proceeding of the Assembly, on the twentieth November, 1843, (Journals of Assembly for 1843, page 142 ; vide infroy Appendix J.) previous to the presentation of the Bill of that year to the House, for it" first reading, was the necessary resolution of a Committee of the whole House ■who resolved on that day relative to the back interest, ** And further to provide ^* that so soon after the completion of the Canal as the toll shall amount in any one " year to £45,000 currency, other Debentures shall be issued to the private Stock- '* holders for the interest on their stock for the time the said had leen paid in.^ Upon this resolution the Bill of 1843 was introduced, passed its various stages without amendment, and received the lloyal Assent. As the Statute itself is a mere agreement between the Province and the Share- holders, relative to the purchase of their Stock, it will not be violating any rule of justice or equity to enquire further into and examine the circumstances and grounds upon which the bargain was arranged, for the purpose of ascertaining whether that which the Shareholders now demand, formed part of the arrangement. Upon re- ference to the records of the Assembly, (Appendix to Journals of U. C. Assembly 1839 & 1840, Vol. 1, pt. 2, page 13 * *.) it will appear, that a Committee was appointed to consider a Message I'rom the Governor General on the subject of the Act authorizing the purchase of the Private Stock, and appended to the Report of that Committee are several documents (inter alia) a memorial of the President of the Company (Mr. Merritt) and the Directors intimating their desire to dispose of the private Stock, also, a : i^ort of a former Committee of the House on the subject of the memorial, who " having; applied themselves to the consideration of such •* proposition to be made to the Stockholders, as would combine the principle of ** ultimate indemnification to them with a due regard to the interest and conve- " nience of the public" — recommended, if the Stockholders would agree to transfer their Stock, that twenty year Debentures should issue to them for the purchase thereof, beaming Interest at the rates of three, four and five per cent, for the first three years respectively, and six pcv cent, afterwards until redeemed, and that so soon as the annual receipts of the Canal reached twenty-five thousand pounds, three per cent, per annum upon the amount invested should be paid to the Share- holders, and when the annua! revenues of the Canal reached £50,000, six per cent, per annum upon their former Stock should be paid until the legal rate of Interest upon the Capital invested by them, from the time it shall have been actually paid in, shall be fully paid. The President (Mr. Merritt,) was examined by the Committee and in his evi- dence appended to the Report, in reply to the question {vide Journals of U. Cana- da, 1839 and 1840, Vol. 1, pt. 2, pages 14 * 15 * *)— "In the event of the ** Stock being purchased, from what time would the Interest commence?" He an- swered, he computed the Interest to the best if his recollection to that date at £55,008, setting out his data, and computinf; at the rate of six pe( cent, simple In- terest. And in reply to the question: — "Do you think the terms proposed by the ** Committee (viz. : the proposition above,) equitable towards the StockhoMers ? " He answered, — he did not, and made a proposition in lieu thereof, (»irfe infrOi Appendix C.) which he stated he should much prefer as being more advantageous to the Stockholders, viz. : — twenty year six per cent. Debentures to the amount of one-half of the whole Private Stock (£58,900^ to be issued at once to the Shareholders. Three years after, like Debentures tq issue for one-fourth (£29,450), and six years thereafter the remaining one-fourth to issue, in all £117,800, total amount of Principal. That after the annual xe- [ 5'w I "i ■ 47 1 venue of the Canal reached £25,000, like Debentures to issue to the Share- holders iu lliu tosiount of one half of the Interest due on the Stock since it was paid in to the time of the issue of the first Debentures on account of the Principal* and computed by him as above at £27,504. And after the income amounted an- nually to £50,000, like Debentures to issue for the remaining half due on the then ** back interest," £27,504. ** So that the Stockholders would ultimately be paid the Principal and Interest of their investments without burdening the revenue of the Province." And in order to convince the Committee of the equity of the proposi- tion, and that no loss would fall on the Fiovince, and to avoid any doubt or ambi- ^ity, Mr. Merritt set out elaborately his then supposed prospective financial posi- tion of the Canal for a peiiod of thirteen years, shewing the working of his propo- sition, and that the first instalment of back Interest would become payable in 1845, the last in 1849. To put it more clearly, his proposal was as follows, viz. : — i' V -'^' Amount of principai £ 117800 55008 a d. 1837. . Amount of interest then due by Mr. Merritt's calculation. ., , -..A , • Total amount to be paid £ 182808 MODE OF PAYMENT. (See Journals of U. 0. Assembly 1839 & 1840, Vol. 1, pages 14 * *, and infra, Appendix C.) 1837. . 1840.. 1845.. 1846.. 184^.. Debentures to issuo for half of principal Debentures to issue being one-fourth of principal Tolls supposed to reach £25,000. Debentures for half of computed iU' terest to issue. — (N.B. eight years have elapsed, and no additional interest or back interest included or claimed) Debentures to issue for remaining one-fourth of principal , Tolls supposed to reach £50,000. Debentures to issue for remaining half of interest — (N.B. twelve years elapsed, and no interest or back interest included or claimed) Claim and interest as above in full fi- 68900 29450 27504 29450 27504 182808 d. In this proposition, which Mr. Merritt on the part of the Shareholders no ''.oubt well considered, no demand is made for Interest on the back Interest or Interest oii the Principal after it was paid off, or for other compensation, but Interest is merely computed to the time of the transfer of the Stock, and the then ascertained amount), viz.: £55,008, without any addition, is to be paid when the Tolls on the Canal reach the respective amounts at which it is payable. At the time the application was made to dispose of the Private Stock, the Com- pany was much embarrassed, and the Stock consequently unsaleable ; under suoh circumstances after payment in full of the Principal invested, the only claim the Stockholders had, was upon the generosity of the Legislature, on account of the benefits the Province would reap eventually from the Canal, and it was very wisely considered that the least objectionable mode of preferring any claim, beyond that of the amount paid up, would be in the shape of back Interest upon the amount of in- vestments from the time of actual payment until the principal was paid off, payable when the revenues of the Canal reached a certain amount, — such was the proposi- tion of Mr. Merritt on the part of the Shareholders. These matters are noticed if 48 h ■ n r' tit .'ill i« 3 I because they clearly shew that no indemnification or compensation Avas demanded by the Shareholders when the matter was before the Legislature, other than the principal monies and back Interest, and that the only point for consideration was the period when the amount of the back Interest should become payable. The re- cords of the Executive Council Office contain evidence to the like effect. Mr. Mer- ritt in his letter of the first September, 1842, {vide infra^ Appendix D,) relatinn; to this subject, speaks of waiting for the back Interest until the revenues reach certain amounts. A draft of a Bill in Mr. Merritt's hand-writing, sent for^the information of the Government amending the Act of 1841, {vide infra. Appendix G,) provides in its fourth clause that the Debentures mentioned in the second clause of the Act of 1841 were to issue without any alteration as to terms except being issued payable in London at five per cent, if desired, consequently the amount to be issued was to make up six percent. Interest upon the amount of Stock from the time the same was paid in. The minute or memorandum of Council of twentieth of May, 1843, {vide infra^ Appendix I,) says, after stating at length the case, and the desire of the Shai*eholders for a repeal of the Act of 1841, "It is therefore " not thought expedient to move in the amendment of the Law, as proposed ^7 Mr. " Merritt, unless the issue of Debentures for the payment of back Interest shall be " postponed until after the completion of the Canal, and until the tolls of one year ** shall amount to £45,000, currency." Mr. Merritt in his letter of twenty-second September, 1843, {vide infra^ Appendix F.) transmits the memorial of the Stock- holders, dated twenty-second July, of the same year, accepting the proposal con- tained in the memorandum, and thereupon the Act of 1843 