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SEIGNIORIAL QUESTIONS; A COMPILATION CiiiUining the Seigniorial Act, the Imendinent to the Seigniorial Act, of d85S, the Qaestioo* inlmitted bj the Attornej General for Lower Canada, the Connter-Qnestions snbaitted by dirers Seigniors, the Proceedings and Decisions of the Special Court constituted under the aathoritj of tht Seigniorial Act «f 1854, the Pleadings and Memoirs of the Admatei, and the Obserxations of the Judges, &c., Ac. Editors : MM. LELIEVRE & ANGERS. PRINTED, Partly at Quebec, by A. C6t£, & partly at Montreal, BY Duvernay Brothers. 1856. ; TABLE Of the matters contained in this volume. PAGKS. 1. Opinion of tho Ilonorablo Bowen, Chief Justice la 2. Opinion of the Honorable Justice Aylwiii 16 3. Opinion of the Honorable Justice Duval , 1 c 4. Opinion of the Honorable Justice Caron Id 5. Opinion of the Honorable Justice Day 1 « 6. Opinion of the Honorable Justice Smith \f 7. Opinion of the Honorable Justice C. Mondelet 1 g 8. Opinion of the Honorable Justice Meredith \h 9. Opinion of the Honorable Justice Badgley 1 i 10. Amendment to the Seigniorial Act of 1856, with an index to tho Seigniorial Acts \j I 1 a OPIXIOIV OF Tin: HONOnAHLK E. BO WEN, i:ii::i- .];\>ti(;e of the sfpehk^r cdert FOR LOW i:i\ CANADA. Tlio course nsutilly observed in Courts of Justice when renclerini>- judi^nient as between party and party, is, [ adiuit, that the .Iudi>es state their reasons serialim in su|)|)()rt of or Mi^aitist il, as the case may hapj)en, before the judgment is delivered, but I believe our reasons, when^ there is a dissent on the part of any Judge, in tlie present instance woiihl be much better uncU-rstood were the subject matter hiid open by the previous reading of tlie numerous Questions sub- mitted with the several Answers adopted by the majority of the Judges ; but being over nded in this respect, I acquiesce, as I am bound to do, in the present mode of proceeding. After studying attentively the several Factums so ably (hawn, as wcdl by the Counsel for the Crown as by the learned Advocates for the Seigniors, and upon which much pains and great labor have necessarily been bestowed ; and considering the very elaborate and profound expositions " historiques " and " legales," delivered by the leorned President on the subject matter of the deliberations haa '>y the Judges, as well upon the several Questions submitted to them by the Attorney General, under the provisions of the Canada Tenures Act of 1854, 18 Vict. cap. 3, as of the Counter-Questions by several proprietors of seigniories in Lower Canada, it cannot be fitting or expedient that each (^f the Judges now present should repeat the reasons and grounds for the opinions and ansM'ers given to the Ques- tions and Counter-Questions so submitted ; unless, in so 2a far as they are nceossarily involved in the diseussion ol those parts of the suhjeets under eonsideralion, on whiirh a didi'renee of opinion may happen to \nt entertained, from that held l)y the majority of the Ju(lg(!s, for in sneh ease it is highly proper th.'it the parties \vhos(? intenjsts may Ix; aHccted by such answers and decisions should lie mad(! a('(|uainted with the intlividual reasons of dissent ; I will therefore proe(;ed to state, in the few(!St terms possible, my reasons of dissent upon the very few points in relation to which I feel constrained to differ at all from tlu; majority of my colleagues. It may be well to observe here, that our answers, strictly speaking, cannot be called the judgment of a Court of Justice, for the proceedings bear rather the character of legislative proceedings or of a declaratory act intended to guide and assist the Commissioners in settling the in- demnity to be awarded to the ])roprietors of seigniories in Lower Canada, coming under the operation of the T«^nures Act, than as the judgment of a Court of Justice. The Crown Officers have classed the matters for our opinions principally under four heads though the Questions under each of these are branched out and repeated in difle- rent forms, some of them probably, strictly speaking, but of little practical utility in deciding the matter. The four principal heads of inquiry are : lo. The right oi cens et. rentes^ whether the rate was fixed or not, and whether the Seignior was bound to concede or not, and if so bound, at what rate he must concede. 2o. The right of Banality, its extent and consequences. 3o. The waters, navigable and non navigable to whom do they of right belong ? 4o. The extent and legality of certain reserves in the con- cessions made by the Seigniors to their Censitaires. 3a or Und(!r the first lirad, the rij^lit t)f irns it rentes^ and wa^ there! a fixed nite, at whieli Si'i,i,'ni<)r.s were hound to concede ? On \\\'\» point there are, I l)eliiv,(', l»iii two dissenting voices, all th(! other .Ind<,'es heing of opinion, that th(! rates were not fixed by any known or positive; hiw, and that they wiire dillerent in almost every s(!i^niory, and often times diflered even in tiie concessions of one; and the same seignit)ry. Then as to the assertion whicli has been so repeatedly made, that the Seignior, in Canada, was l)nt Ji mere trustee or Jideirommis^ and bound to concede on the th'mand of any one desirous of obtaining a coneeission of land, I hold, as 1 believe the gr(!at majority of us do, that tin; Seigniors hat' the domiuinm jilenum^ the absolute right of property in ilieir seigniories, and were under no l(!gal obligation whatever to concede previous to the Arret of Marly of 1711. In several of the grants we find the following words, the grant is made " en toutc propriele^ justice et seigncurie el a toujimrs^'''' words of more absolute and uneijuivocal import could not hav<^ been used, nevertheless it was certainly the interest of the Sovereign and the interest e)f the Seigniors to concede, for if they neglected to settle the lands by themselves, or those under them, they incurred the risk of having their seigniories reunited to the Crown, failing to fulfil one e)f the conditions of their grant, namely, " de tenir feu et tieu^'' te) cause dwellings and clearances to be made ; but when the Arret of Marly of Cth of July, 1711, was promnlgateel, the Seigniors from thence forward were bound to concede on demand, and upem their refusal so to do, the Governor, Lieutenant General and the Intcndant, who by the said ArrU were created, not a Court of Justice, but as an exceptional execu- tive and administrative body, delegated to carry eiut the tJien views of the Sovereign for the settlement of the^ colony, which persons or delegates, upon the refusal of the Seignior to concede, (he having been previously duly summoned so to do,) were authorised to reunite le) the demesne of the Crown, the land so demanded and refused, i 4 a HJi'l lliciciipon lo iiiJikc a tfrjirif ol it to tdc Af>()licaiif, l\\f rit/s if rrntts and riih tuiHcrs in that <'aM' hcin^ iiiadr j»ayal)lc to the Crown, to the cnlire exclusion of tliu Sei^Miiur 'vlio had >"(> ri'l'iiMfd to roncrdc. That this ArrrI and that of 17.'),', in aid iht'ifol', cnnlinnod ti) he hiw down to the period when Canaihi, in nCiiJ, was (.'iMh'd to (Ircal Britain, is unth'oiahh' ; (tho' I hflicvc they vvje(;t howevertolhe lloyal Instructions to Ciovernor James Murray, ol'2()lh .liuie, HIH), and until the passin<^ of the British Statute, in 177 1, wherehy the whole Fn-nch System was reintroduced and reeoi,'nized as law, the St!itut(> II, (ieo. (II, cap. H;J, havin<( enacted, " that, in all matters of '• controversy relative t(» properly and civil ri^dit, resort shall •'• Ije had to the laws of Canada as the ride ("or the decision •' of the same," This tiien brinii^s me lo ofie point of my dissent from the juajorily of the .Jud^fcs, namely, as to the existence of the /Irrt'Y of Marly of Gtli ,Iuly, 1711, as law in Canada, from ind id'ter the year 17G;J, or what amounts lo the same thing ju elleet, namely the non existence of any Tribunal or Per- sons possessin,nt, such charges and reserves not beini.' rcdcvautrSy ouf,'hl to be declared illeLfal, being in direct con- tradiction with th(! provisions of tlie said Arret of 1711, nevertheless they have been maintained in the Courts as valid and binding contracts ; so that, for all practical pur- poses, it is of little moment, whetiier these Arrets be consi- dered in force or not, as the Seigniors can enforce the payment by the Ccnsitaircs of the several charges and reserves contained in their contracts of concession, an(J l)eing so entitled, the Seigniors cannot claim at the hands of the Commissioners indemnity on that score. Much has been written and said to disprove the assertion, that the Arrets of 1711 and 1732 had fallen into desuetude from non user during a lapse of nearly hundred years since t.'. '■ V r'M 6 a the cession, and from which period, they have not been (enforced ; the law on this .subject is thus laid down by Solon. " L'abrogation de la loi, par le non usage, repose d'un " cote sur le concours tacite et general du peuple qui refuse " de I'executer, et d'un autre cote sur la volonte du legis- "• lateur et I'aulorite qui tolerent cette non execution." Again Ik; says, as to the facts necessary to show that a law has gone into desuetude : " Que les faits sur lesqui-ls on " veut faire reposer la desuetude coinnie ayant abroge la " loi, Solent iriulti[)lies, ([u'ils puissent etre en (pielcjue sorte " attribues a la generalite des habitants." " Tacilc omnium " cow.vcwi-w," Now if it be true, as will be asserted, that a mere non usa^e is insullicient to abrogate a law, and that a jiractice contrary thereto is likewise necessary, have we not, under the priucijile contended for that every contract between .Seisfnior and Censitaire not biMnij con Ira boii.os morea or ]>roliibited by some j)ositive public law, have we not, I say, overwhelming evidence that these Arrets^ tho' intended to be d'ordre public iiave invariably been treated as iVordre ])rive^ to whi(!h the maxim " TJnicuique licet jns pro seintro- ducto renunciarc^'' is strictly aj)plicable, and have been ■univith(T; it is true that these Arrets were invoqued, but in neither of the cai' -js did the party invoking bring himself within the letter or the spirit of the Arrets supposing them to be law ; consequently in the one case the Demurrer wa« maintained and the action dismissed — and in the other, the Peremptory Exceptions and the evidence adduced thereon were not sustained. It is true, a case, in Montreal, of Franc^^ois Lavoie vs La liaronne de Longueil has been cited, in which the Court and the late Chief Justice Reid (whose opinions are justly entitled to the highest consideration of every one), over ruled a Declinatory Exception, in an action brought under these Arrets^ and it was held that the Governor, Lieutenant Ge- neral and the Intendant constituted a C(»/r Roi/ale, and therefore that their powers passed to the Courts erected under the Statute of 179 1, but I cannot acquiesce in the 1.;, ■i 8fl correctness of tlial ruling, for they did not constitute a Court of any description, much less were they a Coitr Roijn/e, we might, with as muctli j)ro|)riety at the present time, call the Governor and Executive Council, a Cour Roijale. The Governor and Executive Council were at one time a Court of Appeals, but were created such in virtue of a positive law to that eflect, and not as cxcMcising a delegated power from the Sovereign such as that alluded tt). The case however did not go to a final judgment. Fciils rt articles to La IJaronnc were exhibited and allowed by the Conrt at Montreal, tho' they charged her with fraud, but that allow- ance was revers(!d in Appeal, and so tin,' case ended without a final judgment. Before closing my observations on this head, 1 Ixg to rcmnrk that in voting with the majority, in answer to the 6th and 7th Counter-Questions, proposed by Filmer, thai tiiese Arrets were not repealed by the Imj)erial Statutes 3. Geo. 4, ca[). 1 19, and G Geo. 4, cap. 59, I must b(> understood as not admitting that the said Arrets continued in force, hut, on the contrary, that these Imperial Statutes did not repeal these Arrets^ because, in myoj)ini()n as before stated, they had entirely censed to be law or to (>xist, having fallen into perfect desuetude by lapse of time, and consecjuenily that there existed nothing to repeal or annul by the said Statutes. I shall add nothing further to the grounds of my dissent to that part of the decision about to be given munely, in answer to the twenty-first Question, submitted by the Attor- ney General, which is thus conceived : " These laws were still in force at the time of the passing of tlie Seigniorial Act of 1854." I now come to the second head, the right of banality, its extent and consequences. On this subject I entirely concur with the majority of \\w. Judges in the answers which will presently be given, for, :; in rov- 11^ lor, I 9a tlio' '.m opinion is entertained by one among.-t us that thr right of banality was necessarily coeval wilh that (f the lirst settlennmls in the Country, it appiNirs to me to be but ol litlh' monient at this day to consider, whether such might have been the case or not, tho' it must be self evident, it would not have carried with it any of the exclusive rights ii:iven l)y the Arret of 1G86, since it must liave b(rs and the i)eaches and beds thereof, between high and low water mark, belong exeiusivelytothe Crown, for the benefit of the public, I -.ri' it 10 a in lilcc manner as highways, and that no individual can (^iainj or hold any part of such navigable river or beach unless it be in virtue of a special grant from the Sovereign. But as to non navigable rivers, streams, lakes or where iliey {bah^nent) wash the lands of the Seignior, they, in my i)[)inion, belong to him exclusively, by virtue; of his titles as Feudal Seignior, tho' some among us hold that they are the properly, not of the Feudal Seignior, but of the Seignior Havt-Jiisticier. It is not perhaps of much importance to consider the latter pr()j)osition, in as much as altho' in some grants, the right of haule^ woijennc et basse justice^ is to be found, yet I believe that there were not more than two or three instances of the exercise of the right of haute-justke iu Canada before the cession, and most certainly no instance of the kind since. There are many eonllicting authorities to be found in the hooks as to the rights o[ Hants- Justiders ; in this particular it being held by many that they had only llie police over, these waters, bnit arrogated to themscdves, under tliat pretext, !he right of property therein. It may be well to cite one or two out of a nuiltitude of authorities, to h^liow how this matter was generally under- stood in France, namely that es paijs de droit ccrit the Ilauts-Jiistidcrs were held proprietors ; but tliat, dans les pnijsde CoutumCy they belong to the Seignior foodal. " 5, Traite des Fiefs, p. 664, verbn Rivieres. " Nous parlous des petites rivieres ([ui arrosent les sei- '• gneuries particulieres qui ne portent point bateau, si ee '' n'est par artifice au moyen d'ecluses. " Chopin, Rivieres, no. 25, les appelle rivieres banales, '' rivieres de cens, id est, au Seigneur du torritoire. " Bacquet, Droits do Justice, c. 30, no. 25, dit que dan.«« '• ces petites rivieres, le Roi, ni les Seigneurs hauts-justiciers I I i 11 a al can beach ; reign. where in my illes a?( are the eignior inee to n some s to be two or ^-justice nstanee l1 in the irtirnlar CO over, pretext, itude of imder- ciil the ans les lies sei- [i, si ee |>anales, le clan?> Isticiers " n'y ont pas plus de droit que sur un autre la-ritage appar- ••' tenant aux particuliers, " Cette maxiine est contraire a la pratique luii erselle de " la F'rance, " is pays du droit ecril^'' oii eonimunementelle* "'■ appartiennent aux hauts-jusliciers. " Ijoutiller, Souime Rurale, liv. 1, ch. 73. " Loysel, Inst., liv. 2, tit. 2, regie G. " Dans les pays de Contume, elles sont generaleinent un " droit de fief, le Seigneur haut-justicier pout y avoir la pt)- '' lice, mais la propriete qui emporte droit de moulin et de " peehe exelnsif appartient au feodal. " Le Bret, Droit de Souverainele, liv. 2, (;li. 15. " En Norniandie, les arts. IGl, 206, 207, 210, nous proii- '• vent bien clairernent que les petites rivieres appartiennent '• aux Seigneurs feodaux, la peclie, le droit de cours d'eau '• ft de moulins sont droits do fief." As to the CU'iisitairc^ he being a pro|irielor riverain^ wliose land is bounded by a ranning stream, or non navigable river, I hold he lias no property whatever in such running stream or river, unless by an express grant ther(!of to him from his Seignior, but that all lakes or (nrnds, les eaur viortes, which arise or spring within the limits of the con- ce.'^sion, do belong to him the Censi/ntre and not to his Seignior. Under the fourth head, viz: as to the extent and lesfalitv of tlie reserves. I wish here to be perfectly understood with respect to the ivserves, and to distinguish those made in concessions prior to 1759, (if such now exist,) that is while the Arrets so often alluded to wen; in force, which required the Seignior to con- etde auT redevances accoutumees., and such concessions as l^ Hi] ■|.,S ll !,' l'2a have been made? by Seigniors siibsi'qnont to the cession ol Caniuhi to the IJritish Crown, when if my view of the snb- jeet be correct, and that these Arrcfs ceased to have any ef- fect, then whatever reserves may i)!ive been mutually agreed upon since 1759, must be held binding as between Seignior and Cmsifuirr, and no Court of Justic^e would set tlieifi asitle. It is held by some of the Judges, that any reserve which may have bei-n made between Seignior and Cr//s/tair(\ (no mailer at what time made), if not prohibited by some posi- tive law, or not being " vonird bonus morcs^'''' is lawful and binding, Jn certain res|iecls I feel boimd todilier with them for some of the reserves t(; b(! i'ound in the concessions, bet- ween 17 1 1 and the period of the cession, ought not to prevail, for though the Seigniors were not limited as to th(! amoun! o( ecus ct rentes^ they were nevertheless, during that period, in virtue of tin; said Arrets^ held to concede a litre dcsrccb- vana's acronlinmes. Now any resi>rve which did not par- take of the character of a ra/cvaiicc, rech'lus^ which meatis an annual payment by the Ct'iis/'fa/rc to his .Seignior, (in money, grain, fowls, or such like,) ought to be held illegal, with lh(! exception of the corvee, which when not exacted in personal labor, was generally estimated and paid in n)o- ney at or about 2s. p^r die in. The Crown Oilicers have adtnitted that, by universal sul- france or (atstom, the reservation of limber for the building of the manor house, mills and churches, without indemnity, seems to have been sanctioned, being for the public good. With respect, however, to churches, if I mi^takc not, no such custom has prevailed. The Legislature has imposed on the habitants the obligation of building churches, the parish- ioners are generally assessed in labor, money and materials of dillerent descriptions ; with respect, therefore, to the last mentioned reserve for the building and repairs of churches, as also, the reserve of firewood for the use of the Seignior, the reserve of wood for commercial purposes, the reserve ol \ 'I ,1 « i (in liiu- i 13 a mines and niineralf^, (oilier tlian ^^old and silver,) llic reserve ol s;ind, slone lime and sncli like, may well be deelared to liave l.)een illegal during ilie existence of the Arrets ol' 1711 and 173:2. 1 lioj)e 1o liave made myself intelligil)le as to llie grounds olniy dissent as here stated. 1 may be in error tlirougliout, Init sueli being my views on the dil]erent points alluded to, i! Ijceomes my duty to declare them I'recdy. Called as I fell I was, under the provisions of the Canada Tenures Act, to answer the several Questions pro])ounded to t!i(^ Judges, for the soh; purpose of assisting by their answers tlie Commissioners in the diseharge of their arduous duties, and not to write either a history of the early settlement of ll:i' Colony, under the freneh Crown, or a treatise on feudal tenures, 1 have abstained from attempting either, and by not doing so as some of my learned brethren have so fully and ably done, it may be thought I have slight(!d tlu; sub- ject, but such 1 must Ix^ permitted to say has not been the ease, \\\o whole matter has engrossed my imdivided attcn- liou and received the fullest consid(>ralion, it was in my power to bestow on the all important and various ^-ubjects of our deliberations. ding Isucti the irisli- •rials last •Jies, tnior, /e of n 111 c; w lir lif lai an an ho (ir bu lai by Ge an( 'JV inii tut or i anc lu'r ofs OPINION OF THE HON. ME. JUSTICE AYLWIN'S. In delivering my opinion upon this occasion, I deem myself called upon to begin by adverting to the first snppl(>- inentary or coiinter-cniestion submitted by Dame Louis*- Chartier de Lotbiniere, wife ollhe Hon. lioberl I'liwin ilai- wood, and the proposition stated to this ("oiirt, on her be- half. That proposition asserts that the Arrets and Declara- tion of the King of France, upon which such stress has been ., laid by Mr. Attorney (ien(!ral, cannot lie held to atfeet, in any wise, any huids in Canada beting within the enclave ol' any fief or seignenrie : — Firstly, as lo which the seignior holding the same may have obtained from tlu; Crown of I Creat Britain and Ireland, a comnmtation of all feudal I burthens due to the Crown thereon, and a re-grant of the lands thereof under the tenun; of free and common soccage, by virtue of the Statutes of tli(.' Imperial Parliament, the :i Geo. IV", e. 119, commonly called the Canada Trade Act, and the Act of the G Geo. IV. c. 59, known as the Can;ula Tenmx's Act ; — or, secondly, as to which the seignior hold- ing the same may, in the terms of, and under the said Sta- tutes, or either of them, duly have applied to Her Majesty, or any of her predecessors, for such commutation, release, and re-grant ;~-or, thirdly, as to wliich the seignior may hereafter apply ; — or, fourthly, as to any per.son holding any of such lands whether enjief or otherwisf; ; — or, fifthly, in 1 i, if m 'J /> n-spttcl of any contracl^* Uifrt'to bi-lougin;^'. My aHcndoii j.-j liisl clin.'ctL'd ti> tills proposition, bi'canisf, \\ IkiIcvit may have btH'ii the object ol" the party who as.serteii if, il'lnic, ita praelioal and ni'cessary result, and the ecjiiseiiiienee arisiiiL' therelroin ar(.', not, only to supersede the Arfil.s (inil Dcckl- railon relerred to, but the \ery staliiU' (.1' th(; Prt)vinee by which this (..ivirl i - empowered to sit here. AVhatever uiay be the (•(Hiseijtienees, and 1 am deep!) impressed with their inij)ortanee, they eannol wei_^■h a J'eathei in llie scales ol' justice. It is nri.;i'd, then, that the slatnles oC (he Imperial Parliament in queslien, are in lull idrce, and entitlt! llie o\vn(.'rs of seii^tiiories to obtain iVom the Crown a eomnnita- tion of tenure now, and at all limes hereai'ler, liil repealed. To test the (jueslion, each of the two statutes upon this sub- ject must be c .;nuin(Ml, ]5eginninL![ wilh the first in order of time, the 3 Ceo. IV, c. 119, the reader will Va lee, that it is an Act for the rci^ulation of Canadian trade, and that yet it contains tw^o provisions luieonneeted with the subject and relating to one very difl'erent, namely, the Tenure of Lands in Canada. 'J'hese ])rovisions are contained in the iJlstand 32nd sections, w liieli are as follow : — 1 " XXXI. And whereas uonbis have Ix^en on(crlain".d whether the tenur(> of lands williiu the said Pnn-inccs of Upper and Lower Canada liolden in Jief and seigniory can legally be changed ; And "whereas it may materially tend to the im])rovemcnt of such lands, and to the general ad- vantage of the said Provinces, that such tenures may hence- forth be changed in manner hcrcinaficr menlioned : Beit therefore further enacted and declared, that if any person or persons holding any lands in the said Provinces of Lower and Upper Canada, or either of them, iiificf and seigniory, and having legal power and authority to alienate the same, shall at any time from and after the commencem'-nt of this Act surrender the same into the hands of Ills Majesty, His heirs or successors, and shall by petition to Jlis Maje;^ty, or M •Si o o CCS of ry can V lend 11 ad- lencc- i3e it son or x)\vcr niory, same, f this y, Hi. I I I U) iln- ( Jovcrrior, I..itM;tfU.ini-(IctVfrii()r or ()f'rsi)M adruinivlt* r- J!i'^' the (lOvrrriiiK'fit of til'' I'niviiif'i' in \vlii(;li llic lands so lioldcii shall I)'' sij.ii'lcd, si'l lorlli lliat lie, she, or tlicy, is or an; dcsiion-^ ol lioldiiu:^ llic saiiu; iii free, and common soc- c(i,u;c, siirli (i 'Vcrnor, laciiicuMit-CIovcrnor, or person ad- niinistcriiir; ' c (i()V<'niin('n' (1 siicli i'roviucu' as jil'orcsaid in ])iirsii:;M' of His Miii('sty''s insliiiciions, transniiltod tliroiiL;!) Ills i'liacipal Sccrdary (>f Slat(,' for Colonial AU'r.irs, and liy aiul willi tin' acUicc and coiisciil ol'llic I'A'i'cntive Council of siicli l'r()\ Inc", shall can-^c a fresh ^a'unt to bo made to such person oc persons of sncli IimuIs to he holdcn in frcf and cotnmnn soccnfj;r^ in like 'manner as lands arc ■now liolden in free and common fiocraur in lliat part of Great Rrilain called ilns;land ; snojec-l neveitheless to p;iy- iiiciit to His I\[;ijesly, l>y such ;rran1ee or q-rantees, of sncdi siuii or sums of nioiiev as ;:nd (or a, (orruiaitMlion lor the lines and olhi'r dues wiiicli would liav(; Ix'cn ])ayal)le to Ifis Ma- josty nn[islaturn of this Province, by passing our own Act of the 10 & II Vic. c. Ill, recognised its beneficial tendency, it if* intituled '' \n Act to facili- tate commutation of the tenure oH lands en roture in llic Queem's Domain into that ol e and common soccage, and to avoid the unnecessary delays and iixpensc heretofore in- cidental to such commutations," and provides as follows : — " That whenever, pursuant to the aforesaid Act, passed in the Third year of the Reign of His late Majesty King George the Fourth, by the Imperial Parliament, intitulcMl : " An Act to regulate the trade of the provinces of Lower and " Upper Canada, and for other purposes relating to the said " provinces," any person, holding land, real or immoveabh? proptTly d Hire de cens et rentes within the censive of any fu'f or seigniory of Her Majesty in this Province, or in any of the estates of the late Order of Jesuits, shall be desirous to obtain a release from Her Majesty of all feudal or seig- niorial rights arising therefrom, and to conmiute the tenure of such land, real or immoveable property from that en ro- ture into free and common soccage, and shall apply for this purpose to the proper officer or agem thereinafter mentioned specially appointed and duly authorized by the Governor or person administering the government of the province for the time being on the part of the Crown, for the fief or seigniory in which such land, real or immoveable property is situate, setting forth in his application by writing the description, according to his titles, of the laud, real or immoveable \no- perty, the tenure whereof he is desirous of commuting, ex- hibiting also therewith his titles, and requesting comnmta- tion of the tenure of such land, real or immoveable property and shall have been mutually agreed upon by such officer or agent on the part of the Crown and the applicant, as the commutation fine, indemnity or consideration in that behalf, to be paid to Her Majesty on the intended commutation, or that shall have been fixed, ascertained and determined in ■M t> h manner hereinafter provided, atid have al.si) duly paid or se- cured the payment of ail arrears of seii(iiiorial rights, dues and duties which he, she or they owed or may owe Her Majesty thereupon, or with wdiich tlie said land, real or im- moveable property in respect whereof such commutation, release and extinguishment may be sought or required, liad been, was or may then be chargeable in favor of Her Ma- jesty, such ofHcer or agent shall be and he is hereby autho- rized to execute a release by act duly executed before no- taries, as nearly as may be in the form prescribed in the Schedule of tills act (and for which the notary shall be en- titled to a fee of twenty shillings, and no more, from the ap- plicant) in the name of Her Majesty, of the said land or real property, from all feudal or seigniorial rights, dues and in- cumbrances arising and accruing thereupon, to Her Majes- ty by reason of the tenure thereof a titres de cens et rentes et roture, declaring also the tenure of the said land to be in virtue of such release fur ever thereafter commuted into that of free and common soccage, and wliich release and act or deed of Commutation shall be deemed, held and taken to be to all intents and purposes tantamount and equivalent to a grant of such land from Ifer Majesty, her heirs and suc- cessors as provided by the above recited Act of the Imperial Parliament of the third year of the reign of His late Majes- ty George the Fourth, and the commutation of tenure of the said land or real jiroperty shall therel)y be jjcrfcct and ac- complished, and the land to which such commutation shall relate be for ever thereai'ter held in free and common soc- cage, according to the true intent and meaning of the said Act. It is to be observed that the commutation under tiie 3 Geo. 4, c. 119, was to be obtained " in manner hereinafter mentioned," that is, by surrender and petition. Our Colo- nial Statute provided a shorter and less expensive process fo facilitate the working of the said Act, and, by the 9lh / the 3 nafter Colo- )rocess IP 9lli section, it enacts that those who take advantage of it^ although their tenure shall be free and common soccage^ yet, unlike lands so held in England, shall hold them, so far as respects descent, alienation and dower, as if they were held en franc alcu rotnrier. The words " shall have been so as aforesaid commuted under this Act, or any olher law in force in t!:is J^rovince," are open to much observation unnecessary at this time, as they are susceptible of being construed into the future, and not as contemplating a retros- pective effect. This Act of legislation was not sanctioned by the Governor in the usual Avay, but was reserved for the signification of Her Majesty's pleasure thereon. The Royal Assent having been given to it, it was proclaimed as law on the 11th December, 1847, a fact which is to be remarked now, tiiongh il mu.-il be r!ior(^ fidly nolieed liereafier. The operation of tliis Colonial Act is limited lo the Queen's do- main andHerecnsitaiies, as falling under the o;Jnd section of the Trade Act, and hsis no reference to fiefs or tlieir holders, as viewed bv the 31st section. It is an aliirmative statute, and contains no negative, express or implied ; it gives greater facilities to carry out the Imperial vStatute, but does not undertake to alter or repeal it. The new manner of obtaining a cominutation is perfectly consistent with the manner of proceeding under the imperial Statute, and both may coexist. So that the apj)licant lor commutation, desi- rous of obtaining it under the soccage tenure as lands are held in England, may still continue to obtain it, with its incidents, by pursuing the more costly and diflicult course prescribed by the Imperial Statute, while another censilaire of the Crown may obtain, witli much greater facility at less expense, a regrant by the free and common soccage tenure, but with the incidents of franc aleii rolurier. To pass now to the Imperial Statute of the 6 Geo. -1, c. 50, it will be founil that the restricted application of the Geo. 4, c. 119, to seig- niors and tenants of the Crown, led to a further interference ,1 ^ f iH' 8 h on the part of the Imperial Legislature, for the purpose of extending its operation. The Statute now in question is intituled " An Act to provide for the extinction of Feudal and seigniorial rights and burthens on lands held u litre de fief and a Hire de cens in the Province of Lower Canada, and for the gradual conversion of tliose tenures into the tenure of free and common soccage, and for other purposes relating to the said Province." It provides: " That whene- ver any person or persons holding of His Majesty as pro- prietor or proprietors oi any fief or seigniory in the said Pro- vince of Lower Canada, and having legally the power of alienating the same in which Fief or seigniory lands have been granted and are held d litre defief in arrierefief, or a litre de cens^ shall by Petition to the King, through tlie Go- vernor, Lieutenant Governor, or Person administering the Government of the said Province, apply for a commutation of and release from the droit de guint, the droit de relief, or other feudal burthens due to His Majesty on such fuf or seigniory, and shall surrender into the hands of His Majesty, His Heirs or Successors, all such parts and parcels of such fief or seigniory as shall remain and be in his possession ungranted, and shall not be held as aforesaid a litre de fief in arriere fief or u litre de cens, it shall and may be lawful for His Majesty, or for such Governor, Lieutenant Governor, or Person administering the Government, as aforesaid, in pursuance of His Majesty's Instructions transmitted through one of His Principal Secretaries of State, by and with the advice of the Executive Council of the said Province to commute the droit de quint the droit de relief and all other feudal rights and burthens due to His Majesty upon or in respect of such fief or seigniory, for such sum of money or consideration, and upon such terms and conditions as to His Majesty, or to such Governor, Lieutenant Governor, or Person administering the Government as aforesaid, in pur- suance of such instructions, and by and with such advice 9 b % as aforesaid, shall appear meet and expedient ; and there- upon to release the person or persons so applying, his. lier and their heirs and assigns, and all and every tlie lands comprised in such /ie/' or seigniory, from the said droit de quint^ droit de reliefs and all other feudal burthens due or to grow due thereujion to His Majesty, His Heirs or Successors, of whatsoever nature or kind, for ever ; and to cause a fresh Grant to be made to the person or persons so applying, of all such parts and parcels of siich/te/' or seigniory as shall as aforesaid remain and be in his, her or their possession ungranted, and which shall not be held a litre de fiej\ in arriere fief^ as aforesaid, or a titre de cens, to be thencefor- ward holden in free and common soccage, in like manner as lands are now holden in free and common soccage in that part of Great Britain called England, without its being ne- cessary for the validity of sncli Grant that any allotment or appropriation of Lands for the support and maintenance of a Protestant Clergy should be therein made ; any Law or Statute to the contrary thereof notwithstanding. in. " And be it furtiier enacted. That in all eases where any seignior or seigniors, or person or persons holding land, a litre de fief in the said Province of Lower Canada, shall by reason or means of a commutation with His Ma- jesty, or of a surrender of his, her, or their//?