was founded. It is urged on behalf of the Shareholders that a liberal construction should be given to the Act so as to favor their claim, inasmuch as the improvement under- taken by them has been of vast service to the country, and therefore on equitable grounds they should meet with the most favorable consideration. In that point of view a reference to the contents of a Despatch, {vide infra, Appendix H.) dated 9th July, 1842, from His Excellency the late Sir Charles Bagot, to the Colonial Secretary Lord Stanley, is sufficient to shew the then opinion of the Government — and that no claim can be properly founded upon such grounds 5 nothing has oc- curred, since the date of that Despatch, to place their claims on a more favorable footing. "■ With regard to the opinions of several eminent professional men obtained by Mr. Merritt, it is remarkable that while some of these Gentlemen strain the sixth clause of the Statute of 1843, to shew that the words "six per centum per annum" may be construed to mean not interest but a mode of computing part of the purchase money of the Stock, and in order to arrive at such a conclusion travel out of the Statute and assume the intention of the Legislature to have been the very contrary of what in fact it was — yet Mr. Merritt- and the Shareholders on every occasion epeak of the six per cent, as Back Interest — the opinions of the other Gentlemen are apparently predicated solely on the words of the sixth clause itself; it is not de- nied that the Shareholders were entitled to six per cent, (interest which they now receive) from the time the Stock was paid in to the time the tolls reached £45,000. The whole circumstances of the claim — the inability of the Shareholders to com- plete the Canal — the depreciation of the Stock — its proposed sale to the Govern- ment — the proposition relative to the mode and period of payment of the back In- terest — the various Bills introduced in and passed by the Lepslature, and the rea- son of their introduction — the documents, letters, memorials, and other papers re- lating to the subject— the Statute of 1843 itself, all conclusively and most satisfac- torily shew, that at no time did the Private Shareholders expect, ask or stipulate for, the claims they now make, and that neither in Law or Equity are they enti- tled Co ibem. 49 emanded than the tion was The re- tlr. Mer- relating es reach b for«the ndix G,) clause of ig issued oe issued time the of May, ase, and therefore 3 yj Mr. shall be )ne year y-second e Stock- )sal con* lould be t under- jquitable point of [.) dated Colonial em men t has oc- ■avorable d by Mr. th clause m" may purchase t of the contrary occasion jntlemen s not de- ley now £45,000. I to com- Govern- back In- the rea- ipers re- eatisfac- stipulate ey enti- Since the foregoing Memorandum was prepared, Mr. Merritt has requested that the rights of the Stockholders may be considered in relation to the Statute and not as regards the equitable grounds put forth in his former Memorials : And in the event of the Council being of opinion that the Stockholders are not entitled to the amount claimed by them, that the question should be referred to some legal tribu- nal, either in this Country or in England, for decision. The observations already made will apply to the legal consideration of the sub- ject, and it is submitted that there is nothing in the nature of the claim to justify a departure from the ordinary rules prescribed by the Government in this Country when demands of a like nature are presented. Appendix A. ^ • - ACT OP 1839. . * Whereas it is desirable to place under the exclusive control of the Government of this Province the Welland Canal, and for that purpose to provide for the pur- chase from the Private Stockholders in that work the Stock by them held and which amounts to the sum of One hundred and seventeen thousand eight hundred pounds, fie it therefore enacted, &c., That from and after the passing of this Act, It shall and may be lawful for Her Majesty's Eeceiver General upon an order to that effect from the Lieutenant Governor of this Province to issue such number of Debentures as may be required to the several Stockholders in the Welland Canal for the amount equal to the Stock held by him or them, which Debentures shall be made redeemable in twenty years from their date, and shall bear an Interest of two per cent, per annum on the amount for which they may be issued, for the first two years, three per cent, for the third year, four per cent, for the fourth year, five per cent, for the fifth year, and six per cent, for the sixth and following years, and which Interest, as well as the principal sum, shall be chargeable upon and payable out of the public Revenues of the Province. 2. And be it, &c. — That whenever the Tolls collected on the said Canal shall annually amount to the sum of Thirty thousand pounds, it shall be lawful for the Lieutenant Governor to authorize and direct the Receiver General of the Province to issue other Debentures to the original Stockholders, or their legal representatives for such sum as will make up six per cent. Interest upon the amount of Stock by him subscribed and paid for from the time the same shall have been actually paid in up to the time of the issuing of the Debentures in the first clause of this Act mention- ed, which Debentures shall be made payable in twenty years from the date thereof, and bear Interest at the rate of six per cent, payable half-yearly out of the Public Revenues of the Province. 3. Provided always. And be it, &c.— That nothing herein contained shall be construed to compel any Stockholder to accept Debentures for the Stock by him held as aforesaid, or in case of refusal to take the same to deprive him from being paid from the Tolls and Revenues of the said Canal accordmg to the laws now existing having relation to the said Canal. 4. And be it, &c.— That so soon as the StockhClders owning two-thirds of the Stock in the said Canal shall have signified their acceptance of Debentures in lieu of Stock as hereinbefore provided, so much of the eighth clause of an Act passed in the 7th year of the Reign of His late Majesty King William IV., inti- tuled, ** An Act for the permanent completion of the Welland Canal, and for other purposes therein mentioned," as authorizes the annual election of two Directors by the Private Stockholders of the said Welland Canal Company, and as requires the n r so election or appointment of more than three Directors for the management of the said Stock, Property, Affairs and Concerns of the said Welland Canal Company, be, and the same is hereby repealed, and that a majority of the three Directors shall be a Quorum for the transaction of business ; Prr vided always, That the Lieuten- ant Governor shall have power and authority to appoint such Directors, or any of them, annually at his discretion. ALLAN N. MACNAB, Speaker. Commons House of Assembly, 6th day of May, 1839. JONAS JONES, Legislative Council Chamber, g i;;, ,r, ';/ 9th day of May, 1839. ^' • *'• ' Speaker. Pi |r^ |r'i'<" Appendix B. Memorandum of 21st September, 1842, upon Mr. Merritt's Application on the part of the Private Shareholders in the Welland Canal. Mr. Merritt, in his letter of the 20th August, solicits that the Government will consent to the introduction of a Bill to annul the first section of the Act of last Session relating to the Welland Canal Stock held by private parties, under which the Debentures to be given in lieu of that Stock are to bear Interest, for the first two years uo two per cent., for the third at three per cent., for the fourth at four, for the fifth at five, and for all subsequent years at six per cent., until the expira- tion and redemption of the Debentures in twenty years; He proposes to substitute for these Debentures others bearing immeuiately six per cent. Interest, justifying the request on the ground thot as by the second sec- tion of the same Act, the Shareholders will be entitled to Interest at that rate, for the past as well as the future, when the Tolls collected on the Canal shall amount to £30,000, which sura, he asserts, they will be sure to reach next year, the Pro- vince will lose a mere trifle by the arrangement, as will be presently shown, and the Shareholders will be greatly benefitted by their Debentures becoming saleable, which he states they are not at present. His position is that the Interest for one year at two per cent, becomes due in Nover-iber, 1842, that a similar payment at the same rate will become due in No- vember, 1843, making together four per cent, up to the latter da.,<;. ^ In 1844 he asserts that the rate, instead of being 3 per cent, under the first sec- tion, will be 6 per cent, under the second : if therefore the Province were to pay 6 per cent, in 1843, it would only lose the difference between that amount and 4 per cent, due in November, with the small amount accruing at 3 per cent, during the rest of the year. Jn return for this he offers, on the part of the Shareholders, to forego a claim which they have put forward for arrears of interest under an Act of 1837, which, at the late of 6 per cent., to which they consider themselves entitled, would amount to 36 per cent, on the Capital ; or if that claim be rejected, to an arrear of 25 per cent, under the same enactment. It will be necessary to enter into a little detail to show the position in which the parties and the Province stand under this Act. ^f M it of the ompany, tors shall Lieuten- )r any of By the Ist section the Shareholders are entitled to Debentures for £117,800, re- eraable in 20 years. The cost of this to the Province will be : — )eakcr. I on the nent will 3t of last ler which : the first 1 at four, e expira- lately six jond sec- rate, for amount the Fro- wn, and saleable, 3 due in } in No- first see- to pay 6 nd 4 per ring the a claim , which, 1, would arrear of hich the Interest — Ist year at 2 per cent 2nd do 2 do 8rd do 3 do 4th do 4 do 5th do 5 do 6th do do 14 subsequent years at do , Capital Total £ £ s. 2846 2340 8534 4092 6880 7068 98052 117800 242618 d. O-^ . • , If the capital were raised at 5 per cent, and the parucs paid off, the interest would amount in 20 years only to £117,800, instead of £124,818, a saving of £7,000, and the capital might be repaid sooner and the interest saved. But by the 2nd section when the " Tolls collected on the Canal shall annually ** amount to the sum of £30,000," other Debentures are to be issued ** for such sums " as will make up 6 per centum interest upon the amount of Stock subscribed and paid for, from the time the same shall have been actually paid in" which Deben- tures are to be^r interest at 6 per cent, for 20 years. Upon this it must be observed — Firstj that this new debt is to be created when the Tolls collected amount to £30,000, without any reference to the net income : — t. €. the Shareholders are to be paid out of the Tolls, and the Government is to de- fray the charges of maintenance. Secondly — The Debentures are to be issued ** whenever" the Toll '* shall annu-' ** alljr amount" to £30,000 ; no provision therefore is made for the case of the annual receipt falling below that sum, after it has once reached it. If by any acci- dent the Canal were to be stopped, or the trade be diverted from it, after the Tolls had once reached the above amount, the Government will still be liable to the charge, although receiving no benefit from the Canal. Thirdly — There is an important verbal omission in the section, although it may not invalidate its intended effect. It is enacted that the Debentures shall be issued « for such sums as will make up 6 per cent interest upon the Stock, from the time " the same shall have been actually paid in." The word " annual" or •* per annum " applied to interest," are omitted; and the doubt may arise whether, although the intention of the framer is obvious, the omission does not nullify the clause. Passing over, however, these objections, and supposing, as Mr. Merritt states, that the Tolls to be collected next year will amount to £30,000, the parties will receive under this clause as follows : — *' The precise time at which they paid the money can only be stated after reference to the original Stock Books, but Mr. Merritt believes it to have been thus paid :— £30,000 in 1825. 45,000 ** 1828. 42,800 " 1830. Hence, the sum to which the parties will be entitled at 6 per cent, annually, will • amount on, £30,000, for 17 years, 30,600 .45,000, « 14 « 37,800 42,800, " 12 '• 30,816 i^. »• Total £109,216 tt .1 4i' Uh I' 'I; \ ^\ ,1 ' For thb SQm of £109,316, Debentures are to be issued to the parties, upon which they will be entitled to 6 per cent, for 20 years, amounting to Jb 13 1,040, be- sides the new capital, maidng together £240,256, in addition to the £242,618 pay- able under the first section. This may be shown in abstract : — - '*'.■.* Oriflriiml DebenturcB. CaDttal .»••••••.••••••••* ••»»•••• ••••• £ 117800 124818 a d. Intorcst. • £ ' ' ' -• 242618 New Debentures. CADital 109216 181040 iDterest. .>••••••. <■ 1 £ £ •. . 1 r *"• r - ■ ■' - 240256 Total 4828T4 Thus, nearly half a million of money will be expended to get rid of this Stock, amounting to £117,800 1 The parties however are not satisfied with this. They claim, under the 17th sec- tion of 7th Will. 4, cap. 92, a still further sum. The clause runs thus : Be it en- acted, &c., '< that the Tolls received upon the canal, after deducting the amount << required for the charges now made thereon by law, or so much thereof as shall " be necessary, shall be first annually applied to discharge the interest which will *^ accrue upon the said sum of £245,000" (to be advanced for the works under this Act) '' and the remainder of the income received bv the said Company shall be di- *' vided among the private Stockholders until it shall equal six per cent on the ** amount of their investments." Upon this, they first ground a claim for the full arrears of interest at six per cent per annum. This for six years, to 1842, would amount to £42,408. If this be disallowed, they claim a less amount of arrears, equal to twenty-five per cdnt for the whole period of six years. This would amount to £29,450. The foundation of these claims rests upon the assumption that the income refer- red to in the clause last cited was gross income, excludmg in the first case a deduc- tion even for the cost of administration, and admitting it in the second. This in- terpretation has been repudiated by the Government ; Mr. Attorney General Ha- german gave an opinion against it, but the Company obtained the opinion of five bwyers in favor of it. To concede it would be to admit that these parties in a pri- vate speculation would be reaping a large profit or rate of interest, while the Canal did not pay its expenses, and that the maintenance of the works was to be thrown on the Government. Without, however, determining this question, it is clear that when the parties un- der the second section of the Act of last Session, get arrears of interest at the rate of six per cent, for these very years, they are not entitled to another six or five per cent, which would raise the interest for this period to eleven or twelve per cent, and Mr. Merritt himself admits that such " was not the intention of the law " of last Session. If therefore this claim falls to the ground, there is no reason why the Legislature should shew them any further favor, and upon the chance, however probable, of the tolls amounting next year to the required sum, subject the Province, to the addi- tional payment of two per cent for one year, with three per cent in the following year, and further payments, if the tolls do not increase as is expected. s. d. 58 But it would teem, further, that Mr. Merritt misinterpret* the operation of the second section of the Act of last Session, in relation to the first. The first section grants debentures bearing a sliding scale of interest in future years. The second enacts that at a certain time further debentures shall be given for arrears of interest accrued up to the time at which such debentures are issued. ^t does not provide for anticipating the payments in future years under the first section, and adding to the new Debentures the difference between six per cent, and the lower rates fixed by that section. If this interpretation be correct, Mr. Merritt's other ground for his application would be removed. A few words, before concluding, as to the position and claims of the Province with respect to the Welland Canal. It has already expended more than £380,000 upon this work, of which sum a large portion has been borrowed, upon debentures bearing five or six per cent, for which interest it still remains liable, a further sum of £450,000 is now to be expended. The annual interest upon this and the portion of the previous expenditure remaining unredeemed, eay £350,000, will be, at five per cent, £40,000. This alone will absorb the probable amount of Tolls, for some years to come, making no allowance for : Ist. The expenses of maintenance, cost of repairs, &c. 2nd. The payment of the sum of £482,874 to the Private Shareholders. 3rd. The repayment of the principal £800,000, which will be obligatory as re- gards a great part of that sum within twenty years. The parties urge their claim upon the gratitude of the Province for having com- menced this work, and having thereby conferred the most important benefits upon the country. The well-known circumstances under which the works have been provi- ded for and carried on, tend very much to diminish the force of their appeal, as it may well be doubted whether, if the Canal had not been commenced by private individuals, the obvious utility and need of such a communication between the Lakes, would not have soon attracted the attention of the Legislature and the Govern- ment, by whom it is probable that the work would have been completed with much more expedition and economy, and with a greater regard to public interest than could possibly be the case in a private speculation of this nature. In a subsequent note of 10th September, Mr. Merritt states that his " object at present is to ascertain on what pnnciple the parties are to be renumerated," and ''^ '^ that they would accept either Debentures or money " for the amount to ." >,'( Appendix C. MR. MERRITT'S EVIDENCE. (See Appendix to Journals of U. Canada, Sess. of 1889-40, Vol. 1, Part 2, page 14 * *. Rep. Sel. Com. Welland Canal.) At what time was the investment made by the private stockholders, and in the event of their stock being purchased by the Province, from what time will the in- terest commence ? „ ™,, -, . . „ „. . 54 I cannot state the precise time when each person subscribed without reference to tlie original stock books, but from recollection believe the interest may be computed as follows : 1825 10 years 6 per cent on £30,000 a 1800 £18,000 1828 8 " " 45,000 a 2700 21,600 1830 6 «' *< 42,800 a 2568 15,408 £55,008 Do you think the terms proposed by the Committee equitable towards the Stock- holders ? Answer. — I do not — Many of them have been paying interest at the rate of 7 per cent, per year on the amount of their investment ; to their judgment, energy and confidence, are the public indebted for the undertaking, they have sustained it their hazard and have derived no benefit whatever when the public have derived far greater benefits than the entire cost of the Work. At the same time I feel so confident the income from the Canal will repay them in a short time, that I should much prefer the following arrangement to enable the Stockholders to realize a part of the outlay at once, and not create so large and apparent debt as the first measure shows. ill ^ m -'ii PROPOSITION. To issue Debentures payable in 20 years for 50 per cent, on the par vali v of "he Stock held by individuals, which will amount to £6b,0OO In three years hence to issue Debentures as above for 25 per cent 29,450 In six years same as above 29,450 £117,800 After the P ■•venue on the Canal amounts to the yearly income of £25,000 to ad- vance the Debentures to the amount of one half of the interest due on the Shares since the Stock was paid in, payable out of the proceeds of the Canal, after the in- come amounts annually to the sum of £50,000 to issue Debentures as above for the remaining half due on the back interest payable out of the proceeds of the Canal, so that the Stockholders will ultimately be paid the principal and interest of their in- vestment without burdening the revenue of the Province. Should the private Stoc'. be surrendered as proposed, will the public be called upon to pay the interest ? Answer. — I do not think the Revenues of the Province will be burdened with one farthing by extending their credit in supporting that work with judicious manage- ment. For instance, if the Government should issue Debentures payable in twenty years for fifty per cent, on the amount of the Private Stock. In 1887, £58,900 @ 6 per cent., the Interest £ 8634 2466 s. d. £41,100 @ 6 per cent., for payment of Debts, Repairs, and ment of Stone Locks commence- The Tolls of this Year will pay the Interest £ 6000 Iq 1838, Interest on £100,000 6000 1500 £25,000 advanced on Locks 1 £ "Will amount to ; 7500 The Tolls of this year will also nioet the interest. 55 8. d. III 1880, Interest on Stock and Loan, £125,000 £ 7500 1500 B. d. Advance on Locl.s, £25,000 Thu incruuiiu Toll will also meet this Amount . . £ : . 0000 In 1840, Interest on Stock ana l^oan £1C0,000 0000 1500 8534 Advance on Stone Lockn £25.000 1 Interest on 50 per cent, to be then paid on private St Tho increase Uevenue will meet the Amount ock £58,000 .... . £ 14034 In 1841, Interest on £223,000 14034 1500 Advance on Locks £25 000 Tho Toll will again meet this amount. 15584 In 1842. Loan will amount to £248,*j ). Interest 15534 t further ad- This year tho Toll will enable tho Work to sustain itself withou vances and a gradual redemption may be expected as follows : In 1843, Loan continues at £258,000, Interest 15534 20000 Toll amountinir to £ Leaving an Increase of 4106 In 1844, the Loan will bo reduced to £224,434. Interest 14666 25000 Tho amount of Toll £ Increase 10334 In 1845, the Loan reduced to £*244,100 Interest 14048 1650 This vear advanced half tho Interest on Stock. Interest *£284,100 * 27,504 £261,604 The Toll this vear . . £ .1 15606 13250 £ Increase 15554 • v* — -^ In 1846, tho Loan reduced to £246,050. Interest « 14763 30063 The Toll this vear £ Increase 24300 ' . In 1847, the Loan reduced to £221,750. Intorpfit > • 13305 48827 n Toll this vear 1 £ TnnreaSfi .. .-.- 35522 In 1848, the Loan reduced to £186,228. Interest 11173 61033 £ Increaso •••,»•••••••••••• 40860 ^ ri ■i ■'■' In 1849, the Loan reduod to £136,888. Interest J ' • '•„" - £ 8182 1650 s. d. This vear advance half Interest on Stock 1 £27,604 £163,872 The Toll this vear £ 9832 7G291 £ ! IncroflSfi. 66459 In 1850, the Loan reduced to £97,413. 6844 100000 c Toll this vear 1 £ *■ V ■ '''- ' . Increase 94156 "Which liquidates the principal, and therefore will yield a Revenue to the Province of £125,000 per year to assist in other Improvements. Appendix D. St. Catharines, 1 St September, 1842. Sir, — I have the honor to acknowledge the receipt of your communication of the 30th ultimo, requesting my opinion, on the part of the Sharchold'jrs, as to the amount in Debentures, or money which they would demand in full acquittance of theirclaim and their interestin theCanal,iureply thereto,! beg to state that I have been instructed by t!ie Shareholders to say, that they will accept of Debentures payable in London m twenty years, at an Interest of six per cent, for the amount of the Capital invested, and wait for the amount of Interest due thereon, until the Income from the Canal reaches £30,000 per year, when they will receive Debentures on the same terms ; they also would prefer that the Kevenues of the Canal should be first appropriated for the payment of those Debentures or the Interest thereon. : I have the honor to be. Sir, I' 1 .'' ,. • Your obedient Servant, ' ^ (Signed,) WM. HAMILTON MERRITT. R. W. Rawson, Esquire. ;: -y- ;■:/ :::" ■■■■:■ Appendix E. •'• •• "-•• ■ '.'■'''■— >^'-*^ '* ;; '^ Toronto, 22nd May, 1843. Sir, — I have the honor to acknowledge the receipt of a Copy of a Memorandum or Minute of Council passed on Saturday last, in which I observe an omission of the former Shareholders, also the rate at which Debentures are to be issued in Canada. I mentioned this both to the President of the Council and Mr. Secretary Harrison, who are of the opinion it will be of no consequence, as the intention of the Council is well understood. I have therefore assured the Private Shareholders that if the proposition be acceded to by them the Debentures for the £117,800 may bear interest from the first January, 1823, (this shuuld be 1843), and be issued by the Receiver General in the ordinary manner, six per cent, payable in Canada, and five per cent if payable in 8. d. c 57 England) which is at the option of the Shareholder, on returning the Debentures now iaaued. I will take it for granted if no answer is returned by you that I have fairly repre- sented the intention of the Council ; if not, on placing this communication bcaore them, you will have the goodness to apprise me, that I may give the Shareholders timely notice thereof. ,• I have the honor to be, Sir, , Your obedient Servant, ■ ' WM. HAMILTON MERRITT. . To Chief Clerk of the Executive Council. Appendix F. St. Catharines, 22nd September, 1843. Sir, — I have the honor to present you with the enclosed Memorial from the Private Shareholders of the Welland Canal Company, which, I am happy to say, accedes to the terms proposed by His Excellency in Council, for his information. I have the honor to be, Sirj Your obedient Servant, • >■ ^ WM. HAMILTON MERRITT. ^ Honorable S. B. Harrison, &c., &c., &c. ^: /'>.v >• A To His Excellency Sir Charles Metcalfe, Governor General of British North America, &c., &c., &c. May it please Your Excellency ; The undersigned Memorialists, Shareholders in the Welland Canal Company, beg leave to represent : That since the control and management of that undertaking was assumed by the Legislature of Canada, under the Act of 1837, your Memorialists have confided wholly on the good faith of the Provincial Government. They readily complied with the terms proposed under the Act of 1841, by trans ferring their Stock and placing the management of that Canal immediately under the Board of Works, which appeared to be the desire of the Government, and have at all times' afforded every facility in their power to sustain the undertaking. The Minute of Council of the 20th May last, proposing an amendment of the existing law, by issuing Debentures payable in England at five, or in Canada at six per cent. Interest, from the first of January, 1843, (in the usual manner^, at the option of the holder, for amount of Capital held ; and a further issue of Debentures for payment of Interest due since the same was paid in, as soon as the Tolls in any one year reach £45,000, has been submitted for their approval. Your Memorial- ists were led to believe from the terms of the Layc of 1837, that an early remune- ration was secured to them, as well as from the:|^Tantee of the British Govern- ment in payment of the Provincial Debt in I34lr-in whicli, from the inferpretation placed on the first, and withholding the fitbyal Assent to the' laft, they have been disappointed. They also, from the favorable view taken pf their claims by the Treasury and Colonial Minister in May, 1842, had indulged & hope they would be placed on a more favorable posiiGIc^ ; sind they still feel that on a reconsideration of their present situation, if Your Excellency can consistently with the public interest ^a recommend the second issue of Debentures, as soon as contemplated by the existing Act, that it will be granted. If not, their confidence in the income from this Canal meeting their early anticipations, and that when realized full compensation will be made tuem, remains unimpaired. Your Memorialists therefore adhering to the principle by which they have been governed, will accept of the terms offered in the Minute of Council alluded to. All of which is respectfully submitted. n.;>a HENRY YATES, and others. ' Albany, July 22nd, 1843. ' > VT Ifv . I I I- Appendix G. DRAFT OF AN ACT in Mr. Merritt's handwriting. ■ M^t^ __ TI^HEREAS it appears conducive to the interests of the Private Shareholders ^ * in the Welland Canal Company, without proving injurious to the Public, that the 4th & 5th Vic. cap. 48, should be amended : Be it therefore enacted, That it shall and may be lawful for Her Majesty's Re- ceiver General, upon an Order to that effect from the Governor, Lieutenant Governor, or Person administering the Government of this Province, to receive from any individual possessing the same, all Debentures heretofore issued to the Private Shareholders in the Welland Canal Company undler the Provisions of the above recited Act, and to cancel or destroy the same : Providing application be made within twelve months from the day of the date of this Act. „ vivitr ;-• i|.i.fstf j^f'^'i-^^'Up But waiving this objection, there are other and more conclusive grounds on which, as it appears to me, the claims now put forward by the Shareholders must be rejected. The Company, as your Lordship is aware, was originally incorporated by the Act 4 Geo. IV. cap. 17, for the making of a Boat Canal, at which time the amount necessary for that work was estimated by its projectors at £40,000. In 1825 the dimensions of the Ca.jal were increased, so as to admit the passage of larger Ves- sels, and the Stock was raised to £200,000. In the following year, £25,000 was advanced by the Government to the Company, under a Bond for its repayment with interest at six per cent. In the same year an equal amount of £25,000 was voted by the Legislature of Lower Canada. In 1827 two Acts were passed, the first granting £16,360, which was estimated as one-ninth of the whole expenbv^, for the free use of the Canal by the Government ; the second taking Shares on the part of the Province to the amount of £50,000^ under a Bond from the Company for £20,000 for the half yearly payment of the Interest at six per cent. In 1829, the Imperial Government advanced £50,000, taking as a securing for its repayment a I ' i 8»;. v. m Mortgage upon the Canal itself, a condition which by the Provincial Statute, 10 Geo. 4, cap. 9, the Directors were enabled to carry into eflfect. In 1830 a further sum of £25,000 was advanced at six per cent, the Company giving a Bond for the payment ot the Principal and Interest. In 1831 a further sum of £50,000 was advanced on the security of the Canal, and it was provided, that if the Company should fail to pay the Interest and Principal of this advance, the Seceiver General should take possession of the Canal in the name of the Crown, " and appoint such **' Agents, Collectors, and other Officers as may be requisite to manage 'he same, ** and deposit and apply the proceeds thereof to the payment of the Interest and ** Principal aforesaid." And rendered suspicious by the repeated demands upon them and by the constant falsification of all previous estimates, the Legislature further provided, ** That no part of the said sum of £50,000 shall be advanced to ** the said Company until personal security shall have been given to the satisfaction *' of His Excellency the Lieutenant Governor, to the amount of £25,000, that the " said Canal shall be completed for ship navigation from the said River Welland to *' some point in Lake Erie to be fixed upon by the Directors of the said Company ** for a Harbour, and that the said Harbour shall likewise be completed without any ** further grant for that purpose." Notwithstanding this precaution, the Company, in 1833, again applied to the Legislature, when the sum of £7,500 was granted to them ; and in 1834, a further of £50,000* was subscribed ftr as Public Stock. These sums, however, having proved inadequate, tho Act 7 Will. 4, cap. 92, was passed for the '* permanent " completion" of the Canal. By the preamble of this Act, it is recited that £107,- 500 had been subscribed as Public Stock, and £102,000 had been loaned to the Company under the provisions of several Acts. The Act then proceeds to provide that the £102,000 advanced by way of loan should be converted into Public Stock ; that the Governor should be authorized to subscribe for £245,000 additional Stock ; that the whole Capital Stock of the Company should be £597,300 in Shares of £12 10s. each, of which the Government of Upper Canada should hold 36,360, the Go- vern nent of Lower Canada 2,000, and Private Stockholders 9424 ; that the manage- ment of the affairs of the Company should be entrusted to five Directors, of whom three should be appointed by the Crown and two by the Stockholders ; and " That *' the Tolls received upon the Canal, after deducting the amount required for the " charges now made thereon by law, or so much thereof as shall be necessary, shall " be first annually applied to discharge the Interest which will accrue upon the said " sum of £245,000 to be advanced for the purposes aforesaid, and the remainder of *' the Income received by the said Company shall be divided among the Private *^ Stockholders, until it shall equal six per cent, on the amount of their Investments." In the last Session, the Act for the purchase of the Private Stock was passed^ and in the public Works Act, a vote of £450,000 was taken for the Canal. The recapitulation of these proceedings shews two things which are very important. First, That the estimates prepared by the projectors of the Canal, and upon which the Legislature was called upon first to incorporate the Company, and afterwards to grant assistance from the public revenue) were, whether intentionally or not, most extrava^ntly incorrect. And secondly, That the Canal had, previously to 1837, been twice mortgaged to the Government, and that under the Act of the 1st Will. 4, cap. 18, ittnight, at any time, have been seized by the Receiver General, and the whole of the OfBcers appointed by him, without any further legislation on the sub- ject. But it, moreover, appears that of the whole amount of £491,777 expended upon the Canal, only £117,800, or less than one-fourth, has been subscribed by Private Individuals, while a further expenditure, nearly equal to all that has preceded, is =^t'll requ'ired, the whole of which is to be provided by the Province. Under such c JumstanceS) can it be maintained, even putting the Government on an equality 61 with Private Stockholders, that they have secured to themselves an unfair share in the direction, or in so doing have inflicted on the Shareholders, an injury which would entitle them to compensation. Must it not rather be admitted, that they would have been grossly negligent of their duty as Trustees for the public if, when applied to for assistance, towards a work which had been so notoriously miscalculat- ed and mismanaged, they had omitted to take the necessary precautions for securing the due administration, by responsible parties, of the Funds which they gra-ited from the Public Purse. On this ground, at least, I cannot think that the Shareholders have any claim. But they next complain that the 17th Clause of the Statute 7 Will. 4, c. 92, has been so interpreted as to withhold all benefit from them, and that there is now due to them, if that Clause were fairly construed, 36 per cent upon their Shares. The terms of this Clause I have already quoted, and your Lordship will bbt . ve that it provides that ** the remainder of the income," after paying the legal ch : 'ges and the government interest, shall be divided among the Stockholders untii it shall equal six per cent, on their investments. It has been contended by Mr. Merritt on behalf of the Shareholders, that the word *' income", means the jjross receipts without deduction of the expenses of the Canal, and if this interpretation be correct, the Shareholders are no doubt entitled to the sum stated in their memorial. Eut it appears to me altogether e£.fravagant and irrational to adopt such an interj^iretation. If the expenses of the management and repair of the Canal are not to be defrayed from its gross receipts, they must be defrayed from the Public Kevenue, and thus the Canal would be kept up at the expense of the Province for the sole advantage of the private Shareholders, and the anomaly be presented of a concern actually incurring an annual loss and yet making an annual division of profits. Under such an arrangement the party who would suffer by the mismanagement which haj taken fdace, would be, not those who entered upon the undertaking as a monetary specu- ation, but the Province which came in to assist them in their difficulties, and to rescue them from the embarrassment in which their own miscalculations had involved them. This appears to me altogether preposterous, and I cannot therefore admit that upon this ground the Shareholders have made out their claim to compensation. In respect to the injury which they incurred by the delay in proclaiming the Act of 1839, and by the priority on the public Revenue of other claims before the Debentures to be issued for their Stock, it is only necessary to say a very few words. The security upon which the Shareholders advanced their money were the Tolls of the Canal. That security still remains to them, and it is at their cation to retain it or to accept the Government Debentures in place of their Shares. It can scarcely be said, loolsing to the proceedings of the Company, that the security is now less than when they loaned tneir money, or that it has become less marketable by the transfer of the Work, from an irresponsible Direction by whom it had been almost ruined, to responsible and scientific Directors under whom it will be completed and perfected. I have myself no ,doubt that now that the Works are to be conducted under Government control, tlie Canal will soon become prosperous^ and thriving, but whether this be so or not, the Shareholders have no right to claim now at the expense of the public, a bettei* security than they originally bargained for. For these reasons I would submit to Your Lordship to reconsider the instruc- tions which you* have issued to me to bring this matter before the Legislature.* Without at all undervaluing the importance of the Welland Canal, or depreciating the energy of Mr. Hamilton Merritt and others by whom it was originally com- menced and has been carried on, I entertain very strong doubts whether the public would not have been much benefitted had the Company never been formed, or had it expired with its first failure. The Work would then have fallen into the hands 62 ' ^,5 h -f of the Government, and been conducted with regularity and soience, and much of the expense which has been incurred would have been saved. That the House of Assembly would take the same view with myself in regard to the present claim^ I have not the least doubt, nor do I doubt that Mr. Hamilton Merritt is aware that, it would do so. He knows that they would not listen to an individual Member who should bring forward such a demand, but he hopes that by the influence of the Government, it might be forced through the House. In this hope he would, I believe, be disappointed; and even if the claim had move foundation than it has, I think it would be extremely impolitic to bring foiVard a. money question on which the Government would almost certainly be defeated. Among the Lower Canadian Members, who already complain of the unfair share of the debt of Upper Canada imposed upon them, it would meet with unqualified and probably angry opposition, while the Upper Canada Members who for years have been misled and wearied by the never ending miscalculations and demands of the Company, would to a great extent join with t" 3m. The proposal would be rejected and the Government be left with the discredit of having been defeated on what would be described as a ''job" for the benefit of parties residing in England. Under these circumstances I would recommend that the Government should not in any way move in the matter. If there is any justice in the claims of the Share- holders, there is no doubt they will he brought forward with sufficient zeal by Mr. Merritt ; if there is not, it is not fitting that the Government should be the means of pressing them on the Legislature. I have, &c. •V': . CHARLES BAGOT.. Appendix I. f^ MEMORANDUM or MINUTE of 20th may. 1843. II It is looked upon that the fixing the period at which Debentures shall be issued for the payment of the back Interest on' the investmebt of the Private Stockhold- ers, namely, when the tolls to be received at the Canal shall annually ftmount to £30,000, was intended to give the said back Interest when the tolls on the Canal shall be sufficient to pay the Interest on the sum expected to be expended in the construction of the work, the costs of management and repairs, the Interest on the Debentures issued for the principal sum invested by the Private Stockholders and the Interest on the Debentures for the back Interest. The calculation appears not to be far wrong under the estimate of expenditure in the year 1839, but subsequently and before the passage of the late Act, a much larger expenditure was fiaund to be necessary, and consequently if Debentures were to issue when the tolls on the Canal annually amounted to only £30,000, the In- terest on the Debentures to be issued for the back Ititerest would be borne upon the Provincial revenue, contrary to the intention of the Legislature. Mr. Merritt now proposes an alteration in the Law for the benefit of the Private Stockholders, which would make the £117,000 of Debentures which were intended as a repayment of the principal investment of the Private Stockholders payable in * England, instead of in this Province, the rate of Interest payable in England to be 5 per cent, per annum. To this proposal the Government do not think it just to the public interests to accede, unless upon the principle that the Interest on the Debentures for back In- terest shall be no burden upon the public revenue. To enable them to be borne on the revenues of the Canal, it is now calculated will require an annual amount of 63 toIU of £45,000, Provincial currency, leaving the income from real estate and hy- draulic privileges to meet the estimated coat of management and repairs after the completion of the Canal It is therefore not thought expedient to move in the amendment of the Law as proposed by Mr. Merritt, unless the issue of the Debentures for the payment of the back Interest shall be postponed until after the completion of the Canal, and until the tolls of one year shall amount to forty-five thousand pounds currency. With respect to the claim of the Private Stockholders to receive dividends un- der the Act of one thousand eight hundred and thirty-seven, it is not considered that the Stockholders refusing to accept the present law are entitled to such divi- dend in any event until the tolls received upon the Canal, after deducting the amount required for the charges now made thereon by law, which charges are con- ceived to include the expense of management and repairs, are sufficient to dischargo the amount of Interest on the sum borrowed under the Act ; and moreover it seems doubtful (the sum of two hundred and forty-five thousand pounds contemplated to be borrowed under the Act not being raised, and the small portion which was rais- ed not being applied to the construction of the Canal,) whether the contingency in which the Stockholders are to receive dividends can arise under the Act. If there be doubts on these subjects, they can be set at rest by a declaratory law. If this proposition be acceded to by the Private Stockholders, the Debentures for the one hundred and seventeen thousand pounds, may bear Interest from the first January, one thousand eight hundred and forty-three. ; . Appendix J. ; ^ • ; Mr. Durand from the Committee of the whole House, to consider the expedien- cy of amending a certain Act of the Parliament of Upper Canada, passed in the se- venth year of the Beign of His late Majesty, William IV., intituled, "An Act to ** provide for the permanent completion of the Welland Canal, and for other pur- *• poses therein mentioned ;" and also a certain other Act of the Parliament of IJp- per Canada, passed in the fourth and fifth years of the Keign of Her present Ma- jesty, intituled, ** An Act to authorize the Stock held by Private Parties in the " VVelland Canal, to be purchased on behalf of the Province ;" reported, according to order, the Resolutions of the said Committee, which Resolutions were again read at the Clerk's table, and agreed to by the House, and are as followeth : — Resolved, That it is expedient to repeal so much of an Act of the Parliament of Upper Canada, passed in the seventh year of the Reign of His late Majesty, William IV., intituled, "An Act to provide for the permanent completion of the " Welland Canal, and for other purposes therein mentioned," as provides for the income of the said Canal or any part thereof, being divided amongst the Private Stockholders. • Resolved, That it is expedient to repeal a certain Act of the Parliament of this Province, passed in the fourth and fifthyears of the Reign of Her present Majesty, intituled, "An Act to authorize the Stock held by Private Parties, in the Welland *' Canal, to be purchased on behalf of the Province," and to provide for the imme- diate issue of Debentures to the Private Shareholders, redeemable in twenty years from this date, and bearing Interest from the first day of January, 1843, which In- terest may, at the option of the Shareholders, be payable in London, at the rate of five per cent, per annum ; or in this Province at the rate of six per cent, per an- num ; nud further to provide, that so soon after the completion of the Canal as the toll shall amount, in any one year, to £45,000 currency, other Debentures shall be issued to the Private Stockholders, for the Interest on their Stocky for the time that the same had been paid in, such Debentures to be payable either in London, at the rate of five per cent, per annum, Interest, or in Canada, at six per cent., at the option of the Shareholders. Ordered, That the Honorable Mr. Hincks have leave to bring in a Bill to repeal a certain Act therein mentioned, and to make further provision for enabling the Provincial Government to purchase the Stock held by Private Parties in the Welland Canal. He accordingly presented the said Bill to the House, and the same was received and read for the first time ; and ordered to be read a second time on Thursday next. i m m^ w, n A^ i^!J Appendix K. i ^; . 4® & 50 VICTORIiE, CAP. XLVIIL An Act to authorize the Stock held by Private Parties in the Welland Canal to be purchased oh behalf of the Province. [18th September, 1841.] TI^HEREAS it is desirable to place the Welland Canal under the exclusive ** control of the Government of this Province, and for that purpose to provide for the purchase from the Private Stockholders in that work, of the Stock by them held, and which amounts to the sum of One Hundred and Seventeen Thousand Eight Hundred Pounds : Be it therefore enacted by the Queen's Most Excelient Majesty, by and with the advice and consent of the Legislative Council and of the Legislative Assembly of the Province of Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of the United Kiilgdom of Great Britain and Ireland, and intituled, '< An Act to re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada," and.it is hereby enacted by the authority of the same, That from and after the passing of this Act, it shall and may be lawful for Her Majesty's Receiver General, upon an order to that effect from the Governor, Lieutenant Governor or person administer- ing the Government of this Province, to issue such number of Debentures as may be required, to the several Stockholders in the Welland Canal, for a sum equal to the amount of Stork held by him or them ; and such Debentures shall be made redeema- ble in twenty years from their date, and shall bear an interest of two per cent, per annum on the amount for which they may be issued for the first two years, three per cent, foi' the third year, four per cent, for the fourth year, five per cent, for the fifth year, and six percent, for the sixth and following years ; which interest, as well as the principal sum, shall be chargeable upon and payable out of the Public Revenue of this Province. II. And be it enacted, That whenever the Tolls collected on the said Canal shall annually amount to the sum of Thirty Thousand Pounds, it shall be lawful for the Governor, Lieutenant Governor or person administering the Government, to authorize and direct the Receiver General of the Province to issue other Debentures to the original Stockhol(]ers or their legal representatives, for such sums as will make up six per centum Interest upon the amount of Stock by them subscribed and paid for, from the time the same shall have been actually paid in, which Debentures shall be made payable in twenty years from the date thereof, and bear Interest at the rate ot six per centum, payable naif yearly out of the Public Revenues of the Province. III. Provided always, and be it enacted. That nothing herein contained shall be construed to compel any Stockholder to accept Debentures for the Stock by him G.5 held 08 aforesaid, or, in cose of refusal to take the same, to deprive him from being paid from the tolls and revenues of the said Canal, according to the laws now exist" ing, having relation to the said Canal. IV. And be it enacted, That so soon as the Stockholders, owning two thirds of the Stock in the said Canal, shall have signified their acceptance of Debentures ia lieu of Stock, as hereinafter provided, so much of the eighth section of an Act passed in the seventh year of the Keign of His late Majesty King William the Fourth, intituled, "An Act for the permanent completion of the Welmd Canal, and for other purposes therein mentioned," as authorizes the Annual Election of two Direc- tors by the private Stockholders of the said Welland Canal Company, or requires the election or appointment of more than three Directors for the management of the stock, property, affairs and concerns of the said Welland Canal Company, shall be and so much of the said section is hereby repealrJ ; and a majority of the other three Directors shall be a quorum for the transaction of business : Provided alway&, that the Governor, Lieutenant Governor, or person administering the Government, shall have power and authority to appoint such three Directors, or any of them, annually, at his discretion. Appendix L. ■7 VICTORIiE CAP. XXXIV. An Act to repeal a certain Act therein mentioned, and to make further provision for enabling the Frovincii.! Government to purchase the Stock held by private parties in the Welland Canal. • [9th December, 1843.] WHEBEAS in and by a certain Act of the Parliament of this Province, passed in the fourth and fifth years of the Eeign of Her present Majesty, intituled, " A.n Act to authorize the Stock held by private parties in the Welland Canal to be ** purchased on behalf of the Province," after reciting that it was desirable to place the Welland Canal under the exclusive control of the Government of this Province, and for that purpose to provide for the purchase from the Private Stockholders in that work of the Stock by them held, and which amounted to the sum of One hun- dred and seventeen thousand eight hundred pounds, it was, amongst other things^ enacted, that it should and ought to be lawful for Her Majesty's Receiver General, upon an order to that effect from the Governor, Lieutenant Governor, or person administering the Government of this Province, to issue such number of Deben- tures as might be required to the several Stockholders in the Welland Canal, for a sum equal to the amount of Stock held by him or them, and that such Debentures should be made redeemable in twenty years from their date, and should bear an Interest of two per cent, per annum on the amount for which they might be issued, for the [first two years, three per cent, for the third year, four per cent, for the fourth year, %e per cent, for the fifth year, and six per cent, for the sixth and fol- lowing years, which interest and principal sum should be chargeable on and payable out of the public revenues of the Province, and that whenever the tolls collected on the said Canal should annually amount to the sum of Thirty Thousand Pounds, it should be lawful for the Governor, Lieutenant Governor, or person administering the Government to authorize and direct the Receiver General of this Province to issue other Debentures to the original Stockholders, or their legal representatives, for such sums as would make up six per centum interest upon the amount of stock by them subscribed and paia for, from the time the same should have been actually 10 00 I i ¥ ?. i ^ Ih. paid, whiQh Debentures were to be made payable in twenty years from the date thereof, and were to bear.interest at the rate of six per centum per annum, payable half yearly out of the public revenues of this Province, and that nothing in the said Act contained should be construed to compel any Stockholder to accept Deben- tures for the Stock held by him as aforesaid, or, in case of refusal to receive the same, to deprive him from being paid from the tolls and revenues of the Canal, according to the laws then existing ha\ ing relation to the said Canal ; And where- as by a certain Act of the Parliament of Upper Canada, passed in the seventh year of the Reign of His late Majesty Ki;ig William the Fourth, intituled, " An Act ** to provide for the permanent completion of the Welland Canal, and for other " purposes therein mentioned," provision is made for raising, by way of public loan, the sum of Two hundred and forty-five thousand pounds for the purposes of the said Act, and that the tolls received upon the said Canal, after deducting the amount required for the charges then made thereon by law, or so much thereof as might be necessary, should in the first place be applied to discharge the Interest which should accrue upon the said sum of Two hundred and forty-five thousand pounds, and that the remainder of the Income received by the said Company should be divided among the Private Stockholders until it should equal six per cent, on the amount of their investments ; And w' ^as by reason of difficulties arising from the state of the Provincial Finances of L ^ or Canada aforesaid, a small part only of the said sum of Two hundred and forty-five thousand pounds, was actually rais- ed, and the Canal vas therefore not completed by means of the said loan ; And whereas the said Canal is in progress of completion by means of other and larger itums of money received for that purpose than the sum provided to be raised under tliC said Act; And whereas therefore, the circumstances contemplated by the said Act, under which the aiiid Private* Stockholders were to have received dividends from the Income of the sai:l Canal, have not arisen and cannot now arise, and it is therefore expedient to repeal the said provision for the payment of such dividends ; And whereas it is represented to be for the interest of the Private Stockholders aforesaid that the said first in part recited Act should be repealed, and other provi- sions enacted in lieu thereof: Be it therefore enacted by the Queen's Most Excel- lent Majesty, by and with the advice and consent of the Legislative Council and of the Legislative Assembly of the Province of Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of the United Kingdom of Great Britain and Ireland, intituled, " An Act to re-unite " the Provinces of Upper and Lower Canada, and for the Grovernment of Canada," and it is hereby enacted by the authority of the same, That the said first ia part recited Act, and the said Act of the Parliament of Upper Canada, in so far as the same relates to the division of the Income of the said Canal, or any part thereof, amongst the Private Stockholders, shall be and the same are hereby repealed, ex- cept in so far as the same repeal any former Act or Acts of the Parliament of Upper Canada or of this Province. II. And be it enacted. That there shall be charged upon the Consolidated Reve- nue Fund of this Province, for the benefit of the private Stockholders in the said Welland Canal, the sum of One Hundred and Seventeen Thousand Eight Hun- dred Pounds, currency of this Province, with interest thereon, from the first day of January, in the year of our Lord one thousand eight hundred and forty-three. III. And be it enacted. That it shall and may be lawfulfpr the Governor of this Province in Council, to direct the Receiver General of this Province to issue sucli number of Debentures as may be required, to the private Stockholders in the Wel- land Canal Company, not exceeding the said sum of One Hundred and Seventeen Thousand Eight Hundred Pounds, currency, at a rate of interest not exceeding five per cent, per annum, if the said Debentures -and Interest shall be payable in Eng- land, or not exceeding six per centum per annum, if the said Debentuires and In- n? tcrest shall bo made nayablc in Canada; and that tho Debentures or other Securi- ties to be issued shall bear date the first day of January, in tho year of our Lord one thouiiand eight hundred and forty-three, and the interest thereon shall be pay- able from thence on the first day of January next succeeding the issue thereof, and from thence half-yearly on the first day of July and tho first day of January, in each year, until the principal sum shall be paid, and such principal sum shall be made payable in twenty years from the date of the said Debentures. lY. And be it enacted, That it shall and may be lawful for the Governor of this Province in Council, to direct the issue of the said Debentures to tho private Stockholders according to their respective claims, and such Debentures shall bear the rates of interest above mentioned, and shall be payable either in London or in this Province, as such private Stockholders shall respectively desire, and at such place therein as the Governor in Council sliall direct and appoint : Provided al- ways, that nothing in this Act contained shall bo held to invalidate or make void any Debentures heretofore issued under the said first in part recited Act. V. And be it enacted, That it shall and may be lawful for the Governor of this Province in Council to direct the substitution of the Debentures to be issued imder this Act, in lieu of the said Debentures already issued, uj)on application of the par- ty holding the same. VI. And be it enacted. That so soon after the completion of the said Canal as the tolls received thereon for any one year shall amount to the sum of Forty-five Thousand Pounds, currency of this Province, there shall be charged upon the Con- solidated Revenue Fund thereof an amount equal to six per ccntuln per annum on the private stock subscribed from the time the same has been paid in, for the benefit of the private Stockholders aforesaid, or their legal representatives. VII. And be it enacted, That it shall be lawful for the Governor of this Province in Council, at any tirtie after such receipt of tolls, to direct to be issued to such pri- vate Stockholders, or their legal representatives, Debentures for the amount of their respective claims, bearing interest and payable in the same length of time after their issue, and at the same places, respectively, as if the same were issued under the foregoing provisions of this Act to the private Stockholders aforesaid for the prin- cipal sum invested by them. VIII. And be it enacted. That in case any certificate or certificates, or other do- cuments, have been issued to any of the said private Stockholders, or their legal representatives or assigns, signifying that they or any of them are or shall be enti- tled to receive the back interest mentioned in the said first in part recited Act, or Debentures therefor, those who shall lawfully hold such certificate or other docu- ment, shall be entitled to the same payments or Debentures, and to none other than they would be entitled to under this 'Act if such certificates or other documents had ndver issued. « .. • # % ■ . , • No. 16. Secretary's Office, June 13, 1853. Sir, — I have the honor, by command of the Governor General, to acquaint you, for the information of the pari. !8 interested, that His Excellency has had under his consideration in Council the several renewed applications recently made by you on behalf of the Private Shareholders* in the late Welland Canal Company, urging the right of such Shareholders to claim six per cent, per annum upon the amount of their paid up Stock, from the time the same was paid in until the year 1852, when the Tolls of the Canal reached the sum of £45,000, and submitting certain legal 08 If P ! Opinions from seiroral eminent Lawyers, &o.) in England and the United States, in support of those pretensions. His Excellency has also had under his consideration, in connection with the above, a printed Memorandum submitted by the Honorable Attorney General for Upper Canada, containing a full detail of the facts connected with this claim, and of the reasons which operate against its being favorably entertained ; nnd, jn view of all the facts. His Excellency must adhere to the decision previously arrived at npon the matter, viz. : that the claim in question cannot be entertained. I His Excellency has, moreover, considered your request, made subsequently to tho preparation of the Memorandum in question, that the rights of the Stockholders may be considered in relation to the Statute, and not with reference to the equitable grounds set forth in your former Memorial upon the subject, and that (in the event of the Executive being of opinion that the Stockholders are not entitled to the amount claimed) the question may be referred for decision to some legal tribunal eitheir in this Country or in England. In reference to this request, I am directed by His Excellency to state, that the reasons given in tho Memorandum appear to apply to the legal as well as to the equitable view of the subject, and that there does not seem to be anything in the nature of the claim (which neither on legal or equitable grounds can be admit- ted) to justify His Excellency in referring the question to a legal tiibunal, as doing 80 would be a dejparture from the ordinary rules prescribed by the Government when demands oia like nature are presented. / « I have, &c., A. N. MORIN. The Honorable Wm. H. Merritt, M.P. r W Hi 1 KM r 1 i ;-A ■ •T)A\'c- ::■ if 9 1 i i' A- PRINTKI) ny R«)MA> CA|IPJ)£I'L, GARDEN STREET, QUEBEC. 9^' \