/" or seigniory, or any part thereof, to His Majesty, or by reason or means of a commutation with his or their inmiediate suj)erior lord or seignior, or otherwise howsoever, have obtained or shall or may hereafter obtain for himself, heiself, or themselves, his, her or their heirs or assigns, from His Majesty or from the Governor, Lieutenant Governor, or person administering the (iovernment of the said Province of Lower Canada, or from his, lujr, or their immediate superior lord or seignior, a release from and extinguishment of the droit de quint, or droit de relief due and payable by him, her or them, his, her or their heirs and assigns, for, or in respect of lands so I'i ■;# 10 h licid a litre de/iej\ such seignior or .seigniors, person ('n' persons aforesaid, his, her, andlheir heirs and assigns, shall be held and bound, when thereunto required by any of his, her, or their ccnsitaires, or the persons who now hold or hereafter may hold the said lands, or any of them, or any part thereof, d litre defief, in arriere fief as aforesaid, or a litre de cens^ to consent to grants and allow to and in favor of such ccnsitaires, or other person or persons as aforesaid requiring the same, a commutation, release, and extinguish- ment, of and from the droit de quint and droit de relh i., or droit de lods et ventes, as the case may be, and all other feu- dal and seigniorial lights and burthens to ivhich such censl- taire or other person or persons, his or their heirs and assigns, and his and their lands so held by him or them, may he sub- ject or liable, to such seignior or seigniors, person or persons aforesaid, his, her, or their heirs and assigns, far a just and reasonable price, indemnity, or consideration, to be ^mid for the same same, which price, indemnity, or consideration, in ease the parties concerned therein shall differ respecting the same, shall be ascertained and fixed by experts, to be in that behalf nominated and appointed, according to the due course of law in the said Province of Loivcr Canada, regard being had to the value of the said lands so held a litre de ccns or a litre deficf, inarrierefief as aforesaid. Under these provisions, an application by petition to I he King, whenever made, that is to say, in all time to come, while the Act shall be in force, by the proprietor of awy fief or seigniory in which lands have been granted, for the com- mutation of and release from the feudal rights and burdens due to the Crown, and a surrender into the Royal hands, of tiie ungranted parts and parcels of such fief are sufficient to enable the ajiplicant to commute, for such consideration and upon such terms and condiiions as shall appear most r-xpcdienf, and to entitle him thereupon to be released from the '•aid rights and burdens, present and future, to Hi's 11 h Maiesty, iii* fit-Ji'^ tinJ su€C(^ssors, ol' \sluitt'vei' nature uiuJ kind for ever, and to obtain a I'rosli grant (»f all uugrantud and uneoncodcd lands, thence f or wardlo he hulden in free and common soccoge, in like manner as such lands are held in England. As to the lands conceded or granted by sncli applicant, his rights as the seignior continue unimpaired until a commutation shall have been obtained by the cen- sitaire or vassal, and this right of commutation may by hinj, at any time, be claimed at the hands of the seignior, who, Avhen thereunto required, is obliged to grant the same, for a just and reasonable indemnity, which, in case of disagree- ment, is to be ascertained by experts to be nominated ac- cording to the due course of law in Lower Canada, regard licing had to the value of the said lands so held a litre de cens, &c. These two Imperial Statutes are not temporary hut j)erpetual, and have never been repealed by the Parlia- ment of Great Britain. It will not be pretended that the Parliament of Canada has the power expressly to re{)eal them, and any Act which would profess to do so in direct terms would be a nullity upon its very front. The power of legislation exercised by the Parliament of Canada is deri- ved from the Imperial Act of Union, the 3rd and 4lh Vic. c. 25, the third section of which enacts : " III. That from and after the reunion of the said Iwo Provinces, there shall be within the Province of Canada one Legislative Council and one Assembly, to be severally constituted and composed in the manner hereinafter pres- cribed, which shall be called. " The Legislative Council and Assembly of Canada " ; and that, within the Province of Canada, Her Majesty shall have power, by and with the advice and consent of the said Legislative Council and As- sembly, to make laws for the peace, welfare, and good go- vernment of the Province of Canada, such lawi not being repugnant to this Act, or to such parts of the said Act passed in the thirty-first year of the reign of his said late Majesty 12 b as are not hereby repealed, or to any Act of Parliament made or to be made, and not hereby repealed, which does or shall, by express enactment, or by necessary intendment, extend to the Provinces of Upper and Lower Canada, or to either of them, or to the Province of Canada and tlial all such laws being passed by the said Legislative Council and Assem- bly, and assented to by Her Majesty, or assented to in her Majesty's name by the Governor of the Province of Canada, shall be valid and binding to all intents and purposes within the Province of Canada." " And the 49tii Section, at the same time that it re- pea) s so mucii of the Canada Trade Act as relates to the appointment of arbitrators between Lower and Upper Ca- nada, in relation to the apportionment of the revenue deriv- ed from the customs, expressly recognises the other parts of that Act, and among others the 31st and 32nd sections just read. The important (piestion now arises whetiier the " Act for the abolition of feudal rights and duties in Lower Canada" be repugnant to the two Imperial Statutes in ques- tion, for, if sucii be the case, thougii it appears on the Statute book, and has been acted upon as law, thougli we are here assembled in obedience to it, it is no law having binding eificacy even in Canada, as the authority which passed it, great as it is, will in this case have transcended the power of legislation delegated to it, and having exceeded the li- mits prescribed to it, will have become shorn and divested of its legislative character and functions. Excess of authority, if any there be, like every other excess of jurisdiction viti- ates and annuls the Act ab initio. In tiie c;onHict of two laws, one Imperial and the other Provincial, the latter must give way, for without this all order and due subordination would cease. Happily, in the present instance, it is not ne- cessary to enter at any length ujjon the vast fi(dd of encptiry into the power of the judiciary of a country governed by a charter granted by supreme authority, or having a fixed con- "i3 f '.■s 13 b stitution reduced to writing as the fundamental law of its organization, to pronounce upon legislative Acts conflicting with such organic law or constitution. I have little doubt that such a power is, in such cases, inherent in the judicia- ry, and that it arises ex necessitate rei. " In No. 78 of the Federalist, which comprises a view of the constitution of the judicial department, in relation to tlie tenure of good behaviour, we read — " The complete in- dependence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution, I under- stand one which contains certain specified exceptions to the legislative authority ; such, for instance, as that it shall pass no bills ol attainder, no ex post facto laws, and the like. Limitations of tiiis kind can be preserved in practice no other way than through the medium of the courts of justice, wliose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. " Some perplexity respecting the right of the courts to pronounce legislative Acts void, because contrary to the constitution, has arisen from an imagination that the doc- Iriiie would imply a superiority of the judiciary to the legis- lative power. It is urged that the authority which can de- clare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doc- trine is of great importance in all the American constitutions, a brief discussion of the grounds on which it rests cannot, be unacceptable. " There is no position which depends on clearer prin- ciples, than that every act of a delegated autliority, contra- ry to the tenor of the commission under which it is exerci- sed, is void. No legislative Act, therefore, contrary to the constitution, can be valid. To deny this, would be to affirm n. %\ a l.ll ; ? 14 h that the deputy is greater than tliu principal ; liiat the ser- vant is above his master; that the representatives of the peo- ple themselves, that men, acting by virtue of powers, may do, not only what \\w\x powers do not aulhorixe, but wliut they forbid. " If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction tliey put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be recollected from any particular provisions in the constitution. It is not otherwise to be su})posed, that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an interme- diate body between the people and the legislature, in order among other things, to keep the latter within the limits as- signed to their authority. Tiie interpretation of the laws is the proper and peculiar province of the courts. \ constitu- tion is, in fact, and must be regarded by the judges as a fundamental law, it must therefore belong to them to ascer- tain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconeileable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred: in other words, the constitution ought to be preferred to the statute ; the intention of the people to the intention of their agents. " Nor does the conclusion by any means suppose a sn- periority of the judicial to the legislative power. It only supposes that the power of the people is superior to both ; and that where the will of the legislature declared in its Statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the 15 b the ser- the peo- 3rs, may Jill, what ;m solves llmt th(.' ijxm tlio annot l)e :;ollecU'(l It is not id inlend tute their itional to interme- in order imits as- hiws is constitu- ires as a o ascer- arlioular should le two, ought, i tut ion of tlic sc a sn- It only o both ; d in its pclared bv the laiter, rather than the I'onuer. They ought to regulate theii' decisions by the fundamental laws, rather than by those which are not fundamental. " This exercise of judicial discretion, in determining between two contradictory laws, U exernj)lified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation ; so far as they can, l)y any fair construction, be reconciled io each other, reason and law consj)ire to dictate that this should be done ; when this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for deter- mining tiieir relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the di- vcMlion of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an equal authority, that which was the last indication of its will, should have the preference. " But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They leach us, that the prior act of a superior ouglit to be preferred to the subse- quent act of an inferior and subordinate authority : and that, accordingly, whenever a particular statute contravenes the constitution, it will be the duty of the judicial tribunals to adhere to the latter, and disregard the former. m 16 h " It can be of no weight to say, tliat the courts, on the pretence of a repugnancy, may substitute their own plea- sure to the constitutional intentions of the Legishilure, this might as well liappen in the case of two (;ontra-lhu two Acts in ([ues- lion, was to ellbct the gradual conversion of lands in I.owcr Canada Jield a litre ilc fief and a litre de cms inlolliu lonure of free and common socca;^je, as lands are holden in Eng- land. So far from containing any compulsory provisions for extinguishing the {"eiidal system within a limited period, these statutes lefr it 1o be die work of time. Tlie initiative was given to the seigniors ; if they adoptcul it, the ccnsitaires in their turn t lien, and then only could, on their side, claim the right to commute. Every seignior in Lower Canada under th(; terms of these Acts has the right to claim from the Crown, and to obtain the benefit of a commutation of his tenure, into free and common soccage, upon compliance with tiie conditions prescribed by Parliament. The Crown cannot refuse to recognize tliis right, and to allow its free exercise, without violating the Acts and improperly pr(!venting them from taking effect. The Legislature has declared that " it may materially tend to the improvement of such lands, and to the general advantage of the said Provinces that such Itaiures may luMicefortli be c'langed in manner hereinafter mentioned," and, by the Statute of the 3 Geo. 4, it is made imperative upon the Governor, by and \vi\\\ the advice and consent of the Executive C'ouncil, to cause a fresh grant to be made, Sec. The terms of the Statute G Geo, 4. c. 59, " it shall and may be lawful for His Majesty, &c.," though more respectful than the imperative form of words in the previous Act, as applied to the Government, import the same duty to carry out the law when its benefits are claimed by the seignior. No time is prescribed for making this claim, in the words of the 3 Geo. 4, " if any ])erson holding any lands, &c. in./i(/and Seigniory, &,c., shall at any time from and after the commencement of this Act, surrender the same &,c., the Governor shall cause a fresh grant, &c. In the words of the Statute G Geo. 4, " whenever any person hold- ing of his Majesty, as proprietor, any fuf or Seigniory, &c. ■ ^ « 23 h ^■^i (.1' 111*' 11 ([Lies- Lowei' tenure n Eni^- visiDiis period, iliativi; Hilaires aim the I under Crown, tenure, villi llie cannot xereise, g tluuu hat " il ,ds, and it such •einafler s made ice and |h grant [l. c. 51), 1 thoui'ii Is in ihe je same |nicd by claim, Ing any le, from lie same In the In hold- jry, &c. shall, by Petition to the King, &c,, apply for a commutation &c , it shall and may be lawful for His Majesty, or for such Governor, ice, by and with the advice, (but not consent) of the Executive Council to commute," &c. The Seignior then is left to lake his own time, and to suit his own con- venience. Can it be in the power of the Canadian Legisla- lure to deprive him of this right, or in any way to abridge its exercise ? Surely not, unless it can take away that which a superior authority has given, but which it never gave it- self. The Parliament of Great Britain provides for the gra- dual conversion of tenure in manner and form which it pre- scribes. Can the local Legislature, by passing an Act for the immediate " abolition of feudal rights and duties in ijower Canada," substilule another manner and form totally at variance with the Imperial Acls, and annihilate their oi)eration? Can the will of ihc Imperial Legislature, that the conversion of tenure shall bo into free and common soe- eage, according to the law of England, be controlled by ihe contrary will of the Parliament of Canada, that it shall be in\o franc alcu roturicr according to llie law of France ? If the Seignior who has made an a])])lication which has been interce))ted by the Seigniorial Actof 1854, is mmord, is there ladies on his part ? IVo, whiuiever he claims his right he is (Mititled to it, and must so continue to be entitled until the iwo acts of Parliament, shall be repealed by competent au- thority. If the incidents of the two tenures were the same, the change would be only nominal, but they are totally dif- ferent, and carry with them entirely difterent rules of descent, alienation, testamentary disj)osition, and dower. Is it noi virtually to repeal the two Acts of Parliament in question, if, from and after the date of the publication in the Canada Gazette^ or other Ollicial Gazette, of a notice of the de|)osit t)f the Schedule of any Seigniory as aforesaid, all lands there- in are to be held in franc-alcu, and if pro\ision be made to bring every Seigniory in L(nv(}r Canada sul)i''('t to the \*,\]- lish Acts, under tin; immediatr t'))eration of tlu; conllicting w I;? ■'ii HI 24 h Canadian law, at utter variance with them. To abolish alf feudal rights and duties in Lower Canada is to withdraw efleotually all the Seigniories and all Seigniors and Censi- taires out of the purview of the British Acts. If the Seig- niorial Act of 1854 be carried into eliect, will any thing re- main to which the Imperial Statutes can apply ? Will not those Statutes become a dead letter as effectually as if re- pealed in express terms? Wiienever commutation under these Statutes shall have been effected in all the Seigniories of Canada, they will become effete, but can this be acce- lerated by conllicting legislation ? Certainly not ; for there is no surer mode of repealing a law than by absorbing its subject matter and the rights which it governs. The Seig- niorial Act of 1854 attempts to do indirectly what it cannot do in direct terms, and must therefore fail of success. And hence, it is to be observed, that if the Statute of the 10 and 11 Victoria, already mentioned, the tendency of ^^'hich was only to facilitate the commutation, and not to abolish the tenure, and which was limited to the Queen's Domain, and did not, like this, extend to all the seigniories in the Pro- vince, was yet reserved for the signification of Her Majesty's pleasure, a fortiori the Act of 1854 should also have been reserved. As to the consequence even then, I express no opinion ; but I am firmly convinced that rK)t only the seig- niors who had applied for commutation under the Imperial Acts, as enquired of by Mrs. Ilarwood, but that all the seig- niors who have made no application and have remained silent are as fully entitled to the benefit of those Acts now as they ever were ; anything in the Seigniorial Act of 1854 to the contrary notwithstanding. I hold it to be equally out of the power of the Imperial Government as of the Provin- cial, by refusing commutations, to thwart the execution and carrying into elFect of the two Acts of Parliament. Duty re- quires that they be enforced until repealed by competent authority, for the Legislature and not the Executive is the k 1 25 h jolisli alf withdraw id Censi- llic Seig- thing re- Will not as if re- on under igniories be ucce- for there rbing its 'he Seig- it cannot ss. And e 10 and hich Avas jolish the lain, and the Pro- Majesty's \\c been -)Ycss no the seig- Imperial the seig- remained Vets now of lS5-i ually out e Provin- Ation and Duty re- ompetent vc is the snpnior power. BL-furc dismissing this subjcet, I think it rii^^ht to add that the appropriation of ninnies made by the SlJitute of the 3 Goo. 4, is at varianee wiiii that of oar Co- lonial Act, and that these nionif's are not comprehended " la tli(; territorial and other n ennes now at the disposal o| the Crown, arising in this Province," mentit)ned in the Act of tlie i) Victoria, for granting a Civil List to llvv Ma- jesty, 'i'he Imperial Statutes, in securing to the seig'-iior a i^rant in Uto. and common soccage of the unconccdi'd lands in his seigniory, whenever he shall be plens(^d to demand it, and which aiitliorist.-s him at any time to surn.'ndertlie sa! le to the (h'own for the purpose of such grant, impliedly repeal- ed the Arrets and Declaration of tlie King of France mcniion- f^l in tl;(^ Counter-questions of I\rrs. ITarvrood, and I liav,', ilierefore, to give ii;y entire assent to the proposition submit- ted to the Court on h(>r behalf. I'o pass now to the questions proposed by Mr. Attor- ney Cencra.l, tht^ Seigniorial Act has directed that oliicer to " frame such cpiestions to be sui)mitted for the decision of the .Iud, and its enrorceiiieiit v, ,!s ji(»t. !>> be met l.y com.ni^c^ saiC'ie Jcoilalc, the ])ain,-! and penalties di' older sotii-Mies. Airain, liie litre ViUohlc vA>\\\i.\ ]ic\ he siibjeeled in th(! new eountry 1o the twen'y live years enjoyment re(|; sired in the old, l>y the article 71 of the Contume de Paris (I) and the Jna- tlce, so prolitabhj and imoortrint in (''ranee, was of smr^U value in Canada, and dillieul!; to be exenM-^ed ; die baiwUlc also was dillerejit. In eontrollinLi^ and earryini^out tiie seii,'- niorial system, an imporlaut funetionary \\'as the Liloidaat de la justice, police d finances, lie we.s poss(!ssed of lei^is- lalive, administrative antl judieiid powers, all at once, and had in his hands the managmnenl of the coloniid treasury. In his judicial (capacity he \v is President of the Conseil Superieur composed of twelve ( (amciliiirs, eleven beiui^ laymen and one spiritual, in wiiieli also, the Governor General and the Bishop had seai>. " il n"y etait reru, " (says Cugnet, p. 70,) (|ue des aifaircis en appel des y seii,'- U2;er sci- \v. sa " !•; li- C"innnii-s:i;i'('-0;\l()iiii;itt'ur ii Moiilrt'-al clail son .nuli- '■ (!ri. iT'-i' I);'; n (Icciroii ,|n;iii(| ii'iKdinrronilsdcsscif^ncuries ; '•'• cl. ii (!;iir loisihh; ;ni.\ piirlics (|ui sc IronvaiL'nt Icsees dc '' *,'s |ii'/(Mir!):s (Pep. ;i[)j)r'l::-;\ Philcndaiit qui les confirmait '■'• Oil i'-s iiiliriii;!!!. ;>!;:si (j;r:! li' Ird'.ivait jiisto. Los parlios '• !,:)'iv;;ii'i)t aopclcr (I(--. anvis dii (.'onst'il Siipi'rieur et des " jii':v-:,;(Mi!s (i'lnt'T.diint iiu C(,n:>i(.'il d'I']t;i) du Roi. II n'y " i cii, (;id(ls C'ni'ncl) dcpiilf^ Ic pi'cmier ctal)ii(!;i!'ineni, v.iiieli oc;casionna!!y \v."it! enforced hy lies- criplfi.; <;;• -Ir.v/..' and Ordonnanccs froiu tiie ILing of Franco, as liie SnprenK? Le;^i5-!aior. in tlie excreise of tlieir high powers, the Inlendants wvxa exomot i'rom tlie wlioh'soine control of an enlightened bar, or th(! ])ublieily or lalilude of diseus- .siun of the proceedings ofniotlern (.'oarts of Justice, even as now aWowed in i'''ranc(\ (n directing the registration of Ids ordinance of iGuV, j^ouis X.'V says of Canada : " ayaiit *'" egiivd a la pauvrete des habitants de ee pays, a I'elat d'iee- " lui, a la diriiculle qn'il y a di' faire de.s voyages dan.s " lout(>s les saisons, an pen d'experienee de la plupart d(!S " jugcs, au pen de capacitedes huissiers,ct pour eviter aux ''' frais qui arriveroient en beauconp de reneo'itrc'^ par i"i- \ I f 1; i 13 :30 l> " gnorance dcs nubitanls cpii onfroprcnneiit des proc6s " quclquelbis sarif y poiivoir n'Mccliir, et sans ponvoir *• prendre conseil, ne se trouvant en ce pays avocats, procu- " reurs, ni praticiens, etant m(^me de I'avanlage de la co- *' Ionic de n'en pas recevoir," and directs that provisional regulations be made by the Conseil Supcrieur to meet tjie emergency. In 1G78, the Conseil Superieiu\ while enregis- tering the ordinance, places in the margin of article 16 of title 2, the following observation : " Parce qu'il n'y a point " d'avocats etde prooureurs en ce pays, et (ju'il n'est pas li " propos d'y en elablir. pour Ics raisons rapporlees dans le " proces-verbal, le dit article sera execute en cas que I'ab- " sent ait laisse une procuration aun de ses amis." In the land-granting department under the French regime^ the Intendant was associated with the Governor, the patents issumg in their joint names. In the exercise of their more than pretorian power, judicially, we have the testimony of one of them, M. Raudot, pere^ that they could not, under the circumstances of the colony, follow the rules of law, however much disposed so to do, without running the hazard of committing injustice. He writes, on the 10th November 1707, to his government : " Ce n'est pas que tout ne se soit " pas fait souvcnt dans la bonne foi, mais I'ignorance et le " peu de regies qu'on a observecs dans toutes ces aflaires *' a produit tous ces desordrcs, lesquels en causeraient de " plus grands, si I'on soufTrait que ccux qui pourraient se " prevaloir de cet esprit, ou de leur chef, ou par le conseil " des autres, intentassent des proees sur ce sujet. II y " auraH plus de proces dans ce pays qu'il n'y a de person- " nes. Et comme let, juges sout obliges de jugcr suivant " les regies dont ils commencent a avoir quelque teinture, en les appliquant a des ail'aires oij I'ignorance a fait qu'on n'en a point observe, ils seraient obliges de faire mille in- justices, ce que j'auraiscru faire moi-meme, Monseigneur, si je m'y etais cntieremcnt assnjeti dans plusieura :U h " proc6s qui sont vcnus par dcvant moi." (Correspon- dance cntre le Gouvcmemcnt Fran^ais et Ics Gouvcr- neurs et Intendanis tlu Canada; published pursuant to an address of the Legislative Assembly, page G.) To tliP representations of the Intendant, no doubt well intended and made with a sincere desire to bring about useful reform the Arr^t dc Marly, 1711, in respect of which so much has been said, is fairly attributable. iber ■^- Ic V I X I \ Of Tilts HONORABLE JIJIMIE DUVAL. I. Of llii' liii|M'iiiil Arts, 3. ('no. IV, ci]). 11'.), a:iil (>. llco. IV, raji. IJ. I li;iv<' 'j^'wrn to tin; scvcriil (^iicsliuns suhiiiiltcd to us :iil tlif attention wliicli tlioir iniportarutc calls lor, iind I liavt; nol lorincd my opinion on any one ol' tlicni without wci^fliinir (Iclilicratciy all that has been uri^cd at lln^ Mar and dnrinii; tJK' many confcrcnri's wliicli have taken |)lacf' amoni^ iLc Jiuli(»'s. I have no intention of i must depend on the exercise of his free will. He must be allowed to be the only .ludifc of his own interests. W'e, therefore, do not cammand, wt; merely permit such conmmtation. lieyond this, the Imperial Par- liament n(!ver intended to i^'o. It inter|)osed it's authority solely to enable the proprietor of a Jivf to g(>t rid of tlu; l)ur- tlwMis of the old tenure cu Jicf tt s(i'j;riviiric. But surely until die connuutation had taken |)laee, the land remained sul)j(>('1 to the power and control ol'th(> Colonial I/'^'islutun^ A con- trary interjin^lation would establisli lh'' monstrous doctrine, that the impcM'ial Parliament intencU'd to |)lace all the huids of the Country ludd en ficf el sci'j^nrKriv beyond the action oi' its lei,dslative authority, at the same time that the Colonial Leifislature exercised lull powers as to lands held in lV('e and connuon soceau^e, and to place such a ])ower of le.'.^isla- tion in whose hands? Not certaiidy in those of thi^ lm])e)iai Parliament, which has not put forth the e.;trava<2^ant and absurd desi<(n of doini^ away with a vital pai< of the cons- titution of Canada. Far from it, the authority o*" the Colo- nial Lei,fislature for all purposes of domestic and internal reii^ulations has always Peon recoi;nised by Parliame;it. Ih's not tlie Imperial Parliainent, Ity i^rantini,'' to the L(\<,'-isl.ilurc of Canada (see Imjierial Acts, G Ceo. 4, c. 59, § 8 &. I. Wm. 4, c. 20), the rii^ht of reijfulatini( the (lesc(!nt, i^nant, bargain, sah^ and alienation of lands then or afterwards to be held in free and common soccap^e only, put its own in- terpretation on its Acts, ])y including in such legisluticii!, such lands only as were held under a tenure sul)ject to the laws of England ? Surely no language couhl be stronger in iS -J nions. Lower ( in free will ? lands li rS 3c is. It iiiial- ion of 'Olds, posed lulion liniui; s Tree s own iHTfly >1 Par- thority k; bur- ly until sul)j<'<'1 A con- oclrinc, ic lands ction ot 'olonial in tVcf (><;isIm- hnu'Miai jjlaincr than tliis — it is beyond all cavil. And remark that the Hill clause of tlio G Geo- 4, eh. 59, was introiluccd for the express purpose; of removing the doubts entertained by some as to tlw^ laws by which the descent, &c., of such lands wen; to be j^overned — and it was on nosliiflit gr>)iuids thai the Canadian jurists not merely ipiestioned, Ijut jx.sitively deni«'d that lands held in free and common soecage were to be governed by the laws of Enghmd. Thi' Courts ol' .Jus- lice in LoW(!r Canada had invariably applied to them llu; old laws of th(! Country to tlu; exclusion of tin; laws of England. The; distribution of all monies arising from the sale of such lands [)y denrl force was governed by this old law : these lands passed by descent aec()rding tollie same rule. The Court of King^-; Heiieh at (Quebec, so <>\|;r 'ssely deeidi.'d in an action brought for \\ui very [)urpos!; of having this qneslion decided, as to the dcs^-ent of lands held in free and common soccage, and belonging to tlid estate of jIk; late Ilonorabh; Francois iiabv. This d(!cision was not then (juestiolied. And so with respe<'t to Iiijp(i//in]//is\ unknown to the law.* of England, but cNlstiiig in Canada., either by men; opera- tion ol' law, or resulting IVom agr"emenls execiU(;d l)ei()!c a notary, a public oliicer invest''d by French law \\ itii powers not vecoirnised by I'^nglish lnw. As to the correctness (;f these decision I entertain no doubt \\ hatever on this subject. I shall refer to the opinioii giv(Mi by Mr. Stephens, an en- glish lawyer, befon; a (tommittee of the House of Com- mons. Being asked what would be the law which in Lower Canada woidd regulate the inheritance of land held in free anil common soecage if the owner died A\-it!iout a will? He answered that, before the Canada Tenures Acl, lands held in free and common soccage in Lower Canada, would have de^:eended in the same manner and according to the same rules as seiiniiories holden of the Crown. m n \n This is sound doctrine, in accordance with those prin- *.iples of ])ublic law which, Merlin says, are acknowledged 1^ 4c by all llio Stales of Enrojic, and \\'!iicli tiie onglisii Jiulgr.a liavc rcj)i'at'Hl]y l;iid down as I'^iiglish law. (Sco lord Man- sCiclds' Jmlgcincnt in the case of Campbell and Hall, 20 vol. Slalc 'I'lials ; also i1h> argamenl in Sir Thonaas PictonV ease, 30 V(>1. Slale Trials ; and lord Tlmrlow's opinion in CiivendislTs Del^ates on the Canada Bill, j). .'37 ; Baron IMazeres argument in the Canadian Freeholder; Chitty on Prerogative, [). 30 ; Story, in his Commentaries on iIk; eon- stilution of the United Stales, says : " Until such new law?* are promulgated, the old laws and customs of the Country remain in full foree, unless so far as they are contrary to oi;r religion, or enact any tiling that is malum in sr. It is not necessary here to do more than mention the Or- dinance of 17G3, l)y which it is ])retended the laws of Eng- land were introduced into Canada, as by the Act of the Iini)erial Parliament, II Geo. Ill, ch. 83, § 8, the old laws and customs of Canada wi've made tlie rule of decision in all cases of controversy ndative to pro])erty and civil rights. I may, on some future occasion, be called upon to exi)rcss my opinion on this Ordinance. The rules of hiw thus laid dowr; by the Coi rts of Justice, ft)r their guidance were those wliich the Legislative Assem- bly of Lower Canada, acted Uj)on in the cxen^ise of its le- gislative authority, previous to tiiis Imperial Act above re- ferred to, and this exercise of authority was never (question- ed by the IIouk^ Government. This could not have occurcd if the Canadian Assembly had usurjjed the power it exer- cised ; for, on referring to 2 vol. of Dwarris on Statutes, j). 999, wo find what ])rccautions are taken too])tain all the required information on tlic; Acts of a Colonial Legislature. The Acts of the Session are referrc^d by the Secretary of State U> the Counsel for the Colonial Department, who is re([uired to report his opinion u[)()n them in point of law. By this old and established form of expression is understood to be meant that, the Counsel is to re[)ort, whether the Acts are Huch as consistently with his commission and instructions, Th.> Btato to Lciuiretl by \hy Id to be ^s are iclions, I * 5c .'he Governor is authorized to pass ; whellirr in the languni,^e of tlie Statute of 7 & 8 Win. 3, e.22 § 9, tlu; act i? re,)ngnant lo any law made in the United Kingdom having reference to the Coh)ny. I v>'il] now advert lo the Ordinance incorporating the ]\Ion- (real Seminnry, and providing fortlie commutation of the to nnre witliin the seigniory. It cannot be said tliis Ordinance passed williont its ))rovisions having been severely sern- linizcd by all the parties having adverse interests. The genth-- uien of the Seminary were themselves dec^jily interested in not talking a title from a body not liaving llie pov.er to ce.nfer it. There were also p •oj)lo in England who did not viev/ with indifl(>rence the j);issing of this Ordinance ; and yel iJs legality has not been questioned, it has remained up to this day the acknowledged law of the land, regulating infi-rests of paramount importance. Surely the; Home autliorilies v."ould never have connived at the exercise of such powers if they had viewed such exercise a mere usurpation. I will next ci!'. >rnte several Canadian Legislative Acts, whose legality l.ii . i- been (piestioned. 1813, ch. 11. Act vesting in II. M. Ordinanc(' the estates and property therein described, 18-13, ch. 27. Act to commute the tenure of lands in tlie firfi Nazareth, St. August in and St. Jose])h. 1845, ch. 42. Act to facilitate optional commutation of tenure of lands. 1S47, ch. 111. Act to facilitate the commutation of tenure !n the Queen's Domain. 1849, ch. 49. Act to facilitate o})tional commutation of tlie tenure of land. 1853, ch. 207. Also respecting the optional commutation of the tenure of lands. 6c I have been tlms minute in showing thai hinds IielJ in free and common soeoage \V(.'ro always subject to the old laws and custtuns of Lower Canada, down to the passing of the Imperial wStatute G Geo. 1, e. 59, becaus(' Parliam(>nl having then interposed its authority, ostensil)iy to remove doubts, but in reality to introduce new laws into the Colony of Lower Canada, it at the same time gave to the Canadian Legislature the right of enacting such laws as might be ne- cessary for the better adapting the rules of the laws of I'nijland to the local circumstances and conditions of the inhabitants of Lower Canada. Thus is made clear and beyond doubt the right of the Canadian Assembly to l(>gis- 1 ite for lands IieUl in free and coumion soecage, from the time that tenure was introduced into Lower Canada down to the present day. And, here let mc call attention to wiiat J have before stated, that the Imperial Statute G Geo. 4, c. ^)0, speaks only of lands held in free and common soecage. In giving the Canadian Legislature the right to legislate for these? in the manner it may deem advantageous to the inha- l)itants of Lower Canada, it does not give similar powers as to lands enjiefetsfi'^nviirie. And why? Clearly because such lands were never subject to the laws of England, but were always subject to the old laws and customs of Low^er Canada, and these old laws and customs the Canadian Legis- lature could at all times change. Had a different opinion been entertained, would not the same j)owers of legislation, and to a like extent, have been conferred on the Canadian Legislature respecting lands h dd en fief el sei^neuri'e '? What reason could be assigned to induce the Imperial Parliament to say to Lower Canada : You may change or modify the laws of England now in force in your Country, but we cannot allow you to touch the laws of old France. In thui* abstaining from confering power, when power was not re- (juired, the Imperial Parliament has decided the question we arc now discussing, and in my opinion it was right in not including in its legislation, (G Geo. 4, c. 59,) lands held m fief ct scigneuric. 7c I am i^liul to have it not to say that, in its lt'xerct', "• et ({ue, par I'exercice qui en a etc fait, la chose qui en est " r<)bjet, ne soit devenue notre prn])riete. En elfet, il eu est '•' des facultcs accortlees par la loi, comme des facultes ac- " conlecs par des individus. Tant que celles-ci nc; prennent " point le caractere de droits contraetuels, elles sont toujours " essentiellement rcvocables. Or, le legislateur ne con- '• Iracte jamais, lorsqu'il acc(M-de vuie faculte ; il j)ermet, '^ mais il ne s'oblige pas ; il conserve done toujours le pou- *•• voir de retirer sa permission ; et ccux a cpii il la retire, " avant ([u'ils en aient fait usage, n'ont aueun prclexte pour '^ s\'n plaindre." Sc The opinion thus oxj)rosso(l l)y INfovlin is so oonsonnnt 1o ivastin, and, when applied lo conlracls, so condncivo to ilic maintenance of that i^ood faith, the ohsevvanet! of which every Icii^ishitor juust enforce, that it requires no elaborate argument in its support. A])ply it to the (piestion now under consideration. On the ,5th August, 1H22, the Seigniors were told they might, if they thought it advantageous to them- selves, commute the tenure under which they held their lands. On the 22nd Jime, 1825, tlu; same right was again given to them iuid (>x1(Mided to their Cinsilaircs, and yet, in 1854, that is G2 years after the right has been given lo the Seigniors, and 29 years after it has bei-n given to tlui Crn- xi/iiirrs^ these pcrst)ns who Iiave not exercised their right of option, l)Ut M'ho, l)y not exe;cising their right, have clearly >;hewn their ,i)refer(>nce for the old teniu'e cf/, fiff c( sci<^-iiciiru\ set up a cry of injustice and deny the right of the Legisla- ture to deprive them of their option. Their argument \* this : the law is still in force, and as we have not been limited as to time, we have a right this day to mala; our oj)tion. iMy answer to them is : so long as you have not exercised the right of option granted to you, yoti have no vested right, and consecpiently, so long has the Legislature the pow(>r of withdrawing the right of o])tion granted you. As to the reference made to an alleged Address of tlie Legislative Council and of th.e Legislative Asseml)ly, ais also to the opinions of the Attorney General for Lower Ca- nada, there is an error of fact. The Attorney General clear- ly states, that tlie object was not to deprive Seigniors of tlu; ri^-hts accpiired in virtue of conuuutations already made, but to take i'rom Seigniors, who had not counnuted, the right of availinr' themsclvci? of the enactments of the Im])erial Sta- tliis subject. Prudential considerations dictated tutes on :!uch a step ; but it can be of little weight with the Judi2;e called upon to declare what the law is. The Judges in Endand have refused to enforci; the execution of a law, though its existence was admitted by an Act of Parliament, the Judges being of opinion that the law was not in force. 9c I will now coiiir 1() the ohjcclion iirirod thai llm PrDviii- cial Slalutc inlni(liic(>s one Iciiiirc, frdnr-dlhn^ and tlic Im- perial Acts amilliiT and a diUcrcnt tenure, IVec and cdiu- (non soccagc. The answer is plain and ohvions. 'J'he te- nure, so to he introdiu'ed in virtue ol'llie Iiu])C'rial Acts, was considered a ])enelU to the CcHsilaircs \v!io claimed — A Sei- gnior, who has himself commuted, and who is called u|)()n lo commute with his (Unsf/airr, has certainly an interest in ^■ettini,' a lair value put on his C('//si'/a/'rf\'! land ; hut onc(^ this value ascertained an prescribed 1)V the Imperial Act, then^ are two answers. )f the First, the mode pirescribed by the Imperial Statut(>, ap- })lies only to the CciisiUtirc who is desirous of commutinj^ the old teniwe into that of free and conmion soccage. As this is entirely opiioiial with the ('citsit(iin\\\\v Seignior who has himself comnuited, can aK'e no action in the matter so his d CM re to long as tlu^ Cnisitctirc doi-s not mahe known ol:)lain such tenure. The Imperial Statute clearly does not a])ply to the case of a Cctfsi/afrc di-manding a tenure totally (lilli'rent. If, therefore, \\\r (\//s/lair(' will not avail himself ot the right given to him l)y the Impenai Ac 1 Ac as he cannot be comj)elled to do so, it is clear tlie provisions of the Imperial Act cannot be extended to the c;ise (.)f one whose demand is altogether diJi'erent from that contemplated by it. r-«S 10 c II. OF TIIK SKIGNIORIAL GRANTS HY THE KINO OF FRAN(;K. I iun of opinion lluit the f^ranl by the Kin^ of Fiaiicf of 'ijii'j Jirid scii^'niory to be hr\(\ en pft inr pro/iriclv ncooiding lo llic ("iisloin of Paris, had the ed'cct as well l)y tlic Icinis of tlic ifrant as by law, of transferring the entire and ab- solute rii!;ht of property (Jominii(m plenum^ jus it/fr>:^r//m^ in the land so granted, and that tlu^ grant(>e thereby became d of ve sted with the saiiK! ri'dit s, as to the sah an dd JS pos: his property, ns the Seignior in France had. 13y a snbse(pient lawofthe King of France of the Gthof July 171 1, knowrj as the Am/ of Marly, this entire and absolute right was eonsideral)ly modified ; the King having conferred on tiie inhabitants of the Country, the right of demanding from the vSeignior a concession of lands in the seigniory, and on the refusal of tlu; Seignior to make such a grant, having autho- rized the Ciovernor, Lieutenant (iov(>rnor and Intendant of Canada to make such grants on the terms and conditions of the pre-existing grants in the same seigniory. This Arrcl un (juestionably conferred on the inhabitants a right which they j)revi()usly had not, and imposed on the Seigniors an obli- gation not to be foiuid in the Custom of Paris, and unknown to till' law of France, as it existed al the lime the Conseil tS/ij)en'('Nr was established at Quebec. From the time this Arret b(H'aine law in Canada, a Seignior could not ef- fectually withhold a grant from the Iiabitatft who insisted on obtaining the concession of a piece of ground, liut, in my opinion, neither the letter nor the spirit of this A/ret |)rohibite(l a private agriMMuen*^^ based upon the nuilual under- standing between the Sei;rant »)!' land to be hchl vn sriij;n('Krir^ but il never was, it eouhl not bo the ifilciition of the King of France to pnucnl a luihitant luakiiiLf what is calh-'d a <^ood bargain lor himself. If, llierel'ore, an applicant for a grant consideretl the terms and <')ii(lilions on w liieh former grants were made in the sei- gniory contrary to his interest, it would ix; a strange per- version of the meaning of words to call that sound |)oliey wliieli prohibited a man promoting his own interest and that of his family by a (jontract with his Seignior on terms fully understootl by both and by both considered benelicial to llieni. In a letter written by Messrs Beanharnois and Iloctpiart, dated 10 Oct, 1730, and addressed to the Minister of France, it is sta.ed that Mr. IIoc(piart refused to set aside contract^* Iielween Seigniors and Crnsifairvs cntertMl into voluntarily and without fraud ; M. Iloetpiart stating, with great reason, ;!iat as the Ci'iistUiin; hatl not availetl himself of tin; law in his favor, he could not afterwards comi)lain. Volenti not fit injuria are the very words used by Iloecpiart. The di.-cision thus made known to the French Government was not dis- approved of. [t is true the French King, by the Arril of Gth July 1711, has declared that in making grants of land in Canada, he intended to protnotc settlement in the Country, by (dearing, <-ullivaling and improving the land. And, therefore, any contract, entered into since the \rri't became law in Canada, having a t(>nd(!ncy to defeat this intent, might have been set aside as Ijcing prohibited by law. Bnt any covenant, not prohil)ited 1iy law and not of a tendency to defeat the intention of the King of France, is valid. It is for the ("onrts of Justice to make a due application of these gene- ral principles to each contract submitted for their judgment. I will here observe that it is easy to suppose a case in which % 12 c a Toscrv^", sfaiitliiiL^ aiono In a contriot, nii^'lit bo declared Jci^al !ind l)iii(linL( oil llic parlies, and llial tlu? same reserve, when included with several others in oiu^ and the same eon- tract, would ])(• declared illcj^al, and, iherelore, not hiudiui,' on the ^'ronnd that the several reserves, thus included in our contract, would put it out of the power of the Cinsi'/airc to (dear and improv(> the land, and thus imjx de l!ie scttlo lU'jnt of the Country. 'J'he decision in all such cases must re^l on the t^eneral principle that all laws promulfj^atcd, not sohdy (or tin* pro- tection of private rii^hts, hut with the view oC promoting the 1,'eJieral interests ol' tli(! whohj community, are to hr. con- sidered laws of pui)li(! policy, whii-li conlractin:^ pnvties cannot set aside by convtiitional stipulations. 'I'he two Arrets de Marly referred to, must be considered as layini=[ down rules of public \)o\\cy ^ (Pordrc p}/h/i(\ in so far as their enactments tend to promote the settlements jn tlu; Cormtry ; their jirovisi^ns cannot Ik* so construed as to allect the vali- dity of any private covenants not of a tendency to impede >>uch settlement. It is almost unaccessavy to add that, die oi)inion above expressed, of tlu> rii,dit of a Seii^niior to withhold a i^n-ant previous to the Arrrl of Marly, does not npply to the grants, if any exist, made by the King of Frruice, in wliich the obli- gation to grant, conc'uicr^ is expressly imjjoscd on thegrimtee. As lo a fixed ni\c,qi/()t.ifs (Ifs ro/irrssions.^'^ Fiirtli(>r, ihv. corrcspondancc hulwccii I'lH! Iiitciidant ol' Canada and llu" French iMinislcr, in I'aris, prosly ncknowlcdiJfcs th(! rate was not lixcd ; and sueli as llir opinion of tlie tlin-c Frciu-li jurists as il will he ii)iiii(l in the 2d Vohmie of the Seij^aiiorial Doeiitnenls. The Attorney General, in the answer he has ifiven to his own 13th ex w aw rnet (|ueslion, admits the rate was not fixed hy la savs the same lliin'^', and the paper wrilini^ intituled " iA. rf/ni'iif Iroiivc lintis /cs Arr/iircs dc In M(t.n'ni: ( likewise aekn()\vied'''es the riii^nior shall von- fcde at 1, 2, 3 sols p(M' c/r/^r///, or any other j^'iven amount. This he has not said for ihe plain reason that he did not inleiid it. liy this Arrvt the rule of the old feudal law of France is hiid down. So that this very Arret may be referred to as conclusively establishing there w;is no llxcd ra!e. In virtue of this ArrOf., the Governor, Lieutenant Gen(>ral and Intendant called upon to make a irranf, when the Sei- gnior had refused, must on the same day have pronounced several judqment.i fixing one rate; in one seigniory, and another and a dilfereut rate; in each seigniory in ^\■hieh a grant v.'as ordered. Of this it is impossible to doubt. How then can it be said a rate was fixed .' As to \\\v. rclirl\ I am obliged to admit its legal existence. In a report submitti^l to Sir Guy Carleton, the Governor of Lower Canada, it is said the IG and 48 articles of the ("ustom of Paris are not observed ; but of the 18 article I f € I. 14 c which defines the droit dr. reliefs not ono word is siiid ihiil it uJHo had l)epn set aside. Hut in aVe cannot rest an opinion on facts not proved ; if we couhl, we nuist ronie to the conclu- sion that the Arrets had not fallen Cft desuetude. III. OF THE JURISnUTlON OF THE COURTS. The French King, in the two Arrets^ commonly called Arrets dc J[W('rH ronlcrrcd hcitii,' purely and ex- clusively of a jiKlir on the terms of a contract, the powers to he exc'cised were strictly t»f a judicial character. Hut the i,'rantini,' (»!' land' and the makini^ of contracts with persons ilesirciis ol' s-t- iliiiif in Canada and cultivatin;^ the land, is no pari of tlic husiness of a Court of .luslicc V us is a measure c IIISI- vcly of an administrative (diaracttir, and therefore \crv • -o- pcrly eonlided to tlie Kind's Ueprescntalive in Canada, diat is, the Covernor, assisted by the other ollii-ers named. The Arret provides forthe case of a dillerenct? of opinion exislimjf anioiii' thes(! ollicers, a nd d irects that no to retain in liis own liand.s, iincoulrolh'd by lliu Jiulicaary, the power of grantini,' lands to whom !ie jad,:^<;d it cxiXMlicnt, and on the terms lie deemed most advantapjcous to |>rv)mote the si'tdement ol'liie Courtry is conveyed in laii.^riai^e as plain and unaiubiifuous as it is po^'- sible lo maive use ol, ll'lh;' l;m^ma:(e ot" the /bvt'/.v achnitt- I'd of'a dou!)l, l)el'ore I aeknowh'dL^ed these powers lo be vested in a Court orjnslic", I would put this (pieslion. How are such |)owers to be exercised l)y a Court olMustic^e ? on what f///fa? If called uj)on as a Judi^e to decide on the conlliclini^ claims of any two individuals, I have the sc^verc, unbentlinif rule of law to look to as my i^nide, but when called upon to m;ike a i;ran1 of tlu; unconceded lands of the Crown (hroui^liout J^wcr Canada, by what ruh; am 1 to be guided? Can I fuid that ruh' laid down in any leii^islalive enactment, or explained by aiiv jurist who has written on the lav^s of Canada. I may bi^ lold that lliis vulv is to be l'o(uid in the Arret of .Marly, i)ut this I deny. Tl.is ArrLE JIDCE CAUON. The!. l'tlir Sciiiniorial ri^dits in that part of Lower Can;ida liicli \\;is still suhjcct to that system, enacted, dnrini,' the Sc -lo n(»f liS.")|, a law which will be lor ever memorable Ml our liislor\' Tl Kit law ha? elli'cted, without any coum no- tion or tumult, a ret'ormilion of the most vital importmice md lias (Tea ted in our institutions a r<;mar kal )!(; clian'^e wineli liad di •come intus] d i)cnsal)ie md wiiicii con Id not lave lala'ii piaci- cjsewiiere unless (luring a pcrio( 1 ol t urmoil rcvohitMii and anarcliv, and even then it must have hroii^lit about by violence, injustice, and spoliation. might be cxpcc ted. a ciianm; such as that. or( l)ecn lered under siudi circumstances, could not take place, unless upon a jnsi basis, and in such a manner as to render full and entire justice to all the i)arties w ho would be allected by it, therefore our law of abolition of IfSol lays down the j)rincl- ple, tliat the suppression of the feudal rights and duties cannot take j)lace. un less the Seignior hr. ijuaranteed a reasonable indemnity lor all the lucrative rights which he held by law, and of which this enactment mustdej)rive mm. so declares that in conseciucnce of the immense idvantai^es which the Province in gen(.'ral must ck>rive from It h the abolition of these feudal rights and duties, ami the establishment of a free tenure instead of tlie one under which proj)erty subject to it, had been held up to that time, it was expedient to assist the Ccnsitaire to redeem those charges. "-■it ■ 1% 2d \y\\]\ n view of carrying' (tut tlioso doclnralidiis and of graiiiiii'jf snitahli! inclciunity and assislanrc to iliosi- ciititlecl 1o it, ami rendering,' tot'acli man the justice due to liiiii, the law provides for the nomination of Commissioners upon whom those duties devolve, and who are hound to make, in sueh manner as may he pointed out to them, such vahia- tions and estimates as may he necessary to ascertain the value of those rigiits, charires and ohlission of wiiich will yive a rii^dil of indeumiiy, com- pensation, or reiml)ursement, together with the proportion of them in each case. It was easy to foresee wdiat numerous difrieullu's those CommissioncM's would have to encounter in the exe(aitionof such \aried and complicated duties, ano what serious and perha|)s irreparable errors they nnght commit, more |)ar- ticularly in tiie interpretation of the law ol' Ji'c/'s which is so obscun; and so uncertain, and in the application of that law to the i)articular cases which would come. up l)efore tliem. In order to assist them in this task, to direct them in this operation, and to jioint out to them tlu; principh's of law by which they were to be governed, and upon which thev were to base their decisions, the Legislature, at the \\mv of enacting this law, created an exce])tional Trilamai, com- posed of all the Jndges of the two principal Courts of the Country, upon whom it im})osed the duty of ])ronouncing their (lccisit)ns and (expressing their opinions upon the questions which woidd be submitted f( lliem by Ihi^ Attorney General, touching those j)ointsoflaw which it was believed would re(|uire the consideration of the Commissioners, in determining tlue value of the rights of the Crown, of the Seignior, and of the Ccnsilairr, and also touching sueh suj)- plementary (juestions or coun1er-(iuestions wliich every Seignior w-ould have a right to make in support of his rights and pretensions. In order to dischargf^ the duty imposed uj)on him, the 3df .\tloTnt\v Gcnoral 1ms ]iro|)fir(Ml a s(^rios of questions Tv'liich comprise and reeapilulatc llie prol);il)le (liilienlties wliieli the Commissioners will iia\e to meet; and on their part, several Seij^nuors, availin'j^ themselves of their ri^dit prepared siipph'inentary (pieslions or eonnter-(]nes- tions, toii;ether with ^ome propositions whieh they wish to maintain in their favor. Those ipiestions and counti^r- qnestions have been aripied and maintained Ixdore this tribunal, by tli(^ Couiisri retained on both sides with sueh zeal, skill and talent that nothing more can bo desired, and in a manner fully ('([ual to the important interests entrusted to them, and vs'liich th.ey had undertaken to maintain. The imjK)rtanee of those inten^sts, toti^ether with the de- licacy and dilHculty of the (jU(!stions to be decided, has ini])osed upon the .Judges forming this tribunal, a responsi- bility, tile importance of which they fully feel, more partieu- ar ly wl icii tliev consider that the decision wliich they art 'o pronounce upon eiicli of these (juestions iuid prof)ositi( )W niiist guide the Couimissioners in their determiruition, anil must be considered l)y them as a liiial judLiiuent, without nppeid, binding tliem in their adjudication upon every duty wliich has falirn upon me as our of the members of this Tribunal, the few reiuarks which follow have been written. They are the n^sult of the researches and reflections made by me before coming to a final dettision upon the dill'erent same for the wIkiIc connlrv, did it s'ary in (lilU'rcnt Scigninrics, and in what nianm-r was this rate (h'tcrniini'd ? '1. Whether ih' rail's of thi" concessions were iixcd and dclcrniincd, or whether they were uniiniitrd and vohnitary, and d ('pendent on the >li|)iihilit)ns enlrred into hctwcen \\ ic narties, coiud the Sci'niiors, in their till( ie:ja !'y llil()ose I'lhcr iliu-y^ hesiih's cc//. rl. rnirr^i. and aiiiiiial dues ; or were iliey aHowcd h'l^'ally to slipidale ^\\r\\ oilier charges, reser- vations and restrictions as the Criisildiri s might lie willing to snhniit to ; il'>iieli chargi's and reservations were prohi- hited, Wert) they void ol iheiiisclves, or could llie^ merely be de( hired void ? o. I'pon what laws is this prohibit, on ionnded ? G. If at any time any competent authority has passetl any Legislative enactment relative to lixed and limited rates, and to the prohibition to concede otherwise than for ecus rt rentes, and animal dues, have those laws or l^egislativc 'Enactments been followed up and enforced, orliave they been ai)an(lon(>d ; hav(^ they fallen into desuetud(j and thereby become null and of no oU'ect ? 7. If those laws were still in forc(! at the liuK; of the cession of the country, have ihey ceased to he >o since that 'inie, either in (;onse(jLU'nc(> of the change of (Government and of the inHuence which such a change would have on laws of such a nature, or Ijecau-^e there have been no tribn- a{\\< in the country since that time compelent to carry Micm out ? 8. If those laws did exist, were they only for the ad- vantage of individuals, so that these latter mighl renounce 'hem and deviate from them, by making contrary sti])uUi- 1 . 6t/ lions, or were llioy laws ol'piiblit! order {(Tordrc piihlic) »«» tliiit thoy could not bo depnrtcil from by private; indiviiluals in any niunncr or under any pretext whatever? Tlic answers to tliost; several (luestions will be found in as many parai^n-aplis which are in the followini^ pa^es •. § 1. From the limi; wiien the iirst (;one<'ssions of Seignior- ies were granted in the country, the custoui of Paris was the law in force, having been introduced both by the Edict creating the Superior Coinicil (April, IGG;},) and by the deeds of concession and other documents anterior and sub- se(juent to the said Edict. December, 16 10, Concession of the Island of Montreal lo tli(! Seminary, — and, l)ecemi)er, lliiO, Concession to Chavigny i)y the comjjany of Nmv-France,— Establishment o( the Comjjany of New France (1G27-28.) In order, therefore, »o be able to state what was the feudal law of Canachi at the time of the first establishment of the conntiy, (we mjiy say from lG'27to 1711,) from the forma- tion of that Company up to the arrets of Marly, it is neces- sary lo ascertain what was at the same period the law which governed /;cfs in the country snbj(;ct to the Cus- tom of Paris; for it is according to the disjjositions of that Jaw that the right of the Seigniors of the Country must be judged, so long as they are not governed by some sj)ecial law and have not been altered by the deeds of con(;ession, which, as ihcy emanated either directly or indirectly from the King, the Seignior paramount of the whole of Nt;w France, might legally contain whatever charges, clauses and conditions as he or his representatives clK)se to insert, although they might bo contrary to the connuon law of the country. In France the Seigniors had an absolute right of jjropcrty over their //V/'n, which allowed them to dispose of the land forming those^'(?/;y, upon whatever conditions they thought proper. The light of disposing of their lands was only i iiniii- 'CCS- l;i\v Cus- thiit ;t bl' )ec-ial sion, Iron I \l!\V Id rotric'tcd in so fur as tlic (|ii:inlily wliicli they iMii,'lil alienate \va> (•(Miccranl ; this rcslriclioii is to lie foimd in arli( Ifs 51 ;in(i "'i "I liic I'listoiil, wllicll cslahlislics tllf I'nII |)ii\V('r wliii'li ilif Scii^nior lias over liis //V/". 'i'lu' rc^iilatidiis (H)ri- ccrniii:,' tin' pow'tT licld over tlic Ihfs^ wen', as uc know, ail ia l'av(a' of tlir (li)niiriaiit Sci-^Miior, in ordiT iliai lu! mii!;lit l>i' protrclfd, in his ri^^dits, against his vas>al, and iti nrdir llialllic latter should iiol have tin; power dl' pulling hiiii-'H' in Mieli a position as to he unable to fnliil Ms obli- n hint both liy his titles and by eoninion law. To allain the objeel which I have at present in view it is lUineeessary to disi;nss and examine into tin; elleel of those two ailieles ol' the Custom, the only objeet olwhieh was to reslrain and liuiitlhe right whleh the vassal had in Franee, /', by alienating more than a certain portion ol' ii : no person has ever contendetl that this right does not belong t(j th(! Seigniors of this country ; not only i' the most mdimited power given to them to dispose of llieir lands, but it is even contended that they obliged lliem to alii'iialc" those huids. It is sullieieiit to say that in France! it was optional with the Seignior to retain the; whole ol' his //';/", ol" whatever <'xlent it might be, la; might make use ol' if as lu! tliounln pr()j)er, he might (adtivate it or not, according to his own option, without l)eing l)ound to render an account to any person whatever; l)Ut when Ik^ did ali(!nat(i any portion, will) t!ie exct'ption of such reservaiions as wvvi'. uiach; in iavorofthe higher powers, he could alienate upon such (charges and conditions as h(! thought jjroper to impo-e, if the |)urcliaser submitted to them. In short the Seignior in France was notboun.lto alienate the lands com[)()sing his //<;/', no |)erson could ol)lige liiiii to do so, but he had a right to alienate a certain proportion of them u])on such charges and conditions as might be agreed U])()n. I Sd VVt! liiivr; riln'.idy sliitcd ihal ilic S'-i-jfiiior in ♦ 'mikuIii \v<»nl b^ iVac- hv (•onli'^c.'ilion and rftiTncliniciit. I -^aN lliat this rr.siilt i.s imporlanl, -iiicc it Irads us lt» iiKjiiiir iiiio and asccrlaiii llic somcu (»rsii«li a power, wiiicli eaiiiiDl he atlrihiited lo an arbilrary u ill, iiiilcss noolliereaiise nan lie 101111(1. 'I'lie s(>iiic(! lliereloic oT lliis I'xoihilaiil pouer, u lii( li (lid not exisi in Kiance and is eoiitrary lo eoniiiiori law, is to he loiind in tlic deeds oi" coiieession and other piihlic (|o( iiiuenis olllie period of wllieli we speak. In the puhlii doeiinients I'liianalinL,' either Ironi the sovereii,Mi liim- seiroriViMu his represeiiliilives, \\c everywhere discover the slron?;c.st expression and the iii((>«l evident prool oi his iiitciiiioii to use all ill" means in his power to settle and oi)loiii/.c the eoimtry, and to ean>c the land t(t he cleared, ciillivali'd and settled upon, toijctlicr with the lirn:e.t de- lermination to set aside the ohstacles w liich nii^dit oppose the tiillilment of his plan, and severely to puni.>h those persons who should put any obstacle < in the way. The emuueration of all those docuiiK'tits woidd he too iitn^', it \\ ill be sullicient to mention a lew of them, I'roru 'vhich we may judi,M' of the others, and in order to be brief I will cite, without ajiy eouuueni, from tin; two arrets which have been spoken of: I. 'I'he Act. creatini^ the (;(.nipany of New France in I()27-'i8. 2. The resigna- tion of that Company, and more particularly the acceptance by the Kini,' of that resiifuittion in l(!(i;J. .'J. TIk; forma- tion of the Company of the W'est Indies, in 1G(M. 1. The revociuion of that Company in 1()7 I. 5. Tlu^ leni,Mhy cor- respondence between tli(^ Colonial authorities of Canada and the ColonirU Department in France during the years 1707 and 1708. Mat iftlie King's intentions, in relation to that matter, are made clearly manifest by means of those docuiuents, and UKUiy others which might be cited, we find, in the deeds of concession of the period in (juestion, the jiositive proof that lhos(j intentions were perfectly understood by the « ;t;i' : 1 r.6-"' 10 d pari ic-^ to whom those concessions were niad(>, and thac lliosc parties had ibrinally promised to ai^ree to theiu. In order to Ix'come satisfied of tiie truth ortiiis assertion, it is only necessary to refer to the numberh-ss li^rants of Seignior- ies, in whicii tlie obligations of c-onceding or enhivating, of sellling upon or causing tlie land which had l;ecn granted to them to be settled upon, is mentioned in file nidst eh-ar and express terms. Within the lapse of time which comes under our notice, we lind a number of titles of dilRnent dates, which contain that obligation, which was moreover so reasonable, so conh)rmable with tiie position of tiu! country, and in such harmony with the interests of the Seigniors themselves, as well us with that of the colony it. self. Those titles have been recapitulated in Mr. Dunkin's work, to which I refer generally, confining mysell to the citation of a few concessions only, which will give; an idea of the others. According to my mind, although those conditions were stij)ulaled in the titles, they did not prcvcmt the Seigniors from being the real j)roprietors of their /icfs ; those condi- tions do not constitute the Seigniors mere trustct's, as it lias been j)retended they did, into whose hanils all the lands of the coimtry had been conlitled for the i)urpose of l)eing subsc(iiiently distributed to such persons as might rcMjuire them. No, the Seignior in this country, as in Fiance, was the master ofhis /if'J\ he had this doiiuuinm diniiiini^ and doiuiiiimii ulih: of it, he could use it and cultivate il himself, and ret;iin for himself such j)()rtion as he thought proper; the French (lovernment, v^hose object was to coIouIm' and set'le the country, merely saw that the Seigniors diil not, either through apathy, negligence, or i'alse views of pros- jjcctivi! |)rolit ami speculation, retard the realisation oi' plans which would benefit them as well as the other settlers. In one word, the obji'ct in view was, and it was all that could be reasonably desireil, that the conceded lands should be cicar( that t to wl come desin seven the S about prove not (ICC (US I md I not. Iros- 1 11 cl (Mcarcd, cultivated and l)C(;()ni(' iuliahilcd, not only in order lliat tlu'y should not reiriain uselos> and valueli'ss lor those U) w honi they ijeloni^cd, but also that they should not be- oouie an ol^staele and a nuisance to those persons who wore desirous ol' deriving benefit from tlu'ir own lands. In several ol' these titles we actually do lind the condition, that the Stiigniors sJiall he bunnd to coitade^ but that clause was about the same as the one fo cu/licate, scLilc vpoii and im- prove ; because it was well known that those lands ttould not 1)(! obtained unless by conceding, soiisiHfiodant on acansant. We will now refer to some of these concessions. The lirst that I cite is that of the IGth January, IG.Jl, t(» one (lillard, ofthe Seii^niory of ji(«au|)ort, that coneession (.'onlirms what I have just stated ; the following clause is to be found in it : " On condition, uj)on each mutation, of the payment of '■'• one year's revenue of whatever the said (Jillitrd ^' may have reserved for hims(>lf, after having granl- " ed a firf or a reus or // rctihs ilie whole or a portion '■'• of the said premis(^s." By that clause Ciliiird \vas at jjcrfect liberty to grant a Jiff or a crns all tlu^ lands of his Seigniory, if he thought projjcr to do so, but it was e(iiially optional with him only to grant a portion, sind !o retain as ;iiuch as he j)leased ; and even upon what he thus re- laiiieil, he |)aid no dues to the So\(M"eign who had only stipulated payment ui)t)n whai was sold, and iiot upon the remainder. The concession ol the' loth J;inuary, 10:2G, coiitains it liKc clause and gi\('s rise to the same inli-nMice ; there are several more in the same terms, or in analogous ones, and I conclude from that, 'hat the Seigniors wi're bound by their titles to cultivate their lands, but were not al)solute b olilig(!d to grant iheui a Jicf or a cruity nor even to alienate them at uU. i \-'.' 12^ But in order lo boromc convinced as \n llii' cxislcncc ol lli(' ()l)li:;;ati()ii on the part ol'tlie S('ii2;niors, hv virtue ol'liieir titles, to Avork and cultivate those lands or liav(! tlieui culti- vated, it is onlv nec(^ss;irv to reler to some olfliose titles, \\\ Avliieii that ohlii^ation is lidly and |)lainly expressed. 'riie followin!j[ citations are due to INIr. Duidvin, to wliicli I refer, merely 1,'ivint,' for my own part tlu^ numbers of tli<> tides pointed out ; to wit : \o. .5, H, !), 10, li, l.J ;uid a i,'re;it numl)er of others, in wliicIi is mentioned, in varied terms, the ol)li^ati(in wliieh the ;,n'aii1ees cotitracted or had coiUract- ed of cultivaliui,' the land-; which had been ^rallied !o ihi'Ui. and of iulrodiieiu^' ink) the cou?Ury persons ahic to do so. In other lilies ^tieli as \o. 1:), ."i.j, 57, (il, ()i, (i.j, (II, G.5, (!r», G7, and se\eral others, the Seii;iiior is ohlii^cd per- >onallv to reside tipouhis Seiijniory [h m'r J'l ii 1 1 li< n] and to force his t"nan!s to residi' u|)on the huids {hnirf'K it Urn) w liieh may liaxc heen granted to them, rmd to make an e\pr(>ss stipulation in their deeds of coiu'cs-^ion to that pH'ccI, in default whereof tin; mTkI hunls would return lo the Seii-niors. « )">■ ■} Finally there are others wherein it is stipulated that, with- in a certain tim(>, the Seiunior shall couuiiencc the clearing of his concession, in default whereof the lands I'orminii; die sauu: shall l)e reunited lo the domain of the Company, (see Nos. 1J5, 110, 10.3, 107, 109, 177, l!)>, lM)J, :jr)H, 007, ;328,) or els(> he shall have them cleared and selllcd upon, and [)Ul up iMiildinL;'--. and stock- Hi'Mm widi callle wilhin 1 ^\-o years, ollierw is." the i^rant shall hrcome void, (see .\os. n.'J, 17 I. 175, 17(;, ,».s.>, ,>S7, 2*)\ ;]J1.) All tlios'- concessions and many odiers contain one of the clau'-es ai)ove mentioned, dial is lo s,iv, 1. To reside u|)oi! the hind {Iniir fvn (I lii ii) or cause others to reside upon ii ; 2. To hrinij: over to the countr\' a cert lin munher of person^ to reside upon, establish and lailtivale the said lands ; [). To clc;ir tli''m and caic^e them to Ijc cleared \\ idiin a ceiiMia 13 d IllIlC, II iidrlaull whcrt'of llic c'oiK:c'^>su)ii slioiiltl bfcoiiu' \()1l1. ■» (sec .J Jo.) 171. [t is nrv('rlliol(^ss true lliaMli'M-c arc soiiif titles, and llicy arc siillicicntly iiniiicroiis, in whi'-li no uicntion Aviialcvcr is is made of ifiat t)bliifalioii, iieitlicr in one form nor in another; it is not to lie understood Iroin tiiis omission tliat the concessions which do not ctintain tiiat ohliii^alion, have Itccn made upon any other conditions than the others, and tiiat the j)ersons to whom tliey had l»een ii^ranted, were not hound to cidtivatc, improve, and re<^i(ie upon the -iiid lands, and cause them to he cultivated, improved and inlial'lied, and that this is the |)lace to apply th(.' maxim. inrhisio iiiihis fit cxclusio (tllcriiis. Si. eh a conclusion '.voiild he absurd, ^■inee it caimot be reasonably ima^iiied that llie anthorilies had an idea of luakini,'- a dili'crencf; Ix'lw ccn some of the Sei>rniories and the dthcr-i, upon such an important point ; that they coidd liaxc desired to see some Seiifiiiories improved, while they allowed others in remain without any impro\-ement : such a su|)- position is not possible, since it would ha\(' the "licet of entirelv |)aralysinii; tli(> settlement of tlii- coun- tr\. which lliey W(>re so desirous of colonisinii:, in >ii( li ;'. ease these Seiij^niories would become ;ui obstacle to the clearinii; and cultivation of the others, upon which that ohliiration had been imposed imder pain of forfeiture. It is much more natural to suppose; that, in those conccssion.s where that ol)lijj[at,ion is not expressed, it has been under- stood ; it was not thouii^ht necessary to insert it, since the inti'H'st of th(! SeiL,'ni()rs beini,', as it has l.-'en before stated, iciciitieal, in that respect, with the interest of the State, it nii;:,dit l^e expected that tJK^y would act of themselves in accordance with the reciuiremenfs of that interest, witliout it8 being necessary to state it in a formal manner. From all that prcedes \ come to the conclusion (and I thus answer the lirst (|uestion I liave put to myself) that witiiinthe interval which elapsed from the settlement of the country up to the year 1711, the custom of Pari.-j has been the comnjoa I 4 14.-/ fijucliil law ofC'anrula ; iIkiI dnrini^ that period no c^onoval la\v was |)roiiiuli(at(!{l w liieli altcictl it, and, tlirrolbrc', accord- inif to law, tiic riij;lits and diilics of tin; Seigniors, at tfic period in (pu'stion, were tin; same as they were in Franee in siK^h K)ealities as were i(overned by tli;it custom ; eonse- queiitly llie Seiirniors, here as well as there, were the pro- priett)rs of the lands composing llieir//V/"y ; and here as well as Ihen^, they had the dominiuni dirciium^ and the (loiiiiinion uti/c, but, nevertheless, thai right of property was, from the commencement, limited and eireumseribed aee(jrding to llu> eiremnstances of the country, to tlu* obligation of resid- ing upon the said lands and causing them to be settled anil cultivated (Mther by themselves personally or by their ten- ;.\nts ; that this obligation was imj)osed upon them by tiieir deeds of concession, inanumb(,'r of which it is expn^ssly mentioned, while in the others it is })erfectly understood, as it is established by the ri>gulations and public documents previously mentioned, and by others emanating from the Royal authority which, although it was not in the form of a law, antl did notimj)os(> any i)unishmeut against hose con- travening it, was nevertheless of such an ol)ligatory charac- ter that it could not bi; misunderstood, and in fact was not )nisunderslood. iS'2. But as experience i>... proved that neither the clause's contained in tlu; titles, nor the waniintT!^ from the authorities, nor the self-interesi of tlii' Seigniors were sullicient motives to induce them to carry out an obli- gation so imj)ortant to the prosperity of tlu; country, the King of France, being informed by his ri'|)r"sentatives in the colony of the abuses which existed in that respect, thought the time had arrived when it was no more right to leave to the Seigniors the performance of a duty which they had so long neglected to fuliil, and the non-execution of which had been so prejudicial to the interests of th(> colony. It was for these reasons that the King of Frantte pronmlgated the Arr^t oi \hr. Gth of J'dy, 1711, which may he considered as the first legislative document concerning iiie c( • ;' toi III TI > the S 1 the la settle* %' -.1^ secoii -1 nieiic 'i and ll ^■M -Ji lands ■Ti', 1 then), tliiittli ■^ 1. 'I'll; TV elcni'c 1 their 1; tidii ;i i ofth' M time, t 1 Majcsi i)y virli 1 thefh) eonced tlicir K, 15(1 Itlier m iin ahnses \v!iicli the S 'i 'iiiors of the country wtM't,' i^nilly of; the lirst is tlial th(> lands whieli had hi'cn i,M-unted as Seii,'niories wi-re not sL'ltled upon nor cuilivated as they shonlil have i)een ; the socoikI is that ih" SeiL;-niors theniscdves iiad not yet eom- lueni ed lo clear th(^ land in order lo establish their domain, and the third is, that souk; Seii^niors refused to concede l;in(l'< to such si'ltlers as rcfjiiired them, with a view of sellini!: llieni. It was for the purpose of remedying,' these abuses diat tliis/l/"yt'Mvas made, ;uid that it was thereby onhiined : — 1. Tliat the proj)jietors of those Seii^'niorics who had not cleared llieir domain, and who had placed no settlers upon their lands, should be bound to put tin; land under culliva- lioii and have it settled within one year from the dale of th ' /J//V'/, in default whereof, aft(>r the expirati< of tlu^ ordinane(!s to l)e passed ior thai purpose l)y the (iovernor and Intendant. 2. 'J'hat the S(d;,'niors should concede to the settlers such lane)-; as they nn^ht require in their Sci^MUories on condition of the payment of dues, and should not rced Ujion the other lands cor. \,-ded within the said Seigniories, whicli (lues should be paid by die n(;w settlers into the hands ol his Majesty's Receiver, and the Seigniors should have no share whatever therein. Tlu! lirsl part of this di.'cree does noiiiing mo: c than order, nnder form of law, tlu^ putting into execution of ''le clause's we have mentioned, wdiieh wx're eitiH>r expressed or un- derstood in uU the deeds of concession, and which obliged ■'V: llio Seigniors to livu [Icinf fen tt Urn) upon llicir lands, lo (;nlti\alf and improve lli-'in, and also to caii.-c llicir Irnants to rcsid" upon tlicni, and ohlii,^' tliciii to culliNatc anil ini- j)ro\(' the huuls w liicli were granted to llieni. Ijv this condition the Kin^' of I'ranee was d(>sirous of inukiiig up lor many omissions wliich had been made in certain deeds ol' concession, and of cstahlishing nniforniity ihrouifliout all tli'- SeiL^nidrics, and more particu- larly of providing cxpi'diiiiiiis and siu'c mi-ans of enforcing lliu fiiliilment of an obligation of so much importance, by eslabli-hing a |/cnalty with whicli they would be \ isiled. This clau-e in the law, refers both to the concessions alrcndv niadc, and to those \\ hich might be made then alter. 'I iiMc V a- no iiiiii,>tice in this, if it be true, as it has b"en staled .move, that the coiice>-i(iiis gianl''d up to this lini" cMiitniii- ' (\ the o!)ligation, either e\pi-es>!y mad'- or implied, 'hat ■ his law was to be put into excculi'.in. A> to il;e second enactment in thi-- decree, it is withtMil ■ K'uiit, in1roducU)ry of a new ri'.;; •, and elleeicd a rcmarka- l)le alteration in the freedom w "aich the Seignior had pos- ses «■'(! up to that time of dispo^^mi;' of his ftcf as he ihou'^dit proper. For w<' have already remarked that, although th(^ Scignicn- \vas bound to cultivate his lands, reside upon ihem and improve tliein, he had nivertludcss lull and cn- lirc lil)crty as to the modi' by which he attained that object ; )i(> could cither ci.liivale theui himself or by persons in hi- einplov ; he C'cn^ld sell, gi\e, e\ehaiige or otherwise dispose of his lands, 'rV'hencoucciiing, w hich was the ousicst system, and th(! on' gein'rally followed, he could do so under sucli chari^e-; and conditions, and al such rates and terms as might i)e agreed upon with the C< nsitdire^. liefore 1711, \\w)\ \vas no law, eit! •• ex] lessed or undcrslootl rcstraininv the pi>wcrs of the Scignjors in tiiose ' 'spects ; .soiongns ijic liinds w(.'re settled an'i cultivated, he ami. fulliljed his obli- gation, and nothing more could b(i recjuired of him. 11 d lo 'bat "1 1 cu- i jcct ; n 111- i[)OM' ilCIIl, siicli S '1^ 71L nin.'.^ } s thf obli- r. TlK" jtn'ainbli^ to this (Icereo S(M I'ortli a si.ik'- jiviii N^liicli, in jjoinl ol" fa(;t, ^vils false, tlmt is to say, thai, ;li(; riu'ht of selling and disposini,' ol' their lands on any olhcrconditions ihan for dues, is jjroliibitcd by the chiuses contained ni the deeds of coneession to llie Seigniors. This statement is ineorreet and is not foun(h'd on fact ; no siieh prohiltition i-^to he foiinfl in the tides ; nevertheh'ss it was (jiiite sullieient thai it shonhl he contrary to his Majesty's intentions, as it is stated in Uie ])ri'aTnble to this decree, for tlit^ Kinuf of P'rance, whose authority was unlinnted, Icirally toordain, as in fad he did orchiin, that in iiiliire' the Seiirniors should be i)i)inul lo concede lands in tlieir Sei- i^Miiories to such setllers as wouhl rciinesl them to do so. i'his provision of tlie Arn't^ althouf th(.' passing ot ihat law, the Seigniors were not only obli'/ed to concede their lands to such persons as woidd re- i|niro them, but m(>r(>o\-er they wen.- not al liberty, in t!;ese •once ;|on^ as lliey had | )reviou ^Iv 1 >een, to impose such ;l)urges reservations and restrictions as thev thonulit nro per; but that the only charges which they had a right stipidate for, were the reus ct rciihs or a preseniation eiihi-)' in grain or money (>r other produce, payabh; animallv, as intended by the woi'd ihus [rvdcvdiicvs) which nieaus a ddtt, itir •:c or )•(//! to be paid every year. Consecpienlly from the time of the passing of the Arret of Marly, the Seigniors were bound to concede on condiiion ')f payment of dues only, {a litre de rcdcvaiices.) All oilier ''liari{es in (he form of reservations and rcslrietious were illci^al am 1 cont rarv lo this law, ■i,: m \:''.\\\ Hul the right of the Seignior iluis limiled, was not re- i'i: n^ >-^::'^'> 19 d stri(!ted, so far as the amount of dues to be imposed is con- cerned. In that respect no restriction was made by this Arrct^ which did not establish the rate at which those con- cessions were to be made. It is only in the case, foreseen by the decree, where the concession was to bo made by the Governor and the Intendant, that it should be made " upon the same conditions as were imposed lor the other lots of land conceded in the same seigniories." The reason of such a condition is easily understood ; the Governor and the Intendant had no right of ownership over the lands which they were empowered to concede ; they could not make any stipulations with the purchasers; they required a certain and uniform rule of conduct, applicable to all cases ; and this rule was naturally applicable to the concessions already made in the seigniories, wherein the lands to be conceded were situated. No more just or satisfactory suggestion could be made with reference to the conditions to be inserted in the concessions, than to adopt those which the parties interested had freely agreed to in the otlier deeds of concession in the same locality. This rule was moreover conformable in every respect to the com- mon law observed in France, according to which, in those cases where the original deeds of concession could not be produced, either by reason of their having been lost or from any other cause, the CensjVaeVeof a lot of land was bound, so far as the Seignior was concerned, to submit to the same charges and dues as were imposed upon the lots of land situate in the same seigniory, and in certain eases to those imposed in the adjoining seigniories. Consequently, that pOTtion of the ilrrt'^ of 1711, which establishes the rates at which the Governors and the Intendants were to grant eon- cessions, is merely the expression of the common law. But the same reason did not exist where the Seignior was the person who conceded to the Censitaire who freely accepted ; both being parties to the agreement, so far as the amount oicens et rentes and annual dues was concerned, fiiey c( since t Fron Marly , far as t the obli oede tl IJut wit 'hey ha The. respect I'd the n particul; -{niors t( to conce It is p sion of i 1711, is " alone ( •' the dec (see Dur that in se •clause ol inary cem 386, 387, These < the Arr(It previous 1 'Conclude, that they ^ t'xplaininj In fran capitulate perty in th 19 d ind )se at lon- lior 'ho I far they could make such stipulations ns they thought proper, since the hiw did not deprive them of that right. From all this, wo must conclude that the first Arrit of Marly limited the rights of the Seigniors of the country, bo lar as the right of keeping and retaining their lands, and the obligation which had been imposed upon them to con- cede thein for dues alone, {redevanccs) were concerned. But with reference to the amount of those dues, {redevanccs) tjiey had the right to settle them as before. The Arr^t of 1732 did not make any innovation in that respect ; it merely confirmed the Arrdl of Marly, and order- ed the more precise and rigorous execution of it, and more particularly of that portion of it which prohibits the Sei- ;^niors to sell their forest lands, and which commands them to concede for dues alone {redevanccs.) It is proper to remark here that, in several deeds of conces- sion of Seigniories granted immediately after the Arr^t of 1711, is to be found the stipulation : " to concede for dues ■' alone {redevanccs) and not to insert any other condition in •' the deeds than for dues alone {simple litre de redevanccs",) (see Dunkin's Digt. Nos. 3G9, 370, 374, 375, 37G,) and that in several other subsecjuent deeds is to be found .mother clause obliging the Seigniors to concede " for the custo- mary cens, rentes or dues," (see Nos. 380, 383, 384, ^85, J86, 387, &c.) These conditions, which are almost in the very words of the ArnH of 1711, are not found in any of the titles granted previous to the passing of this Arret, from which we must (Conclude, that it was in order to put this Arre't into force, that they were inserted, and they assist in confirming and explaining that Arrit. In framing my answer to the second question I re- capitulate what I have said by stating : that the right of pro- perty in the land belonging originally to the Seigniors, sub- ■I 20 d jt'ct only to tlio ()l)li!L,'ati()ii oxpvf'ssffl or iiiulorstood in the (lends of ron('oi«sioii, of residing upon lliciu, of ciiltivalin^ and of incrcasini^ lln-ir vmIuc, Ikis sinct' tlicn liccn fiiiilici limited hv till! ylr/-(7of Marlv of llie Gill of.Iiiiv, 1711, wliieh de for dues alone, imposed upon the Seigniors by the Arret of Marly, is not accom- panied by any ol)ligation to concede at any certain rate more than at another. Not a word is said about it in this Am'l, and everything is left in the same state in whieli it was at first. This law did not, any more than any other, eiilui- anterior or subse(irient to it. Uxor limit the rale at wliich concessions were to be made ; the law of tin- country did not establish it eitiier, since we do not lind in :iny of the decisions of till" tribunals, any fixed rat(; or uniformity in the ackn.)\v!edged rates, there being a variance in that res- pccl at iliflerf nt times and in dillerent Seigniories ; from this I must conclnd(>, while giving an an'^wer to tlii third fjuestion, th.it, neither according to law, nor according to juris])rudenc.e or custom, there Avas no uniform and fix- ed rate at which all the Seigniors were bound to concede their lands ; that they were always free legally to stipulate with their Censilaires for such au amount of dues, {rede- ranees) as the latter chose to submit to. § 4. But by the Arret of M;u'ly, confirmed in that respect by that of 1732, the Seigniors are t)articularly commanded to con- code merely on condition ol payment of dues,(.«w;>/c5 redevan- e e;] therefore, all the charges, restrictions antl reservations which do not come undevthe category of dues, {rcdevanccs) arc a id. 21 d prohil'itfd by liiw, and must be looked upon as bcini,' void. I sliall not: af prcsml iiKiiiire \\ liedicr tlio'- cliar^a's and icsri\ations, over and al)ov(! llic dues [rcih caui'ts) an- iiiill [ilrno ji(i'(\ or il it is m rely possible lo have liieui annulled ; j'or llie present I shall only state, with the U'uleistandini,' that I shall herea.t t iiave a riy;ht of irivini,' my rrnsons, that those re.-ervations i)eing prohibited b\ a positive law, the Seii^niors have no rii^dit tv) make them :he loundatioii ol' a claim lor indeMUiity on aeeouni ol' the suj)pression of rii,'hts which they had arro- valed to tlKunselve.s contrary U) law, altliou^di it was (lone with the consent of the Coisitairv ; more parti- ( iilarly when, as in tlu; prcsi'iU case, tin; '' ilairc is not the only out! who is called upon to pay tli, iidemnity, but that a lari^c! portion t)!" this imlemnity has to \n\ paid out ol the public Treasury, while iIk; country has had nothini; to do with these illegal stipulations. 'riierc'lbre t(» the I'ourdi (piestion which I have put, I answer that the; dillerent reservations cojitained in the deeds of concessions, over and above the animal veils cC nnlcs and dui's, are illejj;al and contrary to a j)ositiv(> law, and cannot be a reason for paying an indenniity to the Seigniors. § 5. The illegality of those reservations which do not come within the (.-ategory of dues, {rcdcvdnccs) and could not legally form part of the conditions of the concessions, is feiuided upon the first Arret of Marly, which is confirmed by that of 1732. § G. It will be seen that the Arret, of Marly, as 1 under stand it, has not fixed, nor limited, the rate at which the Seigniors could make their concessions ; that no otlu>r law has deprived them of the right of making such conditions v.Jili their Ccnsitaircs as they thought proj)er in resjjcct to 1 .! (<■ IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I m 1.25 1.4 1.6 Photographic Sciences Corporation /. SP MP. e M""^^ »^^ ,V \\ % .V <> % O \ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 22 d the amount of dues to be exacted. The laws which pro- liibit the Seigniors from selling their forest lands, and which oblige them to concede those lands on the condition of the payment of dues alone, are the Arrets oi Marly and of 1732. The difficulty which I have to solve in order to answer the sixth question, is to ascertain if those two laws have fallen into disuse, or if they are still in force. The affirmative is maintained on behalf of the Seigniors who pretend that those laws are not now in force, that they have fallen into disuse, in so far as the obligation is con- cerned under which they were, pursuant to those Arrets^ ol conceding their land to the Censitaires who demanded any on condition of the payment of dues only ; and that for two reasons : 1. because previous to the conquest these laws were not put into force ; 2. because since the conquest, they were not enforced, and they could not be enforced, there being no tribunal competent to enforce them. These laws did exist, they had been legally promulgated, and at one time they were in force in this country. It re- mains for those who pretend that they have been abrogated, to show what law, custom, or jurisprudence could have caused the abrogation of them ; the onus pro- bandi remains with them, and so long as they have not established that, these laws may be looked upon as being in force, and may be set up against them. Let the authorities which establish what is necessary in law, to cause the abrogation of any law by its not being in use, or because it was not conformable to the ordinary custom be read, it will then become necessary that the parties, who invoke the nullity of these laws should show that in point of fact what is necessary to establish such nullity can really be invoked against those laws. It is not sufficient for this purpose to say that no judgments were rendered upon those laws ; it is possible that the Seigniors did not expose themselves to the penalties 23 d imposed by the decrees in question, or, that if they did so, it was not remarked, or that the law was not carried into effect. It would be necessary to establish that the question was regularly submitted to a tribunal, and that by a series of uniform decisions given affor due examination, and in cases where the question had been raised by the parties and submitted to the judges, it has been decided contrary to those laws. § 7. I shall now pass on to the seventh question by which it is asked whether the cession of the country, and the change of Government, could affect the validity of those laws, if they were previously in force ; and if since that time, there have been any tribunals having authority to put those laws into execution. The laws relating to fiefs form, of necessity, part of the civil law of the country, and those laws were guaranteed to us by the capitulation and the treaties. The Arrets oi 1711 and 1732 which had modified the laws of fiefs^ being pari of our civil laws at the time of the conquest, were allowed and preserved in the same manner as the others ; and since then have continued to form a part of our system, as they had previously done, and have been in full force and effect as they were previously. But on behalf of the Seigniors, it was pretended that these Arrits were nothing but penal laws, that they were only rules of police, and as such they had become void with the change of Government, which at the same time that it placed us under the control of the English Criminal Code, had abrogated all the laws of that kind in existence before the period in question. But this pretension is too absurd to merit any serious con- sideration. These Arrits only modify the Custom of Paris, they repress a mere civil abuse, they impose a penalty which is entirely a civil one, not for the punishment of a mis- demeanor, but to enforce an ordinance relating to property, >\f. S- J'' ^■^' I i^i: :' ■4 1 1 i :-4 Vi :i 24 d which is in every respect essentially a civil one, and they cannot for lluit reason, bo numbered among the criminal laws of which we have been deprived by tiie conquest. Consequently the cession of the country has not, in the slightest degree, had any effect upon the Edicts which art now before us ; it remains for us to ascertain if, sincp that period, it is really true tliat there have been no tribunals in the country with competent authority to have them enforced, and if in conse([uence of that supposition, it must necessari- ly follow that these laws are abrogated and have ceased ^'s exist. As to the fu'st point, it has been pretended that the powers granted to the Governor and the Intendant jointly, by the first of the two Arrets of Marly were, at least in part, ad- ministrative and not judicial powers. It appears to me that the terms of the decree are repugnant to such a pretension. In the first place \'. liuvin<( fallen inlo disuse, l)eciiuse it w.'is not thought proper to establish a tribunal to put them into ex(»eution. The reasons giveii above forbid such an idea; the only fact which remains is, that since the conquest, the law in ques- tion could not have been carried out judicially because there was no tribunal established for \\u\ ])uri)ose ; this would not have had the eil'ect of abolishing those laws, but would only have rendered them ineilectivc for a time, the abolition liy disuse being founded uj)on the ])resumption that the law, thus abrogated, lu>s been abandoned by the mutual consent of the authorities and of those subject to it, and that it has been agreed to look upon it as being ne more in existence. It is however false that, since the concpiest, there has been no tribunal to })ut those ylrrc/A' into execution : the con- trary is clearly })roved. §8. The eighth and last question is whether those laws were laws of public policy (ordrc jmb'tcc,) and whtther ])ri- vate individuals were allowed to derogate from them l)y any private agreements. This question was partly answered when I stated in re- ply to the fifth question that there was no necessity to solve the dilficulty raised by the desire of ascertaining if the charges, conditions and reserves stated in the deeds of con- cession contrary to the edicts above mentioned, were null plena jure or merely voidable; that it was suifieient to state that they were illegal and contrary to a positive law, and that consequently they could not form sufficient ground for any indemnity in favor of the Seigniors. But I am de- sirous of explaining, and of giving, at greater length, the reasons upon which I found my opinion. It is necessary to examine the enactments of a law in order to ascertain if it is a law of public policy, {cVoidrc m 20^ Duhlir), or if tho parties snl)joct to them, have a rif^ht to de- rotate from them. The first ArnU of Marly contains two ■icparale provisions. 1. The obligation on the part of the Seiajiiiors to cause their lands to be cultivated, and to place settlers on them within one year, nndcn* penahy of re- union to the domain ; 2. The obligation to concede their hinds for dues alone, a simples rt'dcvnnrcs^ to such persons as sjiould require them ; otherwise, after having demanded the concession and having been refused, they had a right to obtain ilie concession of the lands from the Governor and the Intend- ant, who were commanded to grant those concessions upon the same conditions as the other lands were conceded in those Seigniories. There is not the slightest doubt that the first provi- sion, which ol)liged the Seigniors to reside upon the lands and cultivate them, or cause them to be cultivated, was one r)f])ublic policy, and that no individual could avoid obeying it. The puljlic authorities were bound to see that it was })ut into execution, in order to promote the settlement of the country, for public interest. As to the second clause, which obliged the Seignior to concede for dues alone, {a simple Hire de redevances,) it gavetlie person who was desirous of obtaining a grant of land, in case of refusal a right to cause it to be granted by sum- moning the Seignior before the Governor and the Intendant ; tiiis right was in favor cf private individuals, and also ibr the general interest o' the country. Nevertheless this portion of the law could not be carried into eifect unless at the request of private parties ; it was only when they made a complaint, and the Seigniors had refused, that the Governor and the Intendant could make use of the powers conferred upon them by the Arr(^t ; so long as no complaint was made, the authorities were supposed to ignore the grievance and could not interfere. I infer from this, that that portion of the law was more particularly in favor of private individuals. If these latter, instead of taking advantage of i ' '' I i ■i! 30 d the riglit given them to summon before the Governor and the Intendant, the Seigniors who should have refused to grant them by way of concession the land they required, upon the con- ditions pointed out bylaw, had preferred submitting to condi- tions other than those at which they had a right to obtain the concession, this agreement, so far as they were concerned, was valid and binding upon them ;the public authorities had nothing to do with the matter, for, in that particular case, public interest was satisfied, inasmuch as the concession was granted, and the land was taken for the purpose of being improved as required by law, although it was upon less favorable conditions than the tenant might have obtained. This view of the subject appears reasonable, for without entering into an examination of the question to ascertain if, under those circumstances, the Censitaire^ by appealing to the authority of the law, could be exonerated from the obligations he might have voluntarily contracted, we may say, without any hesitation, that he alone had that right, and that no other person would be justified in making such a request, because he was the only person interested in making least. it, and that the public were not interested in the But that is not the view we must take of the subject. The Sovereign power which enacted the law in question now desires to abolish it in the interest of the public, but it does not wish to make this reformation without a good and sufficient indemnity to the persons entitled to the same. In order to establish the amount of that indemnity, the repre- sentatives of that power to whom the execution of the new law is entrusted, have caused the Seigniors to produce their titles, and have discovered that they contain clauses prohibit- ed by the Arrets of 1711 and 1733, upon which these latter found their claim for indemnity under the pretence that the Censitaires had voluntarily agreed to them. Is the 31 rf Seignior justified in his pretension ? that is the question. For my part I thinic this question should be decided against the Seigniors. So long as the violation of the law was kept secret be- tween himself and his Censitatrey the public authority could not, and had no right to interfere. But from the moment the question is regularly brought before the public, it must reject a claim based upon an infringement of the law, more particularly when, as in the present case, the public treasury furnishes a large portion of the indemnity ; would it not be an absurdity to indemnify the Seigniors for having violated a public and general law which we acknowledge they were bound to submit to. Tiiese arguments might be carried much further, but what has already been said is, I think, sufficient to prove that the Seigniors are ill advised in demanding an indemnity for the loss of the value of charges and reservations which they should never have imposed nor stipulated, and for the im- position of which they might have been punished by the law which was in force at the time they were imposed. I am therefore of opinion that without declaring those deeds to be null and void which contain those illegal stipulations, and without declaring those clauses themselves to be void plmo jure, or only voidable, the Court has a right to state, and it is the duty of the Court to declare, that those con- ditions are illegal, and in direct contradiction to a law which prohibits them, and consequently that no indemnity should be paid to the Seigniors for the loss of the pretended rights which they had thus acquired. In consequence of the above reasons, in answer to the eighth question I state that the Arrets of Marly, and the Arr^t of 1732, were public laws from which neither the Censitaires nor the Seigniors could derogate to the detriment of the public. ^r. .. til 4 i r '; 1 I i \\ 32 d SUMMARY OF TIIK FIUST DIVISION. Hcforc 1711 llu! cDiinnon fciKJjil l;i\v of ('.■iniula was tlic sanii! as that in force under the Cnstoin of Paris. Up to that period no m'eneral law had modified it so as to make any alt(.'ration in th(^ rii,'hts of the Seigniors of the country over thcirjicfa, from what they won; in France. Jiut in llio deeds of concession of the Sei^'niories and in the public (k)cuments of that period, we iind inserted, eitlicr expres.sly or olh(>r\vise, the ol)li fidfilled their duty, and in that respect they liatl the Kanie power as they had in France. Hut this power was limited in 1711 by the Arret of Marly, which, under the form of a law, caused the obligation to establish the lands, or to have them established, indt;- pendently ofthc deeds of concession, and of the condi- tions which had been imposed, to be a general one for all the Seigniors of the country ; another obligation was imposed upon them at the same time, which was to concede the land to those persons who should require them for dues alone; and an express })rohibition was made to sell those lands. This Arret as well as the other one of the same date, on the same subject, relating to the Ccnsitaires, have been confirmed by another Arret of 1732 which commanded the preceding ones to be put into eflect : the whole three were enforced, they never fell into disuse, and were part and parcel of our laws at the time c die passing of the Seigniorial Act of 1854. 33 rted in their titles ; these (diarizes and reservations l)eing ille<^al, the Seii,'niors have noclaiiu for an indemnity in consetpience of their suppression. With respect to tlii! amount of those dues, no hiw having yet established that amount, tiic Seigniors were allowed to impose sucli dues as the Ccnsilaires agreed to, and whatever might be tlie amount of thos«! dues, they have a right to be fully incU'nmifled for them. These arc public laws, [il'ordre public^) and the Ccnsi- laii'c by derogating fromllunn in favor of the Seignior, could not confer upon him, contrary to public interest, rights which were prohibited by those laws, and for tlie loss of which the Seignior claims an indemnity, to be paid partly by the Country. SECOND DIVISION. NATURE AND EXTENT OF THE RIGHT OF BANALITY. This second division may be subdivided in the following manner : 1. At the time of the firs! ottlement of the country, what was the character of the banality possessed by the Seigniors, was this banality legal and was it the result of law or cus- tom, or was.it merely conventional, and did it result from the titles ? 2. Did this right subsequently change its character, and has it since then become obligatory, independently of any agreements between the parties ; at what period and by |.i| V -£3 „ J, , „. M ^vhat means was this change effected .'' •'!! % S4d 3. According to the law of Ihe country such as it existed at the time of the passing of tlie Seigniorial Act of 1854, what was the extent of the right of banality, what was the (juantity and quality of the grain wiiich the Ccnsitaire was l)()und to have ground at the banal mill belonging to \\\< Seignior, was it only the wheat which had been grown upon his land, and which was necessary for the use of his family, or was it every kind of grain which the Censiiairc umst have ground, whether the same was necessary for the use of his family or not ? 4. Did the right oibanalite consist solely in obliging the (Jensitaire to carry his grain to be ground at the banal mill, or did it also go so far as to prevent the building of all l;inds of flour mills, within the extent of the banalile, with- out the consent of tlie Seignior, and to cause the demoli- tion of those which had uuen built for that jmrpose ? 5. Was this privilege of preventing the building and causing the demolition of such mills, uierely an accessory, a protection which the law granted the Seignior, in order te I'acilitate the execution of his principal right of obliginsi his Ccusitaircs to have their grain ground at his banai mill, tnd as sucii accessory, should it be set aside with tlie other ])rivilege plenojure and without any indemnity ; or was it a separate and distinct right from the other one which did }iot necessarily disapi)ear with the other, and for the loss of which the Seigniors consequently may exact an in- demnity ? G. If the Seigniors had a right to prevent the building of any mills as above stated, was it by virtue of the right of banalile and independently of the ownership which they might have in the waters within their Seigniories ? § I. At the time of the settlement of Canada, the Seigniors ])Ossessed the right of banalile throughout France. In certain provinces this right existed by virtue of the law and of the customs, independently of any private agreement between I- I, I with- ing ol / 35 d the parties ; in otlicr provinces, the right of banalite was looked upon as a mere servitude, whicii, like all others, could not be acquired unless by virtue of a title. For the first, the right oi banalite was legal and customary ; for the latter, it was merely conventional. The custom of Paris being included in the latter class, it contained for that purpose a particular clause in the 71st article, which declares, in express terms, " that the Seignior cannot oblige his tenant to go to the banal mill or oven, unless liis title binds him to do so, or that there be an acknowledge- ment of long standing to that effect. We have already seen that the custom of Paris was introduced into the country as well as the Common law, from the time of its first settle- ment, and the article relating to the banalite having been introduced as well as the others, had the effect of law so long as it was not changed. Therefore at first, the right of hanalite was merely conventional, and continued so during a long period of time, when we find that that obligation was imposed upon the Censilaires in almost every, or in all the deeds of concessions up to the year 1686, when an Arrf^t was passed which altered the law in that respect. It is true that we find an Arr^t of the 1st July, 1675, relating to the right of Z>a«a^i7« ; but that Arret, instead of altering the law in that respect, rather confirms what has been said, that at the period in question the right of hanalite was still conventional ; at the same time that it de- clares that windmills shall bo considered as banal mills, it states that those persons only shall be held to carry their grain to them to be ground, who may have obliged them- selves to do so by their titles. Therefore in answer to the first question I state that, at first, the right oi banalite in this country was neither legal nor customary, but was purely conventional, and only affect- ed those persons who had subjected themselves to it by their titles. i^ -IH'I ,i I f 36 d § II. Previous to 1686, the Arrets made relative to the right of banalite, were only with a view of settling the diilicuhies which had arisen between the Seimiiors and the Censitaircs as to the fulfilment of the agreements entered into on that subject between them by virtue of their deeds. The Arret of 1686 (4th June,) made an alteration in this order of tilings ; up to tiiis period the right of banalile was conventional according io the custom of Paris, but the Arret in question rendered it legal and obligatory both for the Seignior and the Censitaire, independently of all condi- tions and stipulations between them. By this^rre/every seignior was bound to have banal mills built in his Seigniory within one year, in default whereof any individual had a right to build such mills, and he ac- quired, by that means, the right of banalile. The right of banalile granted in the latter case, to the ex- clusion of the Seignior, can be nothing more than the same right which belonged to the Seignior in the case where he should liimself have built the said mills, which proves that he did possess the right oibarMlile when he had built the mills which were required. It would however be absurd to oblige the Seignior to incur heavy expenses in building mills, without at the same time obliging the inhabitants to conform to the obligations of banalile. Consequently I look upon the edict of 1686 as a modifica- tion of the law such as it had existed up to that time, by obliging the Seigniors to build mills, and the Censilaires to conform to the right of banalile. A number of judgments subsequently rendered in this country, confirm this interpretation of the Arret of 1686 and lead me to believe that from the time of its promulga- tion, the right of banalile became legalised and was law in of by lo nij! 31 d ;ill the Seigniories (27tl) May, 1716, Cugnet 36— lOlli July, 17:28, Cugnet 00— 10th July, 1728, Cugnet 51— ISlli Febru- ary, 1731, Cugnet 58— lOtii March, 1734, Cugnet 65— 23rd June, 1736, Cugnet 69— nth July, 1717— Cugnet 74. §111. The third question goes to ascertain : 1. If wheat was the only grain which a tenant, subject to banalite, is bound to have ground at tlie banal mill ; 2. If all the grain ffrown witiiin the banalite whether consumed within it or not, are subject to the banalite ; 3. If the grain purchas- ed beyond the limits of the banalite and brought into it for use is subject to banalite ? With reference to the first point, all the writers in France are not of the same opinion ; some of them pretend, with the Nouveau Dcnizart,\o. banalite, No. 9, vol 3, p. 148, "that " wheat is not the only grain subject to banalite, but that all " other kinds of grain are subject to it." This opinion ap |)cars to me to be more in conformity with reason and with the principles upon which the rights oibanalite are based, if it be true that it arose out of the obligation, either expressed or understood, thai the Censitaire should indemnify his Seig- nior, who had constructed a mill, for the expenses incurred by him for such building, and for those which the Seignior must incur to keep the mill in repair. We see no reason in this proposition to make a distinctior between wheat pro- perly so called, and other grain such as barley, oats and Indian corn, and other kinds which it is necessary to have ground, and which in fact the Censitaire gets ground for the use of his family, within the extent of the Seigniory. The Sei- gnior having gone to the cx])ense of putting his mill in a fit state to grind that grain, should, according to my mind, have the preference over all other mill owners, in order that iie should be indemnified. ' u I ; 1 ' m This extension of the right oibanalite, according to certain nuthors in France, appears to have been adopted in Canada, ., ( 3Sd if we can judge by the different Arrets, ordinances, and judgments rendered relative to that subject by the tribunals of the country, in the greatest number of which, no distinc- tion is made between wheat and any other grain, which should all, it appears to me, be taken to the banal mill to be ground. I say the greatest number, because it must be imderstood that there are some ^rrc^/5 or judgments in which mention is only made of wheat. It is certain that in those cases in which the Ccnsitaire has bound himself by his title, to have his grain or all his grain ground at the banal mill, it is very difficult to assert that he fulfils his obligations by taking his wheat alone to the mill ; and by having the remainder of the grain which he requires for the use of his family, ground elsewhere. Other authors in France limit the right to the obligation on the part of the Ccnsitaire of having his wheat alone ground, (see some of these authorities, 3 Lefebvre 1G8, 173, 175, 174 ; 1 Grand Gout : 1031 — Rousseau DeLacombe : vo. ba- nalite, No. 2, p. 67) I do not find any one of them more positive on this subject than the Nouveau Denizart already cited. Sometimes the authors mention wheat, at other times they mention grain. The fact is that in France, it was only wheat which was generally ground. If any other Jvinds of grain were ground, it was such a rare occurrence, that it was not thought of sufficient imjiortance to be men- tioned while writing on this subject. Upon the whole I am inclined to believe that the right of banalite included not only wheat, but all other kinds of grain. The right of banalite is a personal right ; consequently it is not because grain has been grown within the limits of the 39 d * Seigniory, that it sliould be subject to the right of banalile, bill because it was to be made use of within the Seigniory. Consequently the grain grown within the limits of the country subject to tiie right of banalile by a person who docs not reside there, may be ground where he pleases. 8 Pothier, 176, — " If I possess grain out of the limits of " the banalile where I reside, I may have it ground else- " where and bring the flour produced therefrom to my own " house." The tenant who purchases wheat elsewhere than within the limits of the Seigniory, may also cause the said wheat to be ground elsewhere, and carry the flour home without violating any of the rights of banalile ( I Freminville^ Principes dcs fiefs, 143 ; Lacombc, 67 ; 1. H. de Pamey, 191.) In answer to the third question, I am of opinion thai not wheat alone but all kinds of grain, are subject to the right of banalile ; that the CensHaire is only bound to cause the grain which he requires for the use of his family to be ground, and that all the grain grown within the banalile is not subject to that right ; that what he sells elsewhere in Hour may also be ground elsewhere ; that what he purchases elsewhere may also be ground elsewhere, although the flour may be consumed within the Seigniory ; that the grain purchased elsewhere and brought into the Seig- niory must be ground within its limits. [V. This question should be answered in the aflirmative, and I do not hesitate to say that from all the authorities which can be consulted on the subject, the right of banalile in France included that of preventing the building of any other mills within the limits of the banalile. This result of the right of banalile did exist and was acknowledged without any difficulty, botli in the provinces where the right was legal and customary, and in those where it was only conventional. With reference to this t ' ii m p:^ '. 1 40 d raattcr, it is well to remark here, that although the origin of those two kinds of Z>a/2a/«7e was diflerent, still the effect of both was the same, whether it was legal or only conven- tional ; unless some particular derogation had been stipulat- ed in the title which established it. {Lacombe, banalile, 68 ; Duplessis, fiefs, GO ; 2 Rept. banalite, 112; I. H. de Pansey, 89 ; :i Dcspcisscs, No. 5, p. 296; S Fotltier, 174 ; Carondas sur Paris, Art 1.) Our law, in that respect, is the same as it is in France ; all the authorities cited there are applicable hero. The consequence is that in this country as well as there, the Seignior has a right to prevent the building of all mills within his Seigniory, and to cause the demolition of those which may be built without his consent. § V. This fifth question is of great importance ; it causes the necessity of examining the pretension which is generally setup against the Seigniors, by saying : " Admitting that " the right of Z'rtwa/iVe includes the right of preventing the " erection or causing the demolition of mills erected within " iheyZc/i- without the consent of the Seignior; this right is '' only an accessory of the principal right, and only pro- tects the hanalite ; and as this banalite has been abolished, any accessory to it falls with it ; being nothing by itself, the suppression of it cannot be a reason for paying an indemnity. In order to add more weight to this proposition, this privi- lege of the Seignior has been compared to the right of re/ra?7 v\,^hich as an accessory of the right of lods et venfes, and as being granted to the Seignior in order to protect him from fraud, must have become extinct at the time the lods et rentes were done away with, and was abolished without any indemnity. This proposition appears to me to be unjust and false in itself and the reasons upon which it is b ased ajipear erroneous. 41 d As to the comparison made witli the right oi' rciratf, I must say that the Legislature itself has seen a diflerenee between those two rights, since it has thought proj)er expressly to sup- press the rctrait, without any indemnity, wliereas nothing at all has been said with reference to the right of banalite. I must add that I have some doubt as to the justice of ihat decision of the Legislature, and as to the question whetlier that decision is quite in accordance with the de- clarations contained in the Seigniorial Law, that no indivi- dual can be deprived of his rights without being indemnilicd. ,1 ; The right of rctrait which really owes its origin to the cause already mentioned, was, notwithstanding that, a lucrative right, which the Seignior could make use of for his own benefit, or could make over for a certain con- sideration to a third party, who could then exercise it in his name. It was an odious right, it had been abused. of ; and it became necessary to abolish it ; but as it was acknowledged l)y and founded upon law, was it just to do away with it without paying an indemnity ? For my part I doubt it. It is with all due deference that I make these reflections, and merely to come to the conclusion that with reference to the privilege now under consideration (that of allowing or prohibiting the building of mills,) that privilege has in no wise been suppressed. The law has abolished the right of banalite, and the privilege in question, being attached to it, arising out of it and forming part of it, cannot exist without it ; but if this consequence, this portion of the right o{ banalite, was of itself a lucrative right by which the Seignior could benefit, could it be set aside without paying any indemnity ; that is the question now before us. •' i All the authors agree in stating that the Seignior being vested with the right of preventing the building of mills within his Seigniory, it follows as a natural consequence ■»*' 42(1 of llie hanalilc that the person who possesses the right of banalitc^ ])osHesses also by law the right of causing the de- molition. I am inclined to believe that the reason which gave rise to this privilege, was to prevent frauds, and to assist the Seignior in enforcing his principal privilege, whicii was to oblige the Censitaire to come to his mill. But let the origin of ihat right l)e what it may, it nevertheless existed as a distinct portion of the banalile ; it was in itself a lucrative privilege. The Seignior could sell his rights, and acquire, by such sale, profit which no person has u right to call him to account for, inasmuch as he sold only what was his own, and what no person could oblige him to dispose of. Ifyoudoaway with the banalite^ you de- prive him of that source of revenue ; and I think that can- not be done away with without some indemnity. Whether this indemnity be granted to him as a part of the principal right, or only as forming a distinct branch of it, it is a matter of indifference, but in the amount to be paid him in conse- quence of the suppression of the banalite^ the right of which we have spoken should be taken into consideration. § VI. Theprivilege possessed by the Seignior of prevent- ing the building of mills within his Seigniory, belonged to him by virtue of his right of banalile and independently of the proprietorship which he might have over the w^aters of his Seigniory, since the erection of wind or steam mills, would have been a violation of his privilege, just as well as mills driven by water power. THIRD DIVISION. Proprietorship of rivers and running waters, both navigable and unnavigable. Of all the subjects submitted for the consideration of the Court, there are perhaps none of greater importance than the one which forms the subject matter of this division, and without doubt it is the one which presents the greatest diili- culty, uncertainty and difference of opinion, and it may for 43 d the present purpose be subdivided into two principal que?- tions. The first one i.s what were the ri<^ht8 of the Seigniors over navigable rivers and streams, at the lime of the aboli- tion ol' the seigniorial tenure in this province. The second one is to whom the non-navigable rivers and ilrcams belonged, at the same period. I. The entire doctrine relative to the ownership of naviga- ble rivers will be found summed up in the following passage of Hoularic, in his Institutes^ at page 125, where he says : " IMost decidedly the navigable rivers belong to the King ; " liiey form a portion of the Domain of the Crown, with the " exception of the rights of fishing, of building mills, " placing ferries, and other rights which private indivi- " duals may legally possess by virtue of their titles." According to this doctrine, which is really the true one and which cannot be contested, the Seigniors have no rights over such rivers ; in the same manner as all other individu- als, they can exercise such rights as may have been granted to them by the Sovereign, by virtue of special titles, and 1^ which are not contrary to the custom of navigation and trade, and to the general interest of the State. We must look into those titles and into the possession which corro- borates such titles, in order to be able to judge of the extent and nature of those rights which, being a deroga- tion to the common law, must be kept within the terms of the charters by which they were established. If those rights, by their constitution, partook of the Seigni- orial or feudal tenure, and that the law of 1854 had the ef- I feet of abrogating or setting them aside, such suppression might give room to the payment of an indemnity. If on the eontrary, the grant made of those rights, contains nothing of :' H- ^:i)M [ ' ! ili 44 d a S(jii,'nioriiil or feudal nature, in such a case, the law of IH51 (1i){;h not ixiXcri them in the least, they do not eonio under the class of those upon whicli this Court is called upon to decide, and conseciuently it is useless to mention thcni here. H. The second question relating to non-navigable rivers, reduced to its most simple meaning, and put in a practical manner, is made in order to ascertain : Wliel her the Seigniors or the Censilaircs of the country were th(! proprietors of the non-navigable and non-floatable rivers and streams at the time of the passing of the Seig- niorial Act of 1854. In order the more easily to arrive at a solution of tlu!« (luestion, I shall, in the first place, state some projjositioni? which appear to me to be incontestable and which I shiill consider as being admitted, that is to say, that these river? form a portion of the private domain and may belong to j)ri- vate individuals ; and that for such reason tliey arc subject to the control of the civil laws of the country ; that, in Canada we have no particular law relative to this matter, and there- fore that this question must be decided according to the French laws in force in this country in 1854 ; that even in France there never was any special law to settle this diffi- culty before 1789, at which time the abolition of the feudal and Seigniorial rights and of everything arising out of them was decided upon ; that in order to come to a solution of the question before us, it is necessary to have recourse to the laws and jurisprudence in force in France before the period of 1789, and to the decisions of the french courts and of our provincial courts. This was a question relative to which much difference of opinion existed in France ; nevertheless the conflict wa? not between the Seigniors and the Ccnsitaires ; on the con- trary, almost all the authors who have written on the sub- and almost all the Arrets attest that, in fact, ject, 45(1 the ownership of tho rivers and non-navirs (lid not belong to the Cfnsitnirrs or riparian proprie- tors, but i,'ene rally to the feudal Seiijfnior.sor to the; ///.v/ZcvVvs ; I s!w iJ^ciicra//i/ because some authors, the first of whom is P()thi(!r, say that " The rivers belong to those persons who have a right to them by virtue of their titles or by possession, and who can call thems(;lves the j)roprietors of tlieiri within the limits mentioned in their titles or of which they have possession. This doctrine being perfectly correct so long as it is pro- perly understood, does not in the least contradict the one which is generally admitted, that this ownership is vested, by the common law, in the feudal Seigniors or jiisli- ciers. This passage of Pothier states nothing more, in substance, than that those rivers, forming part of the Do- maittr pdve^ may belong to the persons who should have obtained titles from the proprietors, and that those indivi- duals acquire all the rights over them, that is to say those rights only which may be mentioned in their titles. Conse- quently unless there be a title or a possession during a long period which leads to the presumption of the existence of such title, no individual possesses any right over those rivers which, as Pothier says in the same place, " belong " to those Seigniors justiciers within whose territory they " are, when they do not belong to the individual proprietors.''' In other words it means that the Seigniors justiciers are the proprietors of the non-navigable rivers which they have not themselves disposed of, or which may not have been grant- ed to other parties by the Sovereign, to whom they all ori- ginally belonged, and who had every right to dispose of them to whom and upon such terms as he thought proper, inas- much as he possessed the same right with respect to the navigable rivers. What has been said above was in order to show that in g France the general opinion and acknowledged jurispru- m. '•'I % 4Qd \nndrnvx) vvcrn that the non-iiiivigiibU! rivers did not hcloni; fif'jHojin'cU) ihc Ccnsitaires who li\'i:d aUnv^ the bank.s of ihose rivers, but that by virtue of tiie eommon law {droii annmun) thi^y were the properly ol" the Seigniors, either a« possessors of the/«/, or as exercising jurisdiction, {di'oil ilt justice.) I shall not at present cite, in support of this statement, the opiii.ons of the authors, or tlie ilrn'^s upon which it i« l)ased ; the counsel of the parties cited them, and they will he found in the statements which have been laid l)efore iIk Court ; I shall mt^rely refer to them as I feel satisfied iliat any one wiio shall look into them, must finally come ti the couclusion that at the lime of the abolition of the feudal right in P^rance, in 17H9, the rivers in question were all really in the possession of the Seigniors, and that tin; pro- j)rietors of the land through which they ran laid no cliiim to them. The only point upon which there was a ditrerpnci of opinion was the one which has been already rncmlioncd. ihat is to say, whetlier it was a right coming from tin //// or from the right of jurisdiction, which wo may ascertain by referring to the following authorities : " Under the feudal system, (says Henrion de Pansf v. '■'■ Competence des Juges de paix, page 233,) the small rivers " belonged to the Seigniors, they were the pro[)rietor8 of " them and had control over them, consequently no person " had a right to dispose of the waters belonging to the Sciij- " niors, unless such person had a concession from them." " The best possible reason for stating that the bed of tlic " non-navigable rivers was not transferred to the riparian " proprietors by any enactment of our law, arises out ui " the numerous efforts which have been made to introduce " into our code of laws, such an enactment which it is " impossible to find in it." (3 Foucard, Droit public ct ad- ministratif, page 422.) II I { , 47 d " AnotluT rulo was followrd in Franco ; tlicso rivc'r«t •' (tlial is llio non-niivijjfiihlc rivois) holoni^cd in almost every " locality tollio Seignior Justicier as an inclcninifK'atioii tor " ilii> (liities imposed upon him in the ndministration of '* juslK'C." (Troj)lon^', pres(;ri|)tion, No. Ii5.) Tlic above authorities and a nutnber of otlu.-rs which conld be cited, provt; this i'lct, that so loni,' as lh<^ feudal sysitctn existed in France, the riparian proi)rietors, did not lor that reason have the ownership of the non-nuvigablc rivers. If such be the case, and if it be true, which cannot be (|(Mibted, that with respect to the non-navi«^able rivers, our position in the year 1854, is the same as it was in France Ml the year 1789, it would be useless to examine further in- to the subject, since w(; mii^ht, aj)j)arcntly, say that in this country the/rV/and the jurisdiction are almost in every (;ase united in the one person, consc(iucntly it becomes a iiiiitti^'r of slii^ht importance l\y virtue of which of those two litlcs the rivers in (jucstion bcloHi^ to the Seignior; so far ;is the latter is concerned, the result is the same. With reference to the Censttaire, he either has a title or ho has none ; if he has a title together with the possession his right will be acknowledged, and he obtains what he demands ; if he has no title, his demand is dismissed, and in such a case, he can have no interest in ascertaining who will possess what he knows does not belong to himself. It would consequently appear that we miglit at once set the Cmsitairc aside, declare his claim to those waters unfound- t;d, and adjudge them to the seignior, without in the least trying to ascertain if they are to belong to him as a jief or by virtue of jurisdiction. Such however is not the case, for according to the view taken of the subject by several persons, the question of ascertaining whether the rivers belonged to the Seigniors or to the Ctnsitaires in 1854, depends entirely upon the answer '^t^-! '^ ■ I t ' i; t;,4 ,:« 48 c/ given to this other one " was the ownership which the " Seigniors had or might have had in those rivers, a right " acquired as owners of the ficf^ or was it a right acquired " by jurisdiction." According to those who hold this opinion, it would be necessary, in order that the Censilaircs should gain their point, to decide in favor of the feudality, and to declare that it is not a right acquired by jurisdiction. Those persons who support the inteiest of the Ccmilairca in this respect, maintain that these latter have a right to those rivers, because the riglit was transmitted to them through tlie feudal Seigniors to whom it belonged, while it is stated in opposition to this pretension that as the feudal Seigniors never possessed that right themselves, they could not transmit it to the Censilaires. Let us now briefly explain these two theories, and then examine into the reasons why one should be preferred to tlie other. Those persons who look upon the right in question as a dependent part of the fief^ say that the Sovereign, as absolute masterof everything that he had not alienated, previous to the concession which he makes of the fief watered by a non-navigable river, was the proprietor of such river as well as of the lands in the fief-, that he could hav'e reserved them for himself if he had thought proper ; but as those rivers might fall into the private domain, there was nothing to prevent him from alienating them ; moreover he was ex- pected to have disposed of them with the land through which ihey ran, unless there was an express stipulation to the contrary ; and consequently whenever the rivers and streams were not expressly excepted in the deed of concession of a Jief.y they passed into the possession of the grantee, as a portion of the fief. In this theory no distinction is made between those rivers which merely flow along the border of the fief and !J 49 d tlio-c u'liicli run ihro I'^li it ; altlioiigli ili,).s(> rivers wliicli /low al( n ■ t i!' Inmli r of t e /ic'. arc poiiik'd out as llic houiiJary ol'liii' (•(iiifcssion, still tlii'v Ion 11 a porliuii of it as well as the (»lii('r>. Conseqiienty, accordin;^' to this (iocti'inc, the pro- pri 'lor ol a //>/" possesses, as proprietor, every rii^lit of properly over the ii()n-iiavi^al)lc; rivers and slreanis, \\ liieli it is |)o>slble lor liiiii lo have, unless there be an express stipiilalioii to the contrary. 'r;ii\ini( this principle lor a basis and drawini)^ the conclu- sions troiii it, those parlies who have iidopled it add : " since the Seis^nior of tliey/r/' has becoino the proprietor of llie iioii-navigable streams which run llu'ough it or alon^ its bolder, as being a portion ol it, irierely because no reser- vation or exception was made of them, it must follow that when that same Seignior clis|)oses of a portion of his fief cillier l)y subinfeudation or by acffusinii'iil^ without at the >aiiie time, reserving or excepting those streams, he makes llieiu over to the new proprietor in the same manner as they were made over to himsell'personally by virtue of his title, as a perlion of the property alienated. The same rule which was applicable lo himself with respect to his dominant Seignior, may 1)0 invoked against him by his grantee, who shall ac- (juire the waters in the same manner and for the same reason lliat he had acquired them, under like circumstances, from his dominant Seignior." They come to the conclusion from this, that at the time of ihe i)assing of the Seigniorial Act of 1854, the Seigniors of //cA', in this country, were only proprietors of the non-navi- 2;able waters which ran througli or alongside of the lands which ihey had not disposed of, and which had remained in their possession eitlier as a part of the domain, or be- cause they had not been conceded ; but that iney had lost all right of property in those waters, upon all the lands which they had disposed of by subinfeudation or by accensemeiit. According to this system we perceive that il was through iwi i I' r 11 Mi I i ^ ' . 1^ M 50 d the Seigniors {liat tlir waters in question eamc totlie riparian proprietors and tliiit it was neei-ssary that tliey shoiiltl iirst have ljeh)nged to the Seigniors in order to eome into the pos- session of the tenants. Let us now look al the doctrine of those who say that the riglit of ))roperty in the waters is derived from the right ot jurisdiction, and \\ ho give it to the jnslicicr to the j)reiadicc of the Seignior of the fief. These latter, starling from the principle that the /?p/' and the right of jurisdiction have nothing in common l^etween them, separate the fief and the right of jurisdiction into two distinct and difl'erent rights, existing independently ol each other, which may belong to two diflercnt parties, may be disposed of separately, and which confer upon the per- sons to whom they may belong advantages which may ])e of quite a ditlerent nature and impose o])ligations quite dis- simihir. The Sovereign who, in the origin, is the possessor of both those rights, may grant one of them and retain tlip other; if he grants the Jief without including the right ol jurisdiction in the grant, the latter remains with him ; in such a case the grantee becomes a feudal Seignior, but lie is not a juslicicr. If both are included in the grant, and there is nothing to prevent it, the grantee then unites both qua- lities in his own person, he is both feudal Seignior and Sei- gnior JHslicier. The two however do not become one and the same, they remain separate, there are certain rights which he can exercise only in the one capacity, and of which he becomes deprived the moment he loses it. Finally there are in this case, in the eyes of the law two separate and dis- tinct beings, so much so that the Seignior may, by the alien- ation of the fief lose his feudal rights and remain justidcr^ and this same rule would apply equally well the other way. According to this doctrine, the feudal Seignior becomes!, as such, the proprietor of the soil, of the land composing his I pose unles bid I ii, xit he and 1 (jna- d St'J- md the which icii he there ddis- alieii- sticier^ other mg his ^?o/', but ho has no right to the owncrsliip of the running waters which may be in the //c/', wliether they are naviga- ble or not. They botii n'(|uire to be looked after with par- ticuhir care, in the public interest, and to be governiMl by rules and regulations emanating from public authority, of which the Sovereign is the fountain liead, and for that pur- pose they should remain under his control and not leave it unless upon the express condition and with the firm assu- rance that those important duties, with which he was charg- ed, will be pro])er]y fullilled. With respect to those navi- ga])le rivers intended for the use of the country in general, and which are the means of comnmnication between the dillerent provinces and even between dilFerent States, they have remained under the immediate control of the King, who has retained the right of exeicising in person jurisdiction over them, and of making the necessary regulations for that purpose ; and in order that he might meet with no difli- eulties in the accom{)lishment of that duty, it has been his will to reserve for himself the exclusive ownership of those rivers, and he has retained the exclusive privilege of j)er- sonall}'' granting such rights which he should think [)roper and compatible with the public interest. It is particularly for the reasons just given that the navi- gable rivers belong to the King and form a portion of his domain ; and that is why he receives the dues and emolu- ments arising from them, in order to be able to defray the costs and expenses of maintaining order upon them. With respect to the non-navigable rivers, the utility and importance of wdiich arc much less, when compared with the others, and the use of wdiich is much more limited, it has been thought that the care of maintaining order and pro- per regulations on them was not of such great importance, but that the King might free himself from that duty by de- legating other persons to fulfd it. That is exactly what was done, when the Seigniorial jurisdiction extended over those fivers, and the Seignior justicicr was empowered to exer- cise the same authority over the non-navigable rivers, per- .= ., l^\ :,,: ;::'^' Mi 52 d .sonully and in liis own nami', as the Kin^ rxcroisecl ; h bcin^ nnivtTsally adniiUcd that llic grant of siijjcrior jiiiis- dic'tion {JkiiiIc justice) conferred upon llic person, to whom it was made, jurisdiction over all tiie n(>a-navit,fable rivens and runnini^- streams witliin his territory, and obliged him to maintain order thereon at his own cost and expense, and to administer the hiw indepeiKU'ntiy of and without reference to the Royal Tribunals, which t)nly had jiu'isdiciion over the navigable rivers, but not over such as were not navigable. From this doctrine we come to the conclusion, that the ownership and control of the non-navigable streams, was by (!ommon law, one of the dependencies of the suj)erioF jiu-isdiction, {liaiite justice) and belonged to the Seigniors /in/ilsjiis/.iciers to tlie exclusion of the feudal Seignior, who had no right whatever over those rivers, any more than other individuals, his fief being limited to the soil and not extending to the waters. Any grant which he might give of a portion of his land, conld not empower the Ccnsitairc to exercise rights over those waters which he, as grantor, did not possess, himself: consequently neither the feudal Seig- nior nor the Ccnsi/dire did or could hold any rights over tii(> waters wliich, in every case, belonged, by common ];iw, to the Seigniors having superior jurisdiction, when si:eh superior jurisdiction had been conferred by the Sover- eign ; and which rights remained the property of the King in all cases where he had retained that jurisdiction. h is didicult to make a choice between those two sys- tems, wliich are so different in their results; they are and may both be supported by good and plausible reasons : they are both advocated by authors whose talents it is im- possible to call into question : nevertheless a choice has tc l)e made, and after serious consideration I have adopted that theoiy which maintains, thai the ownership to the waters in question is derived from the right of jurisdic- tion. I have nothing more to do at present, than to give the reasons which induce mc to decide in this manner. 5;3 d In the first piano, I musl sliitc thai I am very iniu-li luis- takcn, iC the greatest nunihcr and the best t)f the French anthorities vi])on tliis subjeet, (I mean those authors who have written, niu] \he .Irrrfs whicli were passed previous to 1789,) are not in favor of the doetrin(! which I support. To the long list given by Mr. Championniere, the greatest adversary of the Seigniors, and the most xealous and able advocate of the riparian pro])rietors, we may adtl the names of several authors who are quite as res|)ectable and quite as celebrated as those named by him. lie has omitted men- tioning them, and the omission will appear the more surpris- ing, when their names are given. I shall give ths names only of some of those Juris-consults v>hom Mr. Chamjuonniere has not deigned to mention, commencing with Boutaric, in his Traite dm Fiefs, where he says : " At conunon law and in the customs that are " silent on the subject, most certainly the Seignior j/fsfic/rr " alone has the right of allowing a mill to be built upon his " river," and he adds further on : " It is necessary to hold " a title for all the other haiKililes, but for the bamilitc of the " river, it is quite suliicient to be the Seignior with superior " jurisdiction over the land through which it passes." This author advances the same doctrine in his Institutes. {Scrrrs, histiltitions de droil ; Lefeubrc de Lfiplanc/ic, Traite di( Do- maine ; Despeisses ; Renanldon, Diet, drs Fiefs ; RoHSsean de Lacombe, vo. fleuve; Jacquet, Traite des J// slices ; Pocfj/n't, Regies du Droit FraiK^ois ; Pocqwt, Traite des Fiefs ; Ancien Rept.vo. Riviere et vo. Pec/ie.) I shall now stop, although it would be easy for me to add to this list the names t)f a num- ber of authors who have been forgotten by Mr. Cham- pionniere. The opinions advanced in relation to this su])ject by all those writers are confirmed by, or are founded upon a num- ber o{ Arrets rendered in the different Provinces of France, both in those governed by the civil law, and in those which were governed by Customs. Almost all those Arrets acknow- ■:$: 54(1 ledgo tlic Seigniors havls-jnslicicrs to be ihe proprietors of the non-navigable riv(!r8, with the exclusive! right of fishing in them or allowing others to fish in them, of building mills or foctories, and allowingor preventing the building of them One of these Arrets may be seen, among a great number of others, in the II vol. of 3Iarcc!iaf, Droits honor ifiq ii cs : page 99. It cannot be denied, and I am far from doing so myself, that there are Arrets also, where the Seigniors olficfs appear in that capacity, as tlie proprietors oi the rivers fth Without positively stating it, and without having any positive infor- mation authorising me to make the assertion, I must say however that in those cases, it might have happened that tlie Seigniors of the Fief were nUo J ustic/'ers (and this happened frequently) and inasmuch as it did not matter in which capa- city they acted, they might have taken the title of feudal Seig- nior, instead of that oi justicicr. But I can state that I have not found one Arret, where a decision has been come to between the feudal Seignior and the Seignior jiislicier, in any case where the question has arisen directly between them. But let us admit, which is doing a great deal, thai the authorities and the Arrets are both equal in standing and respectability on both sides of the question, it appears to me that that equality should have no weight in the face of the solemn declarations contained in \\\c Arret of the King of France, of the 22d November. 1G95, which api)lies to the entire Kingdom. This Arret acknowledged and made known, in the fullest manner, that all the non-navigable waters belonged to the Seigniors within whose superior jurisdiction they were, just as those same waters belonged to the King, when they were within the limits of thosi^ superior jurisdictions of which he himself had remained in possession as proprietor. de This Arret appears to me to be very important and ver) cisive. i' thai King ies to made able, lerior ig^ tliosi- )d in very 55 d Tlio importance of it consists more particularly in this, lliat, by this general law, which after all was merely de- claratory, the King proclaims, as r.t/.v///?g- /tar, that the ownership of the non-navigablt; rivers is one of the de))end- (Micies of the Superior jurisdiction. The King thereby claims for himself the ownership of the waters within the limits of the superior jurisdictions which belong to him, and recognizes to the Seigniors the same undoubted rights within iheir own jurisdictions. Undertliese circumstances, this Arret wonld be sullicient 10 maintain mc; in my opinion in favor of the Seigniors hauls jusliricrs. But I have a still stronger reason for adopting this o[)inion and holding toil, which is the diHictulty of reconciling the contrary doctrine with the historical facts, upon this subject, with which we are acquainted. We have already seen, that it is a fact beyond dispute, that, at the time of the abolition of the feudal rights and of the Seigniorial jurisdiction in France, in the year 1789, all or nearly all the ncn-navigable waters were in the posses- sion either of the feudal Seigniors or of the justicicrs^ and that such was the case long before that period. This fact is proved by all the modern authors who have treated this sub- ject, and in addition to those already mentioned, more particularly, by Mr. Rives, in his " Traitc de la propriele dcs Rivin., he can only have retained it so long as he retained the lands ; from the moment he granted the land, that ownership, as a matter of course, was transferred to the CcnsUcdrc, as a portion of the concession, and the consequence in su( h a case would be that the Censitaircs and not the Seigniors^ would have been generally found in possession of the non- navigable rivers running through the conceded lands. >1 d Such would bo tlio in{!vif!il)l(' (MMiscqiicnco, niiloss \vc sup- pose, and this is noitlior prclcudcd nor proved, nor is it pro- l);il)li', lliiit in (!very (;;is(' the Seii^mior rnudu a reservation ol tliosc waters in iiis own favo n the deeds of concession ; or unless we suppose again, which is hardly more |)robal)le, tiiat after transferring those rivers, the Seigniors should have accjuired them anew from the Censi aires, either by agrec'iuent or by prescription. Such suppositions as these nre (iilireiy gratuiloiis, and it wou'd be unreasonable to make them the basis of a theory upon such an imj)ortant subject as the one now before us. M Consequently from the fact of the possession by the Sei- gniors ol" the non-navigable waters, I have come to the con- clusion thai their ownershij) was not a privilege appertain- ing to the Fief ; for, it was not so, it would be necessary to suppose, which some persons have already done, that the proprietorship of those waters is transferred, as a matter of course, and without any express mention of the same being made, to the feudal Seignior, by means of the infeudation, but that that same ownership is not transferred to the Cen- nlairc Jjy the acceiisement. That is a doctrine which could not he received counsel for the Censifaircs, whose system is, by that means, shaken to its very foundation. I' ■ '111 III this theory I find the same difHculty in cxplainii g the fact of the possession by the Seigniors Jnsliciers, in those localities where they had such j)ossession. If the non-navi- gable waters be an apj)endage of the jurisdiction, there can b(Mio dilllculty ; the Seigniors /M,v/2t7e/'5 are in possession of them, because they have retained a right which always belonged to them ; so long as they had the right of jurisdic- tion, they had or they should have had the proprietorship and the possession of the non-navigable waters. But if they did not acquire that right as a portion of their jurisdiction, by what means could they have acquired it over such a dl m ■ T: -. ( 58^ lari^f cxtont of ttn'ritory, as ihut whicli tlit-y Imd possession of, lit IIk' time of the abolition of all those ri,i,'hts in 17M9. In nnswer lo that (piestion it is pretended that the oriiifin ol' that rii,'ht in the iiands of those Seigniors, is dne to frand and nsnrpation, which consisted in eliangini,', by nnjiist means, the right of jnrisdiction whieh they had over the rivers, and whieh no person contests, into a right of pro- perty which never legally belonged to them. This explanation does not appear satisfactory and is not founded upon any solid basis; fraud and usurpation may easily be employed in certain eases to the disadvantage of a few isolated individuals ; but they become (piite imprac- ticable, when used oj)enly and publicly against important interests and facts, which may sentubly alli^ct the most numerous class of the community. However this oroj-osition has been so freciucntly and so cleverly set aside by the best authors, that I shall not say anything more about It ; I will merely state again that the theory, which makes the ownership of the non-navigablo waters one of the dependencies of the Fiefs, presents diili- rultics which I find answered nowhere to my satisfaction. If oT> the contrary, we adopt the opposite theory, whieh makes that right a consequence, a dependency of the Su- j)erinr Jurisdiction, those difficulties disappear, or they are explained. In France, in 1789, the Censitaires were not in posses- sion of the non-navigable rivers ; nothing could be more simple and natural than that, inasmuch as they never had any right to them ; the feudal Seignior from whom alone this right could have been acquired, could not grant it, inasmuch as he did not hold it himself ; the concession must have been bounded by the river at which it abutted, without including that river, whicli belonged to another who 59 d Su- are K-ns the Soi^'nior /(rtw^ yV^ /cr fron whom wvw bound to obtain a titlo to the rivt;i , in prefer a claim to it an proprietors. ■'«' Censii ires lO be u to Ae(;or(lin,i( to this system, it \vas to bo ex^ ■cfefl il^dt the ^e'i'j^n'iors hd/ils-Jiisticicrs would have been found in posM-.ssion of the largast numberof those rivers ; and such was really the cajio; this wastlie natural conse(iuen<;e(jfllie laet,thatlhegrant of jurisdiction, while it obliged the Seigniors to maintain proper regulations upon the rivers of wliieh we are now speak- ing, at the same time it gave them iIk; ownership of those rivers, and granted them all IIk^ rights and privileges arising oiU of thai ownershi]), as an indemnity for the trouble and expenses they incurred. VVith respect to sucli of those rivers which belonged, at the time of the abolition of the feudal system in France, to the Seigniors oi Fiefs and were found in their possession, the matter may be explained, either by what has been already stated, that in those cases the rights of the i^/f/ and Jurisdiction, being united in the same person, it was useless to cn([uire upon which of those two titles the possession was founded ; or because that owner- ship had been acquired by the feudal Seigniors by prescrip- tion or olh(;rwisc, from the parlies who were the pro])rictors of it by virtue of special deeds of concession from the Crown ; or because having originally rec'ived the grant of the Fief together with the right of jurisdiction, they miglit have piuled with their right of jurisdiction, and reserved their rights over the rivers with the Fief wh'u-h they retained. But we may be tolc^ " Supposing your proposition to be correct for France, it cannot be correct for Canada. 1. Because, in this Country, the Superior Jurisdiction never was carried into eflbct by the Canadian Seigniors to whom it had been granted, so as to give them a right to the advantages and privileges arising from it. 2. Because admitting that, at a certain period, the Seig- niors had a right to avail themselves of the advantages and H:iii .1 •f n 1 in 60^/ privilrp;os of iIh' Superior .Inrisdiotioii, tlicy lost lliosc nd- V!mt:t;.^»'H afterwards, wlicti the Scitjuioriid Courts were w- pliiccd l)y other 'I'rihuiijds, jind when tlie Seiij[niorMy//.v//(7Vr.\' ct'used to continue in the exercise of their jiirisilietit)ii. To tile first of these objections, I will answer tlint tliere is no proof, and there is no authority, for stating that th Seig- niors y«.s7/r/V'/\v ever refused or ne^deeted to administer tliat justi(;e which they were l)oun(l to aduiinisier ; it is not at all established that they did not do so as much as waH necessa ry and m sueli a manner as was c()n- formable to the circumsiances under which the country was placed ; that, in tin; al)sence of such proof, the pre- sumption is that they did fulfil their duty ; moreover tliat this Court has no jurisdiction autliorisini^ it to decide upon sueli a question ; and if it had such jurisdiction, it would be n^icessary, in order to couk! to a decision, to have heard the interested parties, to have given them the means of shewing whether they had fulfilled their obligations fully and in a legal manner, or that the j)arties who were thus bound, had been exonerated from so doing by tlu; proper authorit whose duty it was to see to their proj)er fulfillment les. Will reference to this subject, we tnay here; mention, that it is a matter of notoriety which is recorded in history, that before the Cession of the country, the French Govermcnt, instead of 'J* insisting upon the fulfibnent, to their fidl extent, of the obli- gations of the/// ,v//r/Vr5', with r(!spect to the administration of Justice, on the contrary did all in its power to depreciat(> the Seigniorial Courts and render them unpopular, and to bring the suitors before the lioyal Courts, which were establisheil in ditfe rent parts of the country. .. t At the present time and under the present circumstances, it would be most unjust to declare that certain persons, who have not been and who could not be heard, have forfiMtcd rights of the greatest importance and value, upon a supposi- tion, which is perhaps unfounded, that about a century or Gl d mori' iJ^'o, ciTluin persons, who ('ons(<(|iu'iitly would Mol miiIKt l>V lilt' (Icoision, Iirul f.iilcd to riillll ohli^'iitioiis mid (liitit's, which hud Wv.n iinposfd upon iheiu and t'onliilcd to tilt'MI. It is a wi'll known fact, at the pivx'nt day, which no per- son conlrsls, that the superior jurisdiction was very rarely ad- niinist»;re(l in thiseonnlry hy the Sei;,'niorial jiid.i^'es, and that ihe otiier jurisdictions whicii had been i,'ranted to tlie Sei^'- niors, that is in(!an and inferior jurisdiction, were only ad- ministered in a very iiuperfecl manner. Hilt that ne^di^ence, if il can he called so, did not entail forleitiirt! or ahro^'ation of the jurisdiction, {iihno jinr) nor of the advantages and preroi,'atives attached to it. It would inost certainly havo heen ni'cessary for the authorities of thiit period to have adopted |)roeeedin,i,'s, and have had tho confiscation or abrogation of those rights declared in a legal maimer. Nothing of the kind took place. It is true that we do find exaiiiples, where abuses anii negligence in the adminis- tration of justice have been repi ssed and j)unished, but in uo place do wi' lind any deeis.on decdaring that the Seig- niors were deprived of the rights of jurisdiction, for having (ailed in the performance of their duties or for any other cause. From this, we arc bound to concdude that the Seig- niors performed the duties they were obliged to j)erforin, or that they were exonerated from performing them by the authorities havini; u riijht to take cojifni/.ance of the matter. To the second of these objections w^e answer, in the fust place, that the rights of jurisdiction granted to the Canadian Seigniors were never suppressed, revoked or abolished in a positive inannc^r or by any positive law. The Seigniorial Courts were only replaced by other tribunals which were found to be more convenient and more in conformity with the position of the country ; by that means, tiie Seig- •! K i, I I m I 62 6^ niovs were indirectly deprived of the exercise of llicir juris- diction, and they were exoneratiid from and even prevented from fulfilling tlieir obligations in that respect ; if the falillineni of that duty had been beneficial and j)rofilable to them, they lave rninU lemanded and olitained an i tne loss ttiey would have suflered involuntarily ; but they did not demand that indemnity, and the question now be- fore us is not to ascertain, if tliey would have had a right. but the question raised by the objection, which I am answering, is to ascertain if the lucrative advantages, al- taclu'd to the right of jurisdiction at the time the same was granted, but whicii do not form an inseparable portion of it, such as the right to the rivers and some others of the same kind, which although arising out of the right of jurisdiction, do not indispensably exist through the exercise of it, may, with a shadow of justice and reason be abolished, suppressed and lost, so far as the Seigniors are concerned, by tlio mere fact that the authorities had thought proper, without the consent and participiition, and j)robabIy against will of those same Seigniors, to put them under the im- possibility of fulfilling a duty, which had so many advan- taares attached to it. The emoluments arising out of tlie administration of justice, if there were any, disappeared a« a matter of necessity and were done away with by the sup- pression of the right of jurisdiction, but the other preroga- tives which owed their existence to it. and which could exist without it, could not be set aside at the same time. That doctrine, so reasonable and so just in itself, is the one we find mentioned in Rcnnuldon, Diet : des Fiefs, vo. rivieres, page 216, where he says : " But the Seignior, " who loses his right of jurisdiction, does not, for that reason, " lose the other rights which may appertain to it, such as epaves, islands, islets, alluvions, &c." " « If we were to act contrary to such a just rule, we would be doing worse than the Assemblee Constituante did in France, rl£;llt^ em;ui;i in thi' won hi ;uiy e( right. I am ?roga- M Jason ■I -J* 1 ;i I lid be ance. 63^/ <.n Angnst, 1789, when it abolished, in one instant and with- out any indenmification, all the Feudal and Seigniorial riifhts; there was in that case, at all events, an ordinance tMuanaling (Voni the Legislative power then in existence : in the present case, that formality even is wanting, since it would l)e attempted to eflectuate a spoliation by mere im- plication, without having received any order whatever I'rom any competent authority. I think, therelbre, that I have good reason for stating that if the grjMit of jurisdiction had the ellect of investing tiie Seigniors of the country with the ownership of the non-navi- (jabh" rivers and waters within the lindts of their jurisdic- tion, tht)se Seigniors could not, since then, have; lost that right aiiv more than the oilier lucrative privileges arising out of the jurisdiction, ]jy the mere suppression of the Seigniorial Cfturts, and tlial notwithstanding that suppression, their ri";hls have remained the same. Those are the principal reasons which have induced inc to adopt tlie theory, which 1 have just now explained in such an imperfect manner ; it is susceptible of being develop- ed at much greater length, which 1 have been imable to do for want of time ; but what I have said appears to me to be sntlicienl to establish : — 1. Tliat the navigable rivers belong to the State, but that private individuals, such as Seigniors and others, may ex- orcise such rights over them as may have been granted them by public authority, so long as they are not incompatible with the general interest. 2. That with respect to the non-navigable rivers and running streams, they were, in this country in the year 185 1, as they were in France, in 1789, an appendage of Superior Jurisdiction, and were the property of the Seigniors to whom that Jurisdiction had been granted. 3. That in the few cases where the Superior Jurisdiction **>la m 64 d wa.s not granted, the right to those rivers remained wilh the Sovereign, and was not transferred to the Seignior to wiioiri the ^-7^/ had been granted without the right of jurisdichoti. 4. That the Seignior of the Fief^ not having, in his ca|)aeitv of Seignior, any right to the waters in question, couhi not transfer them to his Ccnsitaires^ either in express terms or by subinfeudation or ncccnseincnt. 5. Lastly, that since the passing of the law of 1854, abolishing the Seigniorial rights, the Seigniors high J//s!i- r?"'V.v of the country, eiliier remain the proprietors of the rivers in (piestion, or they have a right to be indemnified, if they are deprived of them. OBSEllYATIONS OF THK 854, ■1 /tsU- p- tlie ■ d, if 1" HONORABLE ME. JUSTICE DAY. This Court is one of an (extraordinary character, and 1 must be permitted briefly to advert to the nature of the duties imposed upon it, and the peculiarity of the position which ;is Judges we occupy here. The object of tlu; statute under wliich we sit, as declared in its preamble is " To al)olish " all feudal rights in Lower Canada, whether bearing upon '■'■ the Censitaire or the Seignior, and to secure fair compen- " sation to the latter, for every lucrative right which is ilow " legally his, and which he will lose by such abolition." One of the chief diillcuhies in legislating upon the subject is indicated by the foregoing extrat : it consists in settling tli(! extent to wiiicli the rights claimed bv the Seigniors ouglit legally to be sustained. With a view to such settlement it is provided l)y the 16th section of the act that in order to avoid all errors as to matters of Law, the Attorney General shall frame such questions " as he shall deem best calculated " to decide the points of law, which will in his opinion " come under the consideration of the Commissioners, in " determining the value of the rights of the crown, of the " Seignior, and of the Censitaire," These question^^ with sucii others as may be submitted by the Seigniors and Cen- sitaives, the Judges are to take into consideration, and after having heard counsel upon them, but without previously re- •luiring any case or pleadings, which is f)rohibited by the 1 m; j*i' M 2 e statute, they are to render their decision or opinions, with reasons assigned, (niotivdes) ; and it is provided, tliat the de- cision so to be pronounced on each of the question, sliall guide the commissionners and the Attorney General, and shall in any actual case thereafter to arise, be held to have been a judmcnt in appeal en dernier resort on the point raised by the question in a like case though between other parties. In conformity with thene ])Tov{sion3, a series oi' (luestions framed by the Attorney General, and six distinct series from as many Seigniors have been submiued to us, embracing almost every hypothesis and proposition whicli can be suggested by a study of the Feudal Tenure, and of the local laws modifying it in this country. By our answers to these questions we are expected to lay down abstract rules as an authoritative interpretation and settlement of all the conflicts, obscurities, and uncertainties with which the whole subject is emLiarrassed. It is not, therefore, too much to say of this Court, in the words of the Attorney General, that " its mode of organization and the powers with which " it is endued are extraordinary, and witiiout precedent iu " other countries.'^ Its character and functions are indeed altogether anomalous. There is an assemblage of Judges but the office to be executed is not judicial : they ai to ex- press opinions but to give no judgment ; for there is nothing before them to serve as the basis of a judgment, no suitors, no issue, no evidence, no case or record, and the statute in terms declares, that no sentence is to be given against any party. The duty then would have been little more than that of commentators on the Law, were it not that a sanction is given, which confers upon our answers a real and formida- ble power. The statute enacts that they shall have the vir- tue of judgments in the last resort; and this not merely against the parties who have appeared before the Court, leaving to others interested the right of testing the soundness of these ('pinions, and of maintaining their rights before ■ 3 e gcs any that erely ourt, ness uiher ("vnirt'S of Jiidgfs ; but that they shwll be abi^olutely J)inding against all clashes of persons. These opinions, therefore, in ctiect not only Jnterj)ret bnt supersede the Law, and if erroneous they repeal it, and substitute a new law in its place. Hence the functions we arc exercising, are in their nature legislative : our pesition is not that of Judges, applying sj^ecial rules to a particular case, for regulating and e-nforcing the rights of individual parties ; but it is that of legislators, giving an authoritative interpretation of the law for the governance of the whole community; or which is the same thing establishing a declaratory law, — (1) " II y a " says Toullier"deux sortes d'interpretations, '' Tune par voie de doctrine I'autre par voie d'autorite. " l''int(^rpretation par voie de doctrine consiste a saisir le " veritable sens d'une loi dans son application au cas par- *' liculier. L'interpretation par voie d'autorite consiste ;\ " n''soudre les dovites ct a fixer Ic sens d'une loi " par forme de disposition generale, obligatoire pour " tous les citoycns et pour tous les tribunaux " II est evident qu'une telle disposition ne diflere en rien *' de la loi ; et par consequent que l'interpretation par voie " d'autorite doit appartcnir au pouvoir legislatif. *' L'art : 5 dii €ode defend au juges de prononcer par voie " de disposition generale ct reglementaire sur les causes " qui leur fsont soimiiscs; Ce serait usurper le pouvoir le- " gisktif." I do not insist upon this peculiar and anomalous cha- racter of the Court, with any design of questioning the wis- dom of the law by which it has been created. I am willing to believe that amid all the dilliculties surrounding the set- tlement of this great public (juestion, difficulties which the agitation of the country has greatly increased, the course adopted has much to justify it ; but I would couple the extra (1) Toul. nos. 121, 136, 137, li5. t'l % mT ■ ' < 4 e iiuliciul nntmc of llic odicc imi)()s('(l upon lis, with llir in. triiisic iiiiporlaiu'c oltlic suhjccl, in ordiT to slicw how drli- cati" and oiihious is tlic (hiiy, and how i(rav(> the rrs|)oiisihi- lily, wliich hy this Scii;iiiorial act has been shil'tcd iVoiii the h\y;ishilivt' to th(> judicial body ; and I woidd (h-rivc iVom it this practial consc(|iicncc, thai since \v(' have to deal with li.c matter we iiiiist l)e earelid to do so ^\'ith a severe and jt-ak)us h)gic, l'oiiii(U'd upon known piiiiciph's ol' judictial iii- lerpretiJion, and upon thtMu ah)ne. It is to he viewed hy us in its ici^al asptH-t oidy ; without re£>ard to the interest il has excited ahrt)ad, to tiie unpopuhu' and oljjeclionahhM-hn- ract(M- ot' any rii^lils, or of any class to \\ hiidi it rehites or In any *)ther extrinsic consideration whatever. HuMiueslions and jiropositions laid before ihe Court by the Attorney (Jcneral in substance teiuh'r tlie concdusion that the contracts alfectintr some of th(Muost important ri^lits of })roperty unch-r thi' feu(hil system, as it exists in this iH>un1ry, are iUci^^al and null. It is certainly a startling; con- clusion. If the law be so, we must of course! declare it; but nothing loss than an absolute certaintly that it is so, can justify this Court in thus subverting the rights stipulated and enjoyed by a whole class of great landholders in Seigniorial Canada, and conlirmed to them by long and nudist urhcd possession. In all ages it has Ihmmi the policy of civilized nations to sustain conventions and the rights of |)roperty. Every where wc find rules established, wdiich after the lapsr of a certain period, ])reclude all question of the validity of Titles. Such rules are necessary for gvurrding against the insecurity which must result from the power of invoking ancient causes of nullity, long after the changes and chances of life may have rendered il impossible for the p )sscssor to defend his rights ; without them nobody could feel sale. This is a conderation of grt>at public moment, even in reference to individual cases, but when ancient nullities are invoked to impair the titles, not one man or of ten, but of an entire 5 e ;m(l lorial itIkhI li/cd )(.'riy. apse 1y ol' A. llie okiiiij imcfs sor to 'his rcnco ,'c)ked entire (hiss of landholdcrH in a country, it ])co()mos a matter which yichls in iiii|)()rtan(t(! and solcjjinily to lew, whic^h can aris»; ill hiiiii;iin socicly. In lliis view then of \\\v sMbjcct, I repeat, thai I turn to the closc'st and most inllexihh; rides ol' law, and of judicial inlcrpnMation of IIk; law as the (»nly safe i^Miiile. I feel thai I am not to cast abroad for conjecttural or reiiiote reasons for such a (Construction of tl;e law, as would disturb tli(> cstablisluMl order of things, but that, on tin; con- trary, it will be my duty, to maintain tli(! intcf^'rily of con- tracts, unless I llnd a settled principh; or an express law of no doubtful meaninij; which d(Mdar(;s them bad. f have said that the (piestions and propositions of the Attorney General tender in ellect a con(dusion, that the conviintious between nearly the whole body of Scd^niiors and their (Jensitaires, regulating some of the jnost imi)ortant terms and conditions of the concessions of land, an; illegal and null. 'J'lie great (jueslion th(Mi, in its ultimate form and ])ractieal conse- (liience, is not merely how th(! hiws of (Janada, anterior to its cession to (^reat Britain, and especially the arrets of 171 1 and 1732 were understood at or immes, (daiming under deeds many of wluch are more than a century old, can by tin; decision of this Court be now deprived of the benefit of their titles ; and the rights stipu- lated in them be virtually declared and a))use and a fraud. And with this statement of the (luestion are to be coupled its dei)endent facts : First. That none of these titles have ever been dc^clared null by judicial authority, but have with- out exception been acquiesced in and acknowledged in a \arjety of forms and in repeated instances, sometimes by successive generation.,. Second. That the parties of the original contracts have, in most cases, long ceased to exist, and are now chiefly represented by those who have paid for u ' 4 6 e xheir property, according to its value under and ttrder ol*tllin!,^s existing universally throughout Seigniorial Canada. This statement of the true question is important ; for in the multitude of propositions, and the variety and extent of the discussion, we are in danger of losing sight of the ulti- mate character of the points which we have to determine, and of the great consequences which hang upon our deci- sion. Upon the whole subject counsel have taken a very wide range ; but the members of the Court connot individually be expected to follow in this course. From the nature and magnitude of the interests at the stake, it was ])roper that the largest scope of discussion should be encouraged ; but when we come to deal with it as Judges, we must fall back upon narrower and safer grounds. As an able diffusiveness has characterized the argument on these questions, so it is to be desired, that legal precision and a strict adherence to prin- ciple should characterize our answers to them. They are not to be disposed of, by the Court, as a matter of historial speculation, of social economy or of ])olitical expediency, but simply as unmixed questions of legal right. To their elucidation and settlement as such, great variety and force of reasoning, and profound learning have been applied from a variety of sources, as well at the Bar as on the Bench. I therefore design to avoid as well the citation of books and documents, which others have brought under the notice of the Court, as the repetition of reasonings already urged ; and to confine myself, so far as is practicable, to an announce- ment of the result of my deliberations, without entering upon any detailed exposition of the process by which such result has been attained ; except in cases of obvious necessity, and those in which I may differ in opinion from the majority of my brethren. The observations, which I shall thus offer, will constitute my reasons or motifs for the answers in whicli li ' yr wide illy be e and ;iat the : when £ upon ss has 8 to be prin- are torial cncy, their force from 1 and ".0 of ; i-nid unce- upnn csult ,and ty of offer, hicli ill I 7 c I concur wJih tho Court, and for my dissent from those ans-' wcrs upon wiiich I am in tiie minority. The whole subject seems to me to resolve itself into iliree principal divisions. The first division comprehends all the questions of the Attorney General numbering from one to five inclusive ; re- lating to the effect of the feudal contract, and to the nature and extent of the Seigniors right of property dominium in the lands of his fief, under the Custom of Paris ; and all the supplementary interrogatories relating to the same subjects. The second division comprehends all the question's re- hiliiig to the obligation of Seigniors in this country to con- cede their lands on a rent charge ; to the rate of such rent being fixed by law ; to the character and effects of the arrets of the (jth July 1711, and of the 15th March 1732 ; and to the powers of the Courts of Justice in this Province, to er>- force those arrets since its cession to Great Britain. This division embraces the questions of the Attorney General numbering from t "ven to twenty-five inclusive and the thirty- ninht, fortieth, forty-first, and forty-second questions, together \\'ith the supplementary interrogataries relating to the same ^fubjects. The third division comprehends the questions relating to the rights of the Seigniors in the waters ; and to the rights of banalitc, hanalite des moulins. It embraces the questions of the Attorney General numbering from twenty-six to thirty- eight. FIRST DIVISION. Upon the questions included in this division, relating to the nature and extent of the Seignior's rights of property dominium in the lands of his fiof, and the eflect of the foudal contract as to the division of the prope rty in them under the ip:- 8 e Custom of Paris, it appears to me that no difficulty can be felt. I take it to be undeniable that under that system nf law, the Sei^mior was truly |)roj)riefor of the lands held by him enjief\ as a pro|)rietor under any oilier form of leiniic can be, lie had both the dominium directum and the resumed by tin; Crown. This was foUowc d .'>v another arret in the t;umc terms on the llli June 1G75, aii'' 11 for; I CCOIi- pro- rces omi- order were 111 (ir- on Id mil" ■)\vc d an-' m 1»V boili tln'^<* (li't'i'ts it \vii> It) he ;i I'ondilinii nl ilic r<'t![rnjili of tin- hiiil"*, iliiii tliry wen- to he cNMred williiii lidir \i'ar^ I'rotn the grant, liy IctirrH piitont dated the iOili May I(i7:'.1i'.)n to settle and cultivate i«i nnnounced in the acts of confirmation of the grants. There is one by Frontenac 1G71, another by him in conjunction with Duchesneau, on the 29tli May 1G80, in wdiich it is made a condition to cultivate; defricher within six years under pain of nullity. The same rigorous condition is inserted in • he confirmation by the King, on the 15th Ajiril 1G84, of the grants made by the Governor LaBarre, and the Inlendant l)e Mculles bel"een January 1G82, and September 1G83 ; md also in the confirmation, on the 14th July 1G90, ofth(^ '^'rants made by the Governor Denonville, and the Intendant Champigny, between November 1698 and October 1699 The royal confirmation 6th July 1711 of the grants made by the Governor DeCalUere, and the Intcndani'i Talon and Champigny up to October 1710, among various other condi- ''i'>us, •xintaui'^ 'hat of ''loavanc^ an<) habitat ion. '■'■ ilefrkf**^ h- m ^l( 'i;.' li * 12 e inent cl tenir feu et /iew," under paiii of niiilily; and spe cially provides tliat these conditions shall be binding al thon£(li not ptijMilated in tlie granN. Taking then the con- ditions of llie grants, and those contained in the acts of con- firmation, together with the comprehensive terms of tlie se- veral arrets de rctranc/icnient, it may, I think be asserted without hesitation, that all the lands granted previously to the arret of 1711, were inde];)Gndenlly of that arret liable in 1)6 reunited to the domain of the Crown, in case lliey wer« not cleared and settled within a specific period of time. Indeed, nothing can be more explicit or more stringent, than the terms j]i which the obligation to clear and cultivate {(h'fricher) is expressed in tliese instramenls. But even without such expressions, the design and policy of the sn- vereign must be inferred from tlie nature of things. After the Great Companies, vs"hich successively became proprie- tors of the colony, had surrendered their rights, and a Jvoyal Government had been established, the lirst oiiject of admi- nistrative and leijislative action wtniid naturally be to sub- due the wilderness of tiiis wide territory in the new world, and to cover it with cultivation, and a population from tlie parent state. So far the intentions and policy of the Kinirs of France arc too manifest to admit of coiitroversy. Hr.t Wiien we cu;iie to enquire into the particular means by which ■•his policy was to bo carried out, and wliethcr for that pur- pose, a legal obligation to concede his land, was imposed upon the Seignior from the beginning, a question is raised touching the rights of projierty, which assumes an entirely diilercnt eliaracter. By the law, as it oi)tained under t)ie Custom of Paris, the Seignior Vv'as und(u- no obligation to concede. If sucli an obligation were to be found as an ex- press condition of his grant, of course, no diinculty could be felt : the contract would make the law for those who were pnrties to it ; but it is admitted that no such expressed con- dition exists in any grant anterior to the year 1711, and it is 13 e rr suh- orld, m the rhic!) pur- posed liscd irciy r the on to 11 cx- Id be were con- ■] it i9 'jLirely not ulU ' able to assume, as a iiiatlcr ol' inij^lication, tnd in the I'aoe of the hi\v, that merely because an object of declared public ])olicy mitfht be advanlaijeousiy attained l)y a cerlain course of action, tlierel'orc liiat particular course of action becomes oblii^atory upon all })ar1ies. Tlie casc^ must go uuich I'urtlier to justily sucii an inference ; i1 must shew that in i)oint of fact, the declared object of the £(rant, and tiie ubiigalion im|)oscd by it could not be satisfied in any ol'icr Avay. But it is certain that such a case is not before us : for the business of cultivation and settlement, iriii^ht have been promoted and carried on in a variety of ways other than by conceedinii^ the land. The Seignior mii^dit, for in- stance, have cultivated larG:c tracts by iiis own servants* ; or he nii.'j;lit have given long leases ; or he might have caused them to be cleared by tiiird parties, oii tiie coiulilion of their retaining as their ov\-n a certain jiroportion of liuun. By theso and a variety of other modes, the lands might have been cleared and settled, as they have lieen in other colonics, vritiiout any concession en ccnsive l)eing (;v(>r made. TUo law, which exists as well for the j)rotecli()n of private riglits as of public interests, cannot l)e ciiangcd upon an assumji- tion so unsubstantial as this : nor yet can it be controlled by a declaration of the policy of the legislator, or by his inten- tions, unless these be expressed in the form, and subject to the conditions necessary to make them law. Such legisla- tive expression of the royal intentions, I no wlicrc find an- terior to tiie arret of llio Gth July ITll ; and tlie conclusion, that, prior to this arret, the Seignior was bound to concede his lands en ccnsive merely because that was ajiparcntly the; most effectual made of settling the country, although such an obligatioti was unknown to the law of his tenure, and the object of settlement might. Iiave been attained by other moans, appears to me far too loose and illogical to be made the basis of a jurfieial decision. The truth n-ems to bp, that up to the date of the arr^t ■m t 14 e bl'tlie Gill July 1711, ilif matter ol' concr'ssioii by tlieScignioi was lell to Ills own discretion. 'J'liat arret cl(,'clan!S, thru by tlie royal concessions to tlieni llipy were perniilted { ixr mis seulement) to concede tlieir lands, not obliged to do so, and tlic same form of expression occurs in the other arret ol the same date. The government considered that self-inter est, and common prudence would induce the Seignior to adopt the means obviously the easiest and most efl'eclual, lot causing his Seigniory to be settled and cultivated. lis in come and means of subsistence depended upon it ; r uj \hv. preservation of his [)roperty also de{)ended upon it, for if not put in a state of cultivation, he was liable to be summarilj deprived of it. The Crown, the sole legislator, insisted con- stantly, and inflexibly, upon the work of colonization goitii,' on, but if the end were attained, left the means to the choice of the Seignior. It is ajjparent however, as well from the terms of the arret of 1711, as from the oliici •' '^o'Tcspon- dence which preceded it, on the subject of co.^' '■ ns aiK) the relations between the Seignior and his Ce e, tlmt there had grown up a state of things greatly at variance with the royal views. The King expected that the Seignior would of course, for his own benclit, concede as fast as he could, •)Ut instead of doing so he speculated in the wild lands of his Seigniory by selling them to other speculators, so that no settlement went on. This description of commerce wa? regarded as a |)ublie abus*.', and the arrets de Marly wrrr the ronsequence then, and later the arret of 1732. The |)n' amble of the first of these arrets, that relating to the Seignioi'«. «!ets forth, first : That the lands conceded in Seigniory rernaii' iineultivated and without settlers ; and secondly: That thr Seigniors refuse to concede their lands, inorder to sell lliem. imposing at the same time like dues [droits de redevanct] ns were paid by the established inhabitants ; which, says tin preamble, is entirely contrary to the intentions of HisINTajes- 'v, and to the clauses of the lilies of concession, by which i" •«j pfrmitti'd r)i.ilv ti' cfdjcfdr- the la'.ld" upo" n ti'h' '<( n''i.l '' 15 c Hire de redevance). The remedy applied by the arret to those evils consisted of two orders or requirements, the first was that the lands sliould be settled and cultivated within a ye^Y from that date, and in default, should be reanited to I he Royal domain ; and the second, that Seigniors should concede their lands upon a title of rent a Hire de rcdevance, without exacting any sum of money ; and in default of so tloing tiic inhabitants were permitted to demand the conces- sion by summons, and on refusal, to resort (so pourvoir) be- fore the Governor and Intendant, who arc ordered to concede I lie lands to the inhabitants so aj^plying, for the same due;? (tiroits) imposed upon other lands conceded in the said Sei- 1,'aiory ; and these dues were to be paid to the Receiver Ge- neral of His Majesty's domain, without the Seignior being lilt it led to any claim whatever upon them. '•'t-<" It is to be observed of this arrM^ that it did not intro- duce any new rule respecting the obligation of Seigniors to clear and settled their lands ; that obligation, as has been ^tiewn, existed before in its most rigorous form by virtue of the Royal Grants, and acts of ratification and the arrets de retranchement ; but it conferred an authority upon the Pro- vincial officers, the Governor and Tnlendant, to pronounce ovdinances or decrees for escheating and reuniting lands to ilic domain of the Crown, and this was a new authority, Adiich up to that time had not been exercised except by the direct intervention of the King. The arret also introduced a new provision, in relation to the inamier in which the settle- ment of lands held in fief and Seigniory was to be carried nut ; by obliging the Seignior to concede (i tifre dc redevance ^\ itiiout exacting money ; and by ordering the Governor and Intendant upon his refusal to do so, to concede his land for "rluiti dues (droits) to be paid to the Crown. Hf A further observation is rendered necessary by (he (pies- '11 vvjiich lelalcb to the extent of (he application of ihi- law 10 c 1 canaol uvuid the conviction that in its tcruis ituppiies oiiiy U> those grantis w iiich liud been made en seigneurie belon: its promulgation. The preamble, and indeed its \vhole tex- ture and phraseoioj^y seem to me to shew that it was iioi ii'tended to ailect subsequent grants ; which of course, Ihu King could regulate by such special conditions as he might see lit. But on passing from tlie terms of the law to the fact of its repeated recognition, both under the French doiui- nion and since, as being of imiversai application, I feel that it is loo late to rest the interpretation of it, and to limit its operation simply upon the language in which it is exprc:-*- cd ; and it is upon the ground of its having Ijcen invariably treated as a law ap})lying to all grants without regard totlie time at which they were made, that I have concurred in the; answer on the subject given by the Court. Upon the provisions contained in this arret relating to tlie concession of lands by the Seigniors, three important questions have arisen. First. — Does the arret in imposing upon the Seigniors, the obligation to concede, establish or shew either directly or by legal implication, that he was bound to do so at any lixed rate of rent ? I i Second. — Is a concession which stipulated the payment of a sum of money or other ciiarges in addition to the rent void or voidable in \\'liole or in part ? Third. -^—lliiH the authority conferred on the GovcriKH and Intcndant to concede under the terms of the arret passeJ to the Courts of this Province ? The first of these questions, viz : whether tlie arn't obliges th(.^ Seignior to concede at any fixed rate of rent, li;is perhaps been regarded with more interest and bt.'en inor elaborately discussed than any other submitted to this CoiiH iiiund 17 e ]. [> i'ji:.;l)li llii.: law (■(lUl'ili,- fic .'..XIMV.i-; tciin-; liy wliu-ll \u\ sprt'iilc aiuoiml i»I ii.iit )> liAC'i . i)ii! >i\ti;,l Jiiopobl ■ iMiis liavf lu'i'ii arii'iicd lor the j,ll^|)()^,^■ .it .^hcwnu.; iVoiu il* ;;(ii'r:il -••o|)f and chavacli r, and lii<, (>'h|c( i it liad in viuw, liial iluMc was fiiw.h a spccilic amtnini lixcd I'v law, ur by t li'-k"!), or l)y l)olh conihiiicd. These propositions may In; u lineed lo Uvo ; First. Jt is ;>aid the mere re(iviiremcni to .'(iiii-edo, necessarily implies llie obligation to do so ata i-er iain rale ; otherwise the reciuiremeni heeomes inoperative, ;.)!• lh(> Seignior has only to ticiuand an exorbitant rent, and iliiis uvoiti the law. The t)bvi(ms answer to this argiimenl :■■ ihat in all cases tarning upon the refusal of a party to t|o Munt'thing required of him hy law or hy (Uiulraet, the rt I'u- Mil may be either direct or implied, and in the latter case ilie Court exercises its discretion in determining what cir- cumstances constitute tui implied refusal. Such a discrc- lion belongs to the Judge even under our strict judicial sys- U'ln, and there can be no doubt that oiliccrs holding the larg- er powers belonging to the Governor and Intendant, v.-ould ;ii once have dclerminiMl, that the demand of an extravagant It 111 was a virtual refusal to comply with the law. They would exercise a discretion in that res])ect as they would be iibliged to do upon other points of at least equal importance. The general and imperfect manner in which the arret is cx- piessed, necessarily left iruich to be su])plied by the oilicer (iilbrcing it. Vc instance, they would Im obliged to determine ilnMluantity of land which the /»«/;/'/(/»/ was entitled to de- iiiand, for the arret and tin.' |)receding law arc silent on the ?;iibj(!cf ; and also to lix lh(' amount of dues, f/ro//s, at which tiicy were to concede lands in Seigniories, V\lierc there had bi'cn no previous concessions, or where the concessions had uoi all i)een made upon 'Hjual lerm^. Ttie iruih J-, that in 'Tiler lo carry oiii liiis law at all, li wouid lia\e bi;(, n neccs- ^•ny lo cxercisr a lar^e diM id loiniiy powci'. lial IJKac ]■• I liri'adcr answer lo )lii-< |inip(>>il n.ii. 'I' be arri i >■! 17 I I ii:;<' priivi>i,.i)<. of a m'>-' '-U'lni'vii' i-haiarii r l.i;- '-(.iiipillmg S^'i,, .J II ill ( , I 1 IS i .. ( jiiors lo (tbservo its requiremenls. Tlic .'ibsolule ortk'i- made upon tliein to concede implie;?, not a legal obligation, but a plain necessity lor conceding on the terms customary in the Country, lor the obvious reason, that nobody would be found to pay more ; just as in our time, it rarely liappens that any body will pay more than the current price i'or wild lands or for the rent of a house. It is a matter which r(\gulates itself without legislative intervention. The law says, concede I'ur a rent ; if you do not, one of two things must follow; either the King's oilicers will concede your land and take the rent, or if the land remain imnonceded and unsettled it will be forfeited to the Crown. With these alter- natives before the Seignior, who can doubt that the rale of rent in concessions must from the necessity of the case as a matter of fact, but not as a rule of law, have been the customary one. But again it is argued as a second proposition, that the requirement to concede, taken with the order that the Governor and Intendant shall do so, for the same dues im{)osed upon other lands conceded in the same Seigniory, justifies the conclusion that there was a vmiver- sal customary rate, to which the Seigniors under the law- were bound to conform ; and this conclusion it is said is aided and sustained, as well by the fact that all the con- cessions in the Province up to the time of its cession to Great Britain, were made at low rates varying but little in amount ; as by certain judgments of the Intendants ;and the public correspondence and documents of the period, relating to the subject. The special question here submitted is still whether by implication of law, the Seignior was bound to concede at a certain rate of rent. The provision of the arret which is relied upon, as thus legally implying that the rate of rent was fixed and obligatory, whether taken by itself, or aided by information derived from external sources, does not appear to me to justify the construction put upon it ; and for this reason. When upon the refusal of the Seignior to coii- ecdc, it became the duty of the officers of the Government 19 f !() (io SO in tlio namo of tlie King, liic idea ol' \\\o. sctllomenl ol'tlio lornis of ilir concession by convention ^\:ls of course cxclnrU'd. It ihcrefoic bec'inif- necessary that some certain rule sIk)ii1(1 l)e e, lay. 'i'lieri' was notliinj;; new in this rnle, it m ;is derived IVom ihe recognixed I'sa^t; ill France. In cases there, when the terms iiiuler which tlie Censitaire held were not settled by convention, or coidd not, he otherwise ascert;iincd, th(>y were taken to be the same as those prevailing in the neighboring c-oncessions. So far ilieii from considering that the establishment of this ndc, lor the guidance of tlu; })nblic oilicers, shews tliat the same rule was ajiplicable Io iIh,' concessions by the Seignior, it seems to Mic to tend the other way, and to justify the presumption that as the rule was not cx))ressly extended to these latter rDiicfssions, they were to be made on such terms as the c(jn- trading parties might agree upon. As Io the decisions of the Courts under the Freneli do- minion, I find none which warrant the conclusion, that there was any fixed uniform rate ot)lig!i1ory by law or by custom liaving die ibrce of law. The c]ii(>f, in fact, thi^ only case whicli has been presented to the Court as ])earing materially upon this point is that ol'the lnhal)itants of the Sidgniory of (Tuiidarville and the Demoiselle Pfuivret adjudgtu) by the Intendant Hocquart on the 23rd January 1738. (1) In this '■aso, the contest turned upon the situation and boundaries ')f certain lands conced(>d ])y her, but of wliicli no formal titles of concession had l)een given. She (the l)«dendant) oilered before the Intendant to concede for such ccns rcntca c! ilroits as he should be })leased to order. She Avas main- tained in her pretension by the judgment, and the jdaintifl'-* (I) ImI. ot Oi-d. Hvn. 2<\ vol. ii.rvJf). i^. '1 i ill •20 e acre oidfiv J i.. il !l lir fl'Ml; ■ 111!''-- II CCM' |>1! rlMqil ■II ('! nil I lii-v nci.ordiii^ily, n' tJi'j li' -I'", -:i\ I'ir ; nil snl iltj '* |'<'tii cii -^iipcriicic <•! li!) '•l:;ij'(.n (mi \i!]!j-t sol'^ !ui clioiN y DaiDelx-i;! in the ca^e of Xoir dit Kol land vs. licrthc rednciTiLr the anK.innt of r(ns; for it aj)])(^;iv- npon the face ol' the judi;inenl, that ii wa^ an (;xercise of ;iv bitrary power, and it does not even assnino lo iia\<; beet; based npon any exist ini^ law. I do not deem il necessnrv lo dwell upon the ))eenliav c'laracter of the decisions of the-t Courts, or upon the iniluence wiiicli ihcy c»ni,dn to have ii. the formation of our opinions ; but it may be said of llirni in <^encral 1erms,lhat they so often combine with the aji plication of the law, a discielion that is beyond law ami wiiliout law, that il is diflienlt lo e\lracl from ihem, 1 vJl! iiol say any uniform jurisprudence, but even any certain rule. They are frequently more in the form of orders or reglemcna than of judgments, not unfrecjuently arbitrary, and sudi a- no Court of Justice acting upon recognized principles, iunl subject to the restrictions observed by mere judges, could ever have rendered. The fact, undoubtedly is tiiat die In tendant, keeping in view the general policy of forcing si tt lement in the country, applied tlie meatis which under ttif circumstanc-es immediately iiejure liim, he though'. I'*'.": adapted to that end, and tjius constantly ga\c decisii-ns aii'i orders, which could not ha\p I'ccti JM.^tilief! iu anv (Joiirt mi :j£ V 1>1 f I « !'i;tn«i' ; ;iii(l wlikli ci'i'taiiilv no Cotirl in Hritisli CaiiruJii ciiiild M-nlnrr lo ^ivc. It won Id hv a L;ravf and dani^crons fiior lo >n))])osf, lliat such decisions <.mvc]i under a ))()lilicrd and jndicial system, and in a stale of society so ladicallv ditU'rcnt. from ours, can he received as an iincrrin;^ expo- sition of llie law, or that, as jiidq-es, wo (an saledy re;;ard tliem with wny other, than a very (luaiifted respect. I \y,\HH thcn'lure to llie conc(>ssions. There is without flotiht ;i iini- loraiity in tlie iniiounl of rent, and in the t^oneral tcnris sti- pahitfHl in a ixyvwi mnltitndi; of the concessions anterior to ihe continest ; and tli:"! ciian.'^'e in tliese respects from lirst to last, is with a very few cxcejilions reniarkal)ly small. lint tliesc low rates, and this unil'ormity do iir)t (>stal)lish iha! there was a Icqal oljliirntion n"t, to exceed them. TJicy simply shew that the value of land was inconsidt^rable, and I lie progress of the conntry very slow. And ihesi^ ; found- ing of (^ncdjce, the whole population liad attained only to some G5,00() ; and the acconnts givcMi 1)y Cliarievoix some 30 years earlier of the condition of the Seigniors, and of tlic colony generally nflbrd no (^xnlted idea of the prosperity of either. ]Jut the nniforni low nnits even if i.ni'\[)lained l,y the oircnmstances of the Province, could (v-1a!/i;sh no rule of universal obligation. I am wiilijig lo bn-.\- to llie aulhurity of a Jurisprudence of arrets and judgiiicnls, iind to acv-ord to them the force of law, — i)ut a jurisi)rucl<>n(>e (-fccnccssions is a novelty which I am not ye! piepaied to leciMve. I would admit that v\p\-y concession in chihU'i: ju French Canada, and all in British Canada, had been made at one iixed and unvarying rale with tiie, t:xce[)lian ol one which was higher ; yet in th.'j Ccbscnce of positive; law dt-claring nieli higher rent illegal and i!ie sti[)idalii.iii of it null, ! '^liould hold it to l»e v,'''kl ami b:') ling. \Viih respiM-; I.ht■r^•^,l'•li to the f\.arf.=:>ion'^, ( hax'c no dtihculiv in ^aviuj. I '' m 1 1 1 •-■ I ! S ! I' :' I 2-2 e lliat llioy lire not ol' ;i nuUin.' to sustain the ar/^nniPiit, iii;il llu'Vfi was at any limi* cither bcCoicor alU'r the ant't of 1711, ;itiy ll.\(i pri'cnlini,' t!i(- arrets of 11!!, \> Iiii.'li call I'le atlcii- lit)ii o( the I'p'iuli (iimislcr to ibc n(•(•(■>^ ity ol" Ic'icislalicii upon the .siihjeci ol'tlie Sei,ifiiiori;il Concessions;- -the ni'Mnc- rials of the Kint^"; - llie hreviMs (>!' ratification of t.Taiits IVoa! the ('rtCvMi, ;irr not Law ; are not an authoritative inlciprc- lation ol'the Law. They are mere sn tribes! ions, ox illnstr;;- lions, or r.'cords ol'cxislin2[ evils, and oi reme(li(.'s wliich it rni!j;ht be expedient to appl} totiios(! evils. All llicsi; t>onr{a'.s oi" inlorin iluni, lo'^etlior with historic^al invi^sl ligations into the State of the Country, the necessities of the po|)uhiti(iii. and the innnediale occasion of the law, may be admitted for tlie jiurpose of elucidating an ambiguous expression found in it, but not to supj^ly a def(!ct, and still less tomiikt: a law, where none (exists. If it had l)een the intention of tlic Legislator by the arret of 1711, to conline iIh; Seignior in his concessions to a fixed unvarying amount of rent, suu'ly it was the easiest thing possible to have declared it. Fin- ding no such dtudaration, I can presume no such intention; and it is my settled conviction, that notwithstanding tliiit arret, it was lawful for the Seignior to take avantage of tiic increasing value of lands, and by agreement with the hahi- tant, increase his rates accordingly ; and that lie might at ;u)\ time concede one tract of land at any higher rate than .^nollier, in conformity with his c^.timate of their relative value, and the convention he could make with the pari} applying for it, Tliis matter now cast before us in iui aggregate form has been repeatedly presented to the Courts of Brhish Canada in a great many particular cases, and the decisions ujion it, without I believe a single exception, have substantially sustained the views above expressed. \Vlielli- cr then, upon grounds of original judicial inlcrpretatioa, or upon the authority of long established and iniiform jurispnul- 23 t iiicly Fi ti- ll ion ; tlial of lin' hiibi- ai aii\ iluui kilivi' paviy in !iu i( lavc v net li- on, of priul- ciHi', lilt' ixclf/isiua lli;it tlioit: was al any time a fi\t;d ainonrU ot rent af \viii(;li llii; Soi^Miior was hound to (joiiccdi", iud wliich I'ould not be varied by convention, ni:iy witli >'uli:ty be pronounced to be without Ibundation. 'Die second (|in ♦ion stated in the |)re.se'nt division, is, wliellicr a deed oi Concc. sion sti])idaling the payment of a suru of money, or ehar^'cs reservations or prohibitions in riddition to an annual rent, is void or voi(hible in whoh; iis ol ihf conrcssion \iy (•(ijivrnrioii willi the S(d",rl(- \u: is not lorbiddi-n in k'lnr* lo (h< '<(i; nor can 1 laid in iIh arriit aiiylhiii,:,' which sccni^^ \o iiic hy h'.-,al iiiij)Iicali('n, i' warrant a Court in pronouncing the nullity ol' Muh a cci vcntion. It is indeed not i)retciid(Ml that the arret in term- makes the convention void, hnf it is said, it recjiiires a sjiecifie fhinj^ to he done in a |)arlieular luaiincr, and pmlii hits the doinif of anotlu'r thini,' in connection with it ; niiil this re(inii'cuienl and prohibition are hoih I'ounded on piil»lii policy. The l.aw ihi-rel'ore is one (Vordre pii'.>lit\ and nir. contract deroi^alinj^ Iroin it, must be re,i,'arded as null. I'luii this proposition, that all ads at variance^ with the requi- rements or prohibitions of a Law i'ounded on public policy (rordrc puhlic, are necessarily void, I have to remark, lliiit ii is one which iiuist be received with caution and i^rcii (pialification. It' the acts complained of fall within iln operation of the piU^lic criminal Law, or interfere with iln fmidamental institutions of the Fiealm, or alie'ct personul liberty, or the civil status, or violate public morals, \h (juestitm of their nullity can rarely involve any dilRculty ; but out of this class of subjects the expression, jiulilii policy, iVordrc publit\ l)ecomcs of uncertain signilk-atiKn, and conveys no precise or fixcMl idea; for in this looser s'lb it maybe said that every law which enacts rules fori! Governance of the whole community upon mailers of «>eni'r;i! interest, is a law of public policy, (rordre public, in m> In as such interests are efl'ected. When therefore a Law lil>' the arret of 1711 r(>'i;ulates uunvly civil rights and iii;lii^i property, but with a public objf'ct in view, ilie deelanii"! of nrdlily under it must depend upon ih<' rir<'umsiani^'^ " i ^■1 L ».i,|i ci'^i'. Il I- lit)! < liKii^'li liii ill'' \(iii|;iiii !• mI llir> cotiliiirf^ III s;iv lliiil it I- ;il \;iri:wic(' willi iti'- |)i(>\ isi()ii> uf lln.' Liiw •, lull il iiMi't iilso he sli''\\ n iliiif such v;iri:iiii-i' is ii|)(iii llii' pri.' i-is'' |ii>ilils, ill wliicli ll'.c ])i)iicy el llir l-.'iw or in ollir'r wul'tl.i, ilic |nil)li»' inicri'sl^ iir(M's,s(Miii:illy iinnlvcd. '' MulUi prohi hciilur in jure Jierufnrn tanun facia Ivncnt'*'' snys I'lpiim ntid ii<;itiii " \a'\ iiii|)ciTt'rt;i, vcliili C'infi:i, (■ UMI i 1' >i!sents to pav th' llic piiitlic policy, ihe I, aw in so i'or as its object is ol j)ul)lie ini 'a st is sfitis- lied. 'i'his then is the ^vllole exti-nt, lo which the Law can he re'.'avded as bein.<^ of a cliuraeter which prevents indivi- 'liials iVom reirulatinjj; their rii^hts by contract upon t'-nns It viuianee A\ith its |)rovisions. Jt should never be lost siy;!)! ol", that in matters of property, the primary Law is that \vhlrli tlie parlies make for thenHe!v(!s by mutual atrreemeni. and that all the presumptions should lavor its observance. Fev aithoi,:.:' it is uniiuestionable, ihat private rii/lifs mnsi Held, wheu they are in eon I lie' \\ ith a I-.' intended foi II" promotion ot' I he ueiieiai illl' ir>l-, vcl llie\ > vid s'- !)! M!l\, as i> absolti!il\ iiec,'-v>arv in^i H il)\ ;i,>i()(i of ihi |> '\ale ri:^-ht jiy ihi pMi'in- lie ii\ iniist ii< >lopi)cii ;ii ih( i'l'i'i-i- poiiii w Ip i«' --II' !i lu'iv'^ x'!\ hi th'' (MS* U-, the nt;e I T-lh 'in.,.! I i '.' h<:JI ill' -''II li'i oiiluill'' L» .1 i^i )1C) ) ( Kind, mid llic principle upj)li{'5; li.i |)ri'\cnl llic r\it_'ii>i(.)ii in implication, of any lurtlicr inva^iion ol lliu coiinuon J^nw right of parties to n'ii;nlate tlicir ali'airs as tiiey inii,dit see ill. But belbre leaving this point, I will brielly j^latc the ar;^Mi ment upon it, in another and more teehnieal I'orm. '1 arrOt, it is achuilted, does not in terms pronoimee the nulliiv oC the eontraet. Does it ere:it(; such nullity l)y legal iniplj- «-ation ? The ijeneral rule seems to ])e, that direct and d)Solute ])roliibitions not con pled w itli penalties imply m^ millity of all acts conlravening lliem ; and prohibiti( eonph'd with direct and absolute penalties or lorfeitur uiight in soiric cases, but Car more doul)trully, be held 1o t within the same rule. Jiut the arret ol' 1711 pr(>s('nis neit! of these conditions. The refusal to conccdr, merely give to a private party, a right to a certain rem I's. KM icdv. )on ills option to pursue this remedy the forfeiture dej)ends ; no ollici authority public or private can ])rovoke it. If he droj) tli' pursuit the matter n'Uiains as it was l)efore. The Seignici notwithstanding his refusal, keciis his land, and the Law. although defeated, is inoperative and i)owerless. The forfei- ture then under the Law, is secondary to the enforcement the private right, and if the only person entitled loenforcc ji and V. lio may if he pleas(! thus al.slain altogether IV (>i nil I r'nlorcmg Jt, waives a part ol his interest and Ins right. find enters into a contract i)y whicli the great object of tin: Law is attained ; by wliat possible latitude of construction, and upon what satisfactory re.'ison, could a (."ourt declare such a contract null ^ I have looked carefully into tin- doctrine of nullities implied in cases of positive rcciuirement- and prohibitions, with penalli(>s, and w itliout, and 1 can liiul none which go(>s so far as to include a case lilv(^ tins Indeed the oljscrvations of ]\Ir. llocqiiari in his letter el the lOth OctoIxM" 17.']n, concluding wi'h tlie maxim '' r? f I j'as:> 10 the eon.'sitlcrritioTi ui tlic uiiet s of wild land by any person whatever; ■its declared object Ixdnu^ to exclude all commerce in such J;iii(ls, as an abuse ))rejudicial to l!ie j)ublic intere.'sts. Tht; '!;i'.v is prospective in character, applying only to contracts 'li' sale which might aftcn'wards be executed. It contains 'Id (l"claralJon of nullity of the .sales })reviously made, al- ilioiigli it sets forth that Seigniors and others had in viola- 'lea of both the arrets of 1711 s(^ld and n^sold wild lands; liuis confirming the opiidon that no mdlity \\'iis (U'cated by !lii' arret of 1711 ndating to tin.' Seigniors. FiuiImm- il is to lit' observed that the law introduces nothing new, except the •,f('neral jn-oliibition to sell wild lands, and the anmdlingof ill such sales, with restitution of the price and confisc^ation ef the land to tluM'oyal domain. In all other respects, this arret is nothing mon; than a recital of the arrrfs dc Marhf^ with an injunction that those arrets should be ]int in execu- tinii. Every thing therefore contained \\\ this arret, could have iii'cn enforced under thos<; of Marly if it had nevc^r been ))ro midgaled, with the role exception mentioned of dpclaring 'lie inillity of sales of Mild land and the Jcirfeiture row<*oi^\tr»i 'ipoa siicli nullitv Lit 2 -J li rtiuain-- lo ii;qiujt , v. I K.J : '.i[iiu,'!i' 11 <.il L. ■; ■,('JlUnll;il . Ini-.-', ii" I ■• :ili''>:!- .-i;. 1 ['r,.l;;tjll I. in< in lllf r-.'U fCS-siotls in ;i.!iiii lull Ic tin ■ mi', .a ;i • ( r-|li~,' (iT lllillil ^ . 'i'lir ubs(M\;ili('il.< vJiicii I ii;i\i' iiiimIi' i\<\ ','■■• ;iiii'l I'l I'l i I ;i< ;i!' tcelint;' slipiiliilions Jor \\\r piiviniil nl iimiicy iihpiy li^ | have alr, nm ;.. '/(.(iicedc (or an annual rent, lail lo I't.n -i-dc o\i a i.nt <7/(//'i;v ;( Hire r|ii'lnal licasc, linil r ccn.s^ in conlraih iinction lo an aiicnalion by conlract ol sab', >} lUiw dc vvnh 'I'he a/vv'/ pi'cscaibcs the nature ol' llic 'I'idc i)\ wiiich the Jaii! .*;liall [)ass and iiolhin.,' more ; il lia< m^ rcsliicli\(- cxidi"- fiions as lo (he terms on which il shall so pass, cxcepi the prohibition lo i.'xacl inoncy, which has already been di>j)i. sod of. But in looking closely, at thai jioriion oi' tin- (/;/(/ which imposes n\K)\\ the |)ri!)li<' anlhorities the duty olcdi! ceding in case ol" ihe Seigniors refusal to d-) so, weliml now lerins used in relation to such concessioris. It is w ) longer the word '•'■ re.dcvunccs'''' but the mori; general tiaia rights or dues imposed, avx menu's droits virposis siir /(t autres terres cmiccdccs dons Ics dU(^' sci'^ncnrivs. 'rii:> expression droits imposes^ may inclnde all stipidated riiriii- of whatever description, and tiie niKpialided use of the iinii wanvints the conclusion, liiat the huv recognized and adojii- cd as legal and binding on liie parlies all those rights wiiici! had already been settled by convention between iIk; Seii/ nior and his CenMtairc. It cannot be answered to this, tli;i' the concessions, anterior to 1711, contained no burden^ca' charges or reservations ; for from cap(>s rec()r(Ied, we lin.i '! <:ontrary lo be the fact. There is tor *'\;.irnple. an (u-doTUKi'M * '>f M. Raudot. the ^rrent rt' former of seignioricl abuf-es, il-i!*'i ■2'J e .l:.r :,';rl jiii; l7tlt/, ;ii iiiil;iliiiii;^' :i ri->rr\ ;ttii
  • 'nd;int maintains I'lc Suiiiiiidr of Cli('\ rolivivs in his riL'liI ('f cori'cc ; and this rii^lil. \\a:> ai^ain (';)n(iriii('d and cni'orccd, Ijy an <")rdinancf> ,,| liic Intcndant H('s.f()n, dal<'d 2^ik] .iuni; 171; not of a natun; to Ix; ('xacted or stipulated in !)elialf of the Royal Domain ; but that does not ali'ccl the argument, which is that the use of the expression " riicmcs (Iroil.s imiJoscs siw Ics aufres tcrrcs concedees danti les dites scigneuries,''^ taken Avitli the fact, that burdensome rights had before that time been imposed by conveiUion and jnili- oially enforced, overturns the pretension, that lh(; obligation to concede "u titre tie rcch'vances et sans exigcr aucune som- ruo (I'argcnl ;" im[)lies a j)rohibitioa to stipuhile any ritdit or reservation mjt legally incident !o ilu? tenme. The Arret (>f 1732 athls nothing to ihi> nthers in thi,« rospoct. It recites literally and !(diyb^;i]; arre!s of the for- mer date ruid then goes (Mi to si'V th;!t His M:ih'>ly -"Aas in- tnraied '' f.nr'dv rT'lJndirr drs d'-ijh^si! ioii.'^ i ri-i' diins lnrr:-i Irn'es def 'liiuuiinci co)iNiilcr(tltlt!.;. ini'ih itndcr.! cit /u),".s drlxml, ati 30 It lieu de lis conci-dur shnplcnieut a t'dre de redfranccn,^'' and therelort', Sci^Miiors and other proprietors un.' ordered to clear and settle their wild lands, witliin two years on j)ain of I'or- (eiture. The use ol" this word fiimpleincnt^ has been niadi; the basis of an urgunient, to establish the exclusion and nnl- lity d'all stipidations ordiarges in addition to tiie rent ; but it seeins to me thai it only recjnires to read the j)assage to be convinced tliat it does no! sustain such a conclusion. The Kinii^ is inl'onned, " qu'ils vendent leurs terres en hois debout an li(Mi de les coneeder aiinpleincnl li titre de redc- vanees." There is here no legislative disposition ; it is tln' mere assertion of a fact, fuid that not in connection with any qnestit)n of imposing charges, ])ut in connection with tlii; pale of wild lai .is. All that it antounts to is thtit Scdgniors pell their wihl lands instead of simply conceding them // titre dc r'( trance. .Nothing follows this announcement to give greater stringency to the former law s, which are mere- ly ordered to be executed according to theirtencu' and effect ; without .any modilieation being ujad*; in tliem. Surely, contracts ought not to be set aside upon authority so remote- ly inferential and so uncer'ain as this, it may be projjrr, before leaving this subject, to allude io an opinion given 17th February 17()7, by J^L^i. Elie de Meaumont, Target, and Houchet, thr(M; eminent lawy.'rs of the Parliament of Paris, and registered at Quebec 2.Sth August 17Hi. ■ It is to ho found in the second volume of Seigniorial J3oe. j). 235. These gentlemen state in positive terms. " (Juant aux bois Tjtant sur les terreins de vassaux : si lo seigneiu' s'en est c.\- pressement reserve la propriete nul doute ([ue les vassain ue les peuvent couper ny vendro puis(pi'ils ne font pas |)ar- tie de la concession " and I am satistietl that these ex|)r(\'<- .9ions are intended to npply not as between the Crown and the Seignior, but asbetw(!en the Seignior and the censitaire. In several statutes of the J^rovineial Parliament, there is to bo found in term,^ more or ]e«s direct a general ndnii'<':inii ;J1 e. u\ iIk,' legally (.A stiijulutcd rigliis. Tlit;5,e are principally ihc statutes which relate to the conimuns, in dillbrent parts of the Province. The 1st (jco. IV, cap 17, to par- tition the coninion of the Seii^niory of Boucherville in its 13lh section lias tlu; follow in, '1 HO. P. :'r2 c r!i Ttii-rr iiii' ^ui;if i.iS\ ioii:? limiliilMiii- to >.li|)iil;ili(>iis . ; tliis iiiitmiN h) \\ Iiicli 1 will biit'lly iiUiidc. 'I'Ik; lir:-;i )> a). filicuble to :i 11 nets ol iilu-iialioii, iiud scciiis aliiio.>l U)u |'laiii to R'ciuirc iiK.iition. it is, lliat the dci'd lllll^^t not contain si iincl so many rcsorvalioiis as taken in the a<.>'irr('ii;al(% woiili couipndiend tlio wliolo cslale ; as would he iIk; cast' ]U(lt ihi; reservations s{)ei'i(ic{l iindt'v llic Attorney (Jcni^'als thiii^ ninth qn(*.stion, wen; found 1o<.:;ctlier in tlii; t'nrm tliey air there put. IJut the reservation ol" ;tny part of the estate less than tli(! whole, is not liai)le to the same oh.jeclion. 'l'!,.,- other limitation is lh:vt every such reservt;, isliabh; to In modified and defeated, whenever it manifestly hinders cu! livation and settlement. 'I'hus the Sei^'-i and in telligent population, the-ir pressure Mouh! be seii>iM\ a I' and perhaps more ini])atientl\ sidiered, liiaii ilio-i' inei(ii'.i of the Icnure, which in so far as their ''iii-* i upon ih' \»<'- yeritv of the countrv is eon\ver.s lia^f Ixcu picpan-d lo llic ititli. IDlli and 20lli arjd al.-o to Uu: uDlli and 41^1 cpie.siions of lliu Vllorney General, and in these answers M. Justice Meredith and M. Justice Hadgley concur. The (lucslion here present.^ itself whether these arrets of 1711, and 173'2, have still tiie force of law. With res itecl to that one of the Glh July 1711, which rela1(>s to Sei i,'iiiors, I have accjuiesced in the answer which aJfirnis that ii has. It must I tliinic be admitted to be in force, at least in tliat restricted sense, in whicli a law can be so consider ed, which estaljlishes a rule of conduct, that for want of competent official authority, it is im})ossilil(! to carry into execution. The arret of 1732 offers greater difFiculties in lorercnce to this question. I have said of this latter arrOt, lliat the only new dispositions contained in it arc those by which sales of wild land an; declared null, with the penal- lios conse([uent upon such nullity. The point of examina- lion therefore is narrowed to these dispositions. I must con toss that I have felt great embarrassment and j)erplcxity in I'oming to a final opinion upon this subject. Considerations iitgroat weight, favored the conclusion that these disposi- lions of the airct had ceased by the lapse of time, and the change of circumstances, to have the force of law. I shall content myself with a brief statement of some of these con- Mtlcrations. The prohibition to sell wild lands, and the iiullity of such sales, are by the terms of the law of univer- sal a])plication ; including the Seignior, the censitaire, and ■\^o franc alculicr. The nullity of every such sale under all 'irfHuustances, is declared without lijuiiationor qualiiicatiou 'I ilicrefore this poition of ih'' airrl be in icircf,-, no cinsilairr 'I mill buy from his n(Mghbor a few art<-- of uncleared land 'o'U's en boi,s (khoul lor 'he ■•uj)plv of lu* I in his hou>c, no :m c rnan wiili loo mucli laiul, rould tell a povlioii ol ilio wooilui! aoree, in order to bu able ilie ])cttor to fullivatc the rcmaind t.T ; and a party alter liavinti; boui^lit the land in a wild stati;, and cleared and improved it into ijrealer value, would Htill fall under the l)an of the law; and his title be of no validity. Under the freneh dominion, all this might be adjusted and controlled. The Intendant possesscid functions of a mixed nature, partly judicial, partly legislative. VV^ilh his various and flexible powers he could always measure the applica- tion of the law according to his discretion. He could (.'n- force it, in such cases as he might deem it just and b{;no- licial to do so ; and in oilier cases, such perhaps as [ liavf suj)p()sed above, he would abstain from its cnforcernpnt ; and with a declaration from his intuitive; knowledge llint Hucli were I lis Majcf^ty's intentions, would send the parlies out of Court, liut under the existing system, no Judge can exercise tho same discretion. If the law be in force, it is in force for all parties, ;ind for all cases, which fall within its provisions. Every prohibition, and every right which il establishes, may be invoked, and the Courts of law W'ill be compelkjd to enforce them, without regard to the evident in- justice, or other circumstances of evil public or private, which may l)e inseparable from their enforcement. Ought not then the disappearance of the ofPicial powers, whicli could extract from the law all that was salutary in it, and avoid all that was mischievous, to carry with It, the abro- gation of the law ; when under the inflexibility of the new system its execution might lead to so much injury ? Is not such a law temporary from its intrinsic character ? Again it may be said that a law prohibiting the sale of wild lands is necessarily temporary, as being founded upon a transient condition of society, which in a young and growing coun- try, every successive year must modify. The inevitable re- suit of progress, must be to change the relative value ol wild and cultivated lands ; so that at last the former will become the more valuable of the two. Tliis is even now Ought whicii it, and i ahro- ic new Is not Again it lands is ransieni 35 e ilie cnsu ill u hin^c itoitioii of sci;.'ncnrial Caiinda ; and so I'oinpltilcly nn.! circiiinstanccs Jnvorfocl, that tlio present po- li^jy in most of tlio HfigniorieM, is to preserve, und not to clear the wood lands. When nnoli n state oi' things has re- pluec'd the old order, it would sjmmu that a ease is presented, in which under the; rules of the eivil law, inapplieability, cessation of motives, and change of times, of manners, und of circumstances might be regarded us having cft'ected a re- peal. " Une loi (says Merlin) eesse d'»}tre obligatoire, non " soulement lor.';que Ic legislaleur I'abroge par une disposi- " lion expresse, non seulement lorsqu'elle est suivie d'une " autre loi qui lui est contraire, mais encore lorsque I'ordrci " des choses pour lequcl elle avait 6te faite n'existe plus, et " que par la cessent les motifs qui I'avaient dietee, llatione " legis omnino cessante cessat lex, disent tons les interprfi- ' tes." (8 Merlin Qu. do Dr. p. 547, vo. Tribunal d'appel, ) 3.) This is the expression of the civil law, and it has been lollowcd under the dispositions of the modern code in France. (1) The only addition which I shall make to this view of the subject, is that the dispositions of the law under examination, from the time of its jjromulgation to the pre- sent day, nearly a century and a quarter, have never in any instance that lias come to the knowledge of the Court been carried into execution. It is true that it has in many ins- lances, and with a greater or less degree of directness been declared to be in force, but I think it may bo safely asser- ted, that notwithstanding all the diligence of research which from so many quarters has been applied in the inves- tigation of the important subject before the Court, no man can affirm as a matter of fact, that these dispositions of the (1) Authoiities, 1st. Ton!. No. 1.^3 and 1(J1 to 165, Hep. de Oiiyot ' vo. Desuetude, p. 5r)S, Hop. de Merlin, vo. usage, g 2, Hub. de Goaf* Lug. p. 20, no. 9, En 11. inst. p. 19, no, 15. Dwarris on Stat. 072' Disc. IVtile. du premier projet da Code civil, 1 Doniat. C. 12 et no- '\ p.xxiv, fol. I'M. Also Liv. 1, lit. 1, Sec. 17, p. t, llellcxions by Jus. Meux de Montluel, pp. 5:i, 71 — 9 D'Agucsscau, pp. •ltG-7 'Titri: 3'29, Dal. Diet, do Lc?. vo. Lois, nos. 355-0 ii*^ :io rtnv/^ of 173,2 hav ov't-i hccn itulici ill_\ ulMrrcd. Ii v.-.,iii. trcrtainly ?f«'in. llicn, ihal lliis f/nv7. in ^"> I'.iv ;i'; flat's v the new dispositidns oonf;iiiii'(l in il, lUll' williin niany. ii not fill llie coTulilinn^i wliicli u\o nccrssnry li'V tin* uhntin 'ion of a l^aw hy ilo^iKiliKlc. And ultcn \vn ccmsidrr die in irinHio t'liaraolor of lliis j)orlionol' ihc law, its ulter innp j)lioal)jlity to the prrnont stato of tlit! C'ountry, tho niisclijcl.. which mi^lit follow il-^ indiscriminntr t-nfoivemcnt, tl;r change of vifWfi ns to wliiit is i)ivjiidicial lo tin* j)iil)lii interest, and the consetinent explosion of tlx; idea that w iM Innds onght not lo bt; honglit nnd sold ; joined to the l';i( ., thnt it has nevv Oflicers, and Legislators, I have felt that the case presented for declaring the law inoperative, is not sus- tained by reasons so absolutely conclusive, as to warrant me in entering upon the delicate and debatcable ground which I must necessarily occupy in deciding that the Arret of 1732 ought to be regarded as an abrogated law ; when ihn Legislature has recognized its existence and advisedly abstained from repealing it. Upon the conclusion that these laws are in force, there arises under one of the supplementary interrogatories, an enquiry of importanci;, as applying to the question of the nullity of the contracts between the seignior and censitalrc, in all the forms in which it has presented itself. I mean the eflect of the lapse of time upon them. In my opinion, there is no reason why the laws of prescription should not be available to those now interested in maintaining these contracts, in the same manner and under the same conditions as they arc in relaliim to other contracts. The uninterrupted possession and enjoyment for thirty year?, by seignior or censitaire, ought I tliinU-, to constitute a title, not liable to be invalidated by any alleged cause ol 3D c iiuUily, wliioli may be buppusud tu cxiat in tlitt urigina^ lonvonlion. The only plansiblc objeclion which hus been ur^cd aguin^jt tliis cunclu!:ii()n i^ that thu uriginal titluM wero ronlraiy lo laws " iVorilrc public" and thcrelbrc bo uljsolutoly void lliat no hxpsi; of limo could cover their nuJlilies. The answer to this objection, is to be found part- ly in the view, I have already expressed, as to tho extent and nieaninj^ within which tUc Ari'dls of 1711 and 1732 arc to bo considered laws " (Vordre liublic ;" and it will be completed, by a brief examination of the nature of the nullity declareil by the Iatt(!r of these Arrets. The nullity declared by the ArrH of 1732, cannot I apprehend, be regarded as absolute, {nullile absoluc) in the stringent, and most unqualified sense of that term ; such as it would be if the contract stipulated a crime, or immorality, or some- thing which could not produce even a natural obligation. In these and like cases, the nullity might be opposed, not only by the party interested, or by the public olliccr, but by any third person whatever ; and if not opposed, it would be the duty of the Judge himself to take notice of it. Nullities so absolute as these, no prescription can cover ; but it seems to me to be plain, that the nullity of sales under the Arr6t docs not belong to this class. I think it will scarcely be contended, that any party other than the vendee, who is entitled to tho restitution of tho price or at most the vendee and the Crown could invoke it. This feature alone, necessarily gives to it the char, iicter of a relative nullity, as between the vendor and vendee . As a consequence , the law of prescription would apply in relation to these parties, and the right of the seignior as against the censitaire might be established by it ; and when established, I do not see how the Crown could interfere for the benefit of the censitaire, to defeat iho right which the seignior had thus acquired against him. As to the Arrdt of 1711 if any nullity had been furcated by it, which 1 have shew not to be the case, it '10 c U'cnild he (mo oxclii^^lwh y brtwein ilie sciv'nior Jind vcu aitaire and wilh rospcot to which no action i«! jrivcn to Uir Crown. ThercUiro beyond a doubt it woidd be covered hv tlie la|)se oC time. Let us see, whither liio doctrine, that no prescription can cover this nullity, would lead u.s. Sup])o8e land sold in a wild stat(;, en hois dchout, by a fseit^nior, or by one censitaire to another iilly years a<^o, and afterwards redu- ced by the purchaser, to a state of cultivation and value. Could any stranger, who might liapp(!n to obtain possession of the land, answer to a petitory action l-y him, that the original sale was null under a law d^ordrc public ; and that therefore, no title could be aecjuired, either under the sale, or by the law of prescri|)tion .'' Or if no such exeep tion were raised, would it be the duly of the Court to raise it, and thereupon to dismiss the action and leav(; tin trespasser in j)ossession of tlu; lantl .'' Those who hold, that the nullity of the sale is absolute, in the strictest sen.se of the term, under a law d\mb'e public ; and that no pres- cription cover it, must be prepared to accept thes conse- quence of their doi'trine. Is ih'ia the existing law of iln' land and in the cases which may hereafter present iheiu- selves, will Judges be bijund to apply and enforce sueli a law .-* I feel convinced that it is not so, and that neitlic- of the laws referred, can, by a s(»und judicii'l iuterpretii- tion, be made to de|)rive ))arties of the bene'it »»f tlin^i; salutary rules, wliieh in all countries have beuu Ibiuul >»> important, for quieting titles, and securing trantpiJlity ul Bociety. On third Question which presents itself for exiiiuina lion, upon the provision and eileet of the Ai't'cl oi Hi I is whether the authority conferred by it upon the (.iovtrnui and Intcndant to concede lands has ever passed to au\ o! the Courts of British Canada. Upon ;lii.- (jiK^'liuu aitliuiii'li 41 e it has divided the opinions of the members of the Court, f have not individually felt any diihculty. It has from the first appeared to me incontrovertible that the arrets in order- ing these officers to concede lands in the cases contemplat- ed by it, imposed a duty which was certainly administrative, and that the only doubt would be whether it was purely so, or was in ])art also a jiulicial function. It seems to mc that the whole of the jurisdiction committed to the (iovernor and Intendanl, even in relation to the reunion of certain seig- niories to the Koyal domain, partook largely of an adminis- trative charact(3r. Il is to be observed that this jurisdiction was not held, either befon; or after the (Dfet of 171 1, by the ordinary (^ourts of tht? Provinct;. The forfeiture and reunion to the Hoyal domain of large tracts of land for want of cul- tivation, tip to the prouuilgation of the arrdl of 1711, were mad(^ by the direct action of tiu; Royal authority, through the decrees of the King in (tounci I, called arrets de relrunchcment. Witliout again going over these arrets in detail, for they are substantially alike in this respect, 1 refer merely to that of 1675, by which the Intimdanl Duchencau was recjuired to report upon th(i (juantity of lands conceded and uncleared, and the mimber of men and cattle empl(»yed upon them. I'pon his r(?port the direct action of the King again super- vened, and by the arret of 1(579, declared the forfeiture and reunion. The King, by his arret of 6th July 1711, first es- tablished an authority in the province, by which hi.s imme- diate intervention for the purposes of forfeiture and reunion became unnecessary. He did not confer this authority upon any existing Court, but he selected the Governor, his chief executive officer in the colony, and the Intendant, a judicial olEcer holding also certain legislative powers. And these were the same oflicers who were empowered conjointly, by Ids letters patent of the 20lh May 1676, to concede lands in ftp/ and seigniory in the name of the Crown. It is to be presumed that there was some reason lor the particular and I ai ^ ■ t;. I 1?';^ tr 4-2 c fxieptioniil coiisiiiLiiion of this Court ; tlio obvious otic seern; lo int' to be that ihe King, in divesting liimselt' of the neces- sity lor a direct interference in mutters of reunion, intended Ihut the discretiouiiry ))o\ver \vlii(li he h:i(l exercised should be trnnsniitti'd to his personal representative ; n ho instead oi of beini^ bound by the rides of an ordinary Court of justice, (Midd duis deal with matters broui^dit up before him, aceord- ing to the instructions and jj^eneral views of his royal master ; and wouhl at the same time ))e aided, and sometimes per- haps held in cheek by liis j»idieial eolleai^uc. Tins opinion receives sujjport iVom a comparison of lliis tribunal for n'- unitini^ lands held in Jief to the domain ol the Crown, wifh ihal ereatt.'d by the other r/nvYof the same date for reunitint: those held in censivc to the domain of llie seignior. In ilir latter case, the prcx^eedings >\(M-e before the Intendant aluii'.', lliat is to say, before one (>f the ordinary Courts of the eoiin- iry, because U|)on the complaint of the seignior against lii> censitairc his function was merely to apply tlie rules wliieli iiy the terms of the concession or by law were to regulati' iho respective obligations and rights of the ])artieR, A^;i matter of fact, it is eslal)lisjied by die royal declaration of ll.i 17th .Iidy 17 13 that Uj) to that time, more than thirty ymrs, no ccrlain ride liae of tlieir powers. After announcini.' that thest^ ollicers have jurisdiction to the ex(dusion of llii' ordinary judges, that declaration goes on to say " (ju'il ny " a eii jus(iu'a jnvsent ricn do certain ni sur la forme d-' " pi'oceder soil au.\. reunions des concessions" nor upon ll.'' other matlc^rs reff.'rred to in it, and then "pour fa ire cesser ret etat d'incerlilude, " jiroposes to establish " par une Ici precise des regies iixes." It would certainly b(^ difTieult in the face of this announcement of imcertainty and the ab- sence of fixed rules, lo believe that the authority of the do- vernor and Intendant, under the arr^t of 1711, had been c\- rreiscd as a Court of justice exercises its powers subject lo 43 e ^^Mablishtxl piinc-if>k"j of law, i.nd t(^ known forms of judicial procedure. 1 ;iiii satisfied tli;it it was nof so, and lliat, even in til'' matter of reunions of ///;/.s lo llie domain of t?i(^ Crown, ilie power of llieso oliieers parloo'v more iarifelv of tlie ad- iiiinislrnlivo than of the jiuiieial element, iiut whatever diiiibt others may feel as to the e(n'reclness of tlii.s broader view, there ought lo l)e none ^\ hen it is iniiled wilJi a con- sideration of the nature oflJie daty wliieli the (Jovernor and [iitciidant had to perlbrin in coneeding lands, under tlir^ arret of 171 1, upon the seii^nior's refusiil to do so. In my opinion lilt' |)erl'oruianee of that duty was an executive act of the iMvermnent, and cannot by any well I'oimdeil eonstrueli(.n l.c bn)Ui{lit widiin the delinition of a jiidieial one. Jt is cer- lai'i tlj;it no Court under any .sy.^lem of law, v\ ilh which 1 ;!ia ae(iuainted, can take land Jrt^'Ui the owner and convey it I.) ;Mi()'lier, willi die condition that In; is to pay to a third |.;irly, a stranii^erto the contestation and to all lilies connec!- »d wiiti it, the suppo--ed price or eonsideralion of the proper- ty, 'fliere is here necessarily a doublt; operalion. If the proceedinij; be judicial, the land w licn taken from the owner liiiist l)('l()n^'• tt) soirie other parly, and the lille \\ hleh a^ai/i pusses it nuist |)ro(r(>ed iVom that pari v. In llie case under lonsideration, the land, after ceasing' to bclon:^Molhe seignior, must have btdonged to the Crown, before ii e(jultl have been f'tmcL'ded, and then in order lo pass U) the ccnsilairc^ it must liave been eoneed(xl in the r,;ime of the Crown, by ils ap- pitiaied oiricers : surely it cannot i)es,iidthal this act. oi' coii- I'cding is a judicial act, 'I'lie very statement of the case ^Ik'Ws that the functions of tlieiir- nior and the habitant who was no grantee at all ; and IkM- wecn whom and the seignior no coniestalion could jiossiblv arise under the am't of 171 1, concerningtlie validity of 'iii'ii' grants and the position and extent of their lanils. it i> ma- nife.-it then that tUose provisions rcd'erred to l)y cluef juslici' iveid have no application to l! e concessions to ije Uiadc I) the Ijiovernor and Inlendant, in the cases j)rescril)ed by tii ii arrdt. But if the declaration of 17-13 had in any respect ww application or reference to these concessions under the and 47 c (it 1711, which I am satisfied it has not, it contains a classifi- cation and distinction between the achninistrativo and judi- cial powers of the two ollicers, in di^aling witli the subjects committed to them, which it seenis to nie would be conclu- sive. The division of the subjects of lejj^islation apjx'nring in tiie introduclory clause! of the division is conlinually and clearly pre- served throughout. The first article confers upon the Go- vernor and Intend lilt, or rather confirms in these officers con- |oiiilly, aulhorily to grunt lands on the usual terms and con- ditions, !ind this pi^wer, it will not b(! denied, is purely ex- eeiitivf. The second and third articles comhiiK! the two descriptions of authority relating to the reimion of lands to the royal domain, and prohibiting a regrant until reunion tias been declared. The fourth article, w Inch has been in part recited, has reference to contestations betw(!en grtuitces; and the fiuictions to be exercised unchn* it are judicial. In the fifth article also, the same distinction between the two ilasse.s of powers is strongly marked. JJiit in the sixth ar- ticle il appears in perhaps a more striking form, for we hav« li iv ;i provision thai, in ease of difi"erenee of opinion between the (Joverii'jr and Intendant, upon ai)plication made to them lor a urant of land, tliey shall suspend the grant until tlu^y leceivc iiis Majesty's orders ; but in case of division {pctr- lit^c (rojiinions) as to judgments c)f reunion, or upon contes- tations between gra.nlies, tiiey are bound to call in the senior iiii'inber of the superior council to s<'ttle the judgment. The dislinelion here made is luieciuivocal. Jn the one case, the Kinir's orders are to dispose of the doubt in matters admi- nistraiive, thai is to say the concession of lands. In the oilier, a division in the Court consisting of two judges is to Ijc disj,()sed of by calling a third judge from another Court. ill the eighth article this same distinction is carried out, by v'ivin'ij an apjieal from liie judgments of reunion and in con- tf^tations bi'iween grantees ; while, of course, none is given . U 48 e with r(!spect to application for a concession, which from its nature as an executive act admits of no appeal. I havi* al- ready expressed the opinion that the provisions of the decla- ration which rehit(! to reunions of hind to the domain do no' apply to the proceedings under ilm an'e/ of 1711, l»y wliicli concessions were to b(; made by the Governor and Inlendiint for there is no mentiv>n in that «rrcY, of any reunion and from the summary nature of ihe ])rocecdings, none si^erns to havr been contemplated. " TJie words of the «rrc7," says chief justice Held, " seem to contemplate no course of jndielal " proceed in <^.'" There is no jurisjirudenei; on the subjocl. nor ev(;n a sin2;le case to shew what course would have been followed by the anlhorilies of the day ; but lakini,' tin; terms of the law for a i^nide, I understand that after the ro quisition {mammal ion) npon llie seijC^ior and his refusal, tip party (fuihitant) ajiplied at once, without further f()rmality,to these ollicers and obtained from them, not a judgment of reunion or any judgment ;it all ; but a coneessicwi or f,nan! en ccnsive in the usual form. Th(!re is nothing in the and to sustain tlu^ opinion that any thing more was riMpiirod in the matter, and in this view the func^tion exercised was oi a |)urely administrativn or executive cliaracler. I am satisfied therefore as well from the terms used in in the arret of 1711 with respect to the concessions, as from the (diaracter of the ofHeers entrusted with the duty of en- forcing its provisions ; and from the intrinsic nature of the duties imposed; together with the distinction recognized ami legislated upon by the declaration of the 17th July 1743 (if that law be at all applicable), that the authority and duties of the Governor and Intendant, under the arret of 1711, were essentially, if not purely administrative ; and the necessary consecjuence of this conclusion is, that the right to concede under the terms of that arret, never passed by any law of the province, and indeed under the system prevailing in British 49 € Canada, nnvcr could jia.ss to the Couils in txiiNlencc ainco its cession by l.ho French Crown. THIRD DIVISION. The questions of the Attorney General numbering from 2G to 08, relate to the riii^lUs of seigniors, in the waters with- in their seigniories, and to the right of bannality, banali- tc des rnoulins. The first object of investigation under this division, tiie rights of the seignior in the waters, embraces two questions : First : what nre their rights in navigable rivers. Second : what arc they in rivers which are unnavigable and in the ponds and lakes. There seems to me to be little advantage in tracing historically, the doctrines which at diflercnt periods have ])re- vailed in France with respect to the right of property in the waters. If we take Championiere (l)as our guide, it would appear that up to the middle of the seventeenth century, there was no distinction between navigable and unn;ivigal)lo streams, and that they were all alike subjects of private property, de domaine pi'ivL This prop(n-ty in them was held indiscrimi"ably by the King, tli(! seignior, or the ccn sitaire, as owner of the land through Vvhieh they ran. In this conclusion however Championniere is not sus- tained by the authorities. The better opinion is that the navigable rivers in France were always part of the public domain. (2) This was coincident with the Roman law which inclu- ded navigable and unnavigable rivers, under the same rule ; so that no right of property in them, vested in any private (1) Cliainp. Propriete des eaux courantes, pp. G57-6r)8 no. 382. C-i) Rep. (le xMeilin, vo. Uivieio p. 04-0 § J. 'i? 60 c person ; althoujrh llio ric[lii of iis(! for nnvi or;i lion and nil otlur ordinary purposes Ixdonqt.'d to the riptuian proprirlor. ])ii- rini; a lute })eri()d in Franct;, tlu; Kings asserted l)y tlieir or- dinances a ri£i;lit over the naviii[al)le striNiins, as |)art of tin- public domain, and this was tlu; admitted doctrine at iIh' time ol the cession of the |)rovinc<'. Mul whatever doiil)) might be raised with '•espect to the cpiestion in France, or whatever agencies may liave oj)eiated toch'uy to the Crown a right of property {(lomainc) in the rivers there, those in this country inctmteslihiy bel()iig(;d to it. When the province passed under British dominion, tin; ancient law was super- seded, and the new sovereignty brought along with it its own prerogative and public law, as w«'ll in relation to the King's rights of property in navigable rivers, as upon oilier rights of a cognate nature. The new law is therefore the one which, 1 apprehend, must govern tli(.' decisions upon the subject, in the absence of conventional rights ; and the ml' under that system of law undoubtctlly is, that the Crnuii has the absolute proprietary inti-rest in tlie navigable riviM>. The public have, at common law, a right to navigate over every part of a navigable river, and even the Crown has no right tf) interfere with its navigable channel. (I Kent's Coin. 423-127.) There seems then to be no difliculty in afllrmingtlie decision, that the seignior has no right in navigable rivers as an incident to the ffnidal tenure, or as passing under ihe general terms of the royal grant. These rights must in ail instances be limited by the special terms of the grant eon ferring them; and such terms must themselves be restrieied when any of the easements to which the public are eniiiled upon the river, are atiected by them. These observations apply equally to river> available (oi the transportation of objects of com..ierce by floating, I'irici'r^ flottables, in all respects wherever the public easement'^ ne concerned. 51 e liis no Cdiii. n:; tllr rivcr> Kt ill'- ill ail il coil- lrici''u niiilri! iit'^ ;h' Tlio claim of seigniors on th<5 luinavigable waters i* l.tiirr I'diiiiticd. Tliori.' can, i think, be no liesitation in de- ilarini,', llial in France the small ^ireatns, not available for |Mir|»(»ses of navigation, were as ji general lad, il not as a muitcr of law, in ilie ii inds of the scigniori ; and that in this Lfuiutry they pas.sed by the royal grants, to the seignior, seems to me beyond controversy. The chief dillieuliy which lias arisen upon the (juestion, has reference to Ihc nature of ilic >eii,'niors' title. Acc^ording to the proposition submitted upon tiie ;Jlst (juestion, it is considered iha! ih'- right of the MMunior in these waters was merely inci-'-nlal to his jnsti- y authority, a right of police over them in his quality of Meier \ and it is contended that in (■()nsequen(!c of til' .aiige of sovereignty by tin; cession of the country, this (jiialily necessarily (teased, and as a matter of course all the rights dependent upon it were lost. I am no! (juile prepared to admit that this latter conseciuence would follow, even if I concurred in the views slated of the origin of the ciar •seigniors' There an; many and weighty reasons y llie absorption by the new kingly authority of this right, il'a'.liiiinislering justice, should not have iheeti'cct of takintr li^'lil in the waters. wli awa y the prolitabhi rights attached to it. But it is ti nne- ccssary for me to enter upon this inv(!sligation ; fur after ihe most careful consideration which I have been able to give to the subject, [ have arrived at the conclusion that ihe right in these waters, in this country, was not a right de haule jus- tki\ but was on \hv contrary a right which was included in 111." ^lunl oi \\ic Jiefy and madt? part of it. It is scarcely ne- cessary to say to any of those who have taken a part in the liiisiness before this Court, that this conclusion is not with- out dillieuliy. Of all the obscure questions which we hnve 'i;k1 to examine, this is perhaps the most perplexed. The collection and classification by Championnicre( 1) of the opi- nions of the coiiuTieatators on the feudal law and the treatise (1) Champ. (Ics eaux courautes pp. (i92 to 705. # ^^^ .^-1 ^^, .0^. ^'^^ /, ff V4 .^ f^ '/ /S^ IMAGE EVALUATION TEST TARGET {MT-3) 1.0 I.I 1.25 U 1111.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 // ^A. v^ '^^ y. fA # V qv \\ ^9) .V .1* 6^ 52 € by Mr. Rives, upon the right of property in unnavigable ri- vers, expose a great variety of conflicting views. It may however be said, I think, with trutli, that those authors who directly sustain the doctrine that the right belongs to tho seigniors as haul justiciers, are inferior in number, and, it may be added, with one or two doubtful exceptions, in weight, to those who advocate the right of property in the seignior either as feudal lord or as riparian proprietor. Guyot, (1) in his work on Fiefs, has also collected and examined tho authorities on the one side and the other, and he is in some respects perhaps to be more relied upon than Championniere. In conform'ty with the intention already expressed, I ab- stain from entering upon any statement or discussion of these authorities, for this has been repeatedly done since the Court commenced, and ail the sources from which informa- tion on the subject can be drawn have been fully disclosed. The result of my consideration amid all these contradictions and irreconcileable incongruity of opinions, is that my own inclines in the direction already indicated. The seignior then in this country became proprietor of the unnavigable waters, including as well all ponds and lakes, as running streams, by virtue of his grant from the Crown. He holds them precisely as he holds his fief or his domain ; or in other words, he holds them because they are a necessary and inseparable incident of the grant and pro- prietorship of the land, in which they are contained, or through which they pass. But as they are derived iiom the title of infeudation, so they pass by that of subinfeudation or accensement. I cannot discover any peculiar character, or sanctity in the right which the seignior derives from the ge- neral terms of the grant from the Crown, which prevents terms of a like character in his concession, from conveying the same right to the censitaire. That one mle of interDre- (]) f) Guyot Tr. dcs I'lefs, 2d part. pp. G63 to 670. 53 e lation must apply to both contracts is certainly the dcctriiu' of the common law, and I find nothing which convinces mo that such an exception, as is contended for by the seigniors, existed in favor of the feudal contriict, even in France ; and, in this country, looking as well to the nature of the royal OTants, as to the entire modified character of the tenure, I am satisfied that the pretension is without foundation. I con- cur in so far as unnavigable streams arc concerned, in the opinion forcibly expressed by Championni6re in the G79th page of his treatise. In discussing the necessity of a spe- cial clause to convey a right of property in the streams he says, " En efFet dans les dispositions feodales, les eaux " courantes suivent constamment le domaine utile. Leur " jouissance passe successi\ement du suzerain au domi- " nant, du dominant au vassal, du vassal au censitaire, et " du censitaire a I'emphyteote, comme condition essentielle " de toute exploitation territoriale". . .. and in the same connection " la clause enumerative des formules est rem- " placee par ces expressions cum omnibus adjaccntiis et '• pertinentiis. Le detail des actes anterieurs a cette epoquc " avait pour cause I'absence d'un principc determinant des " objets compris naturellement dans la transmission d'un " immeuble : plus tard les jurisconsultes constituerent ce " principc, et I'enumeration devint superfine." The ulti- mate conclusion then, \vith respect to the rights of the seig- nior in the unnavigable waters, is that his rights pass with the land by the title of concession, unless a special reserva- tion be made of his property in them. As to those streams which border the lands conceded, instead of being included within them, the rule undoubtedly is, if my view of this branch of the subject be correct, that the right of each ripa- rian proprietor extends to the centre of the stream, ad filum medium aquoc. This is the doctrine of the civil law, and of the common law of England, and it seems indeed to be ne- cessarily a universal rule admitting no difficulty. It is ex- (( .. I 54 e presstid by llenrion cle Pansey in these terms. " J.ors(|H( " deux seii^neurics sont separees par iino riviere, elie ap- partient a cliaque seigneur pour inoilie, c'est-a-dire jus- " qu'au fil de I'eau. Tous Ics auteurs sont unaninu's sur " ce point et quelques contumcs le disent expresseincnt." (!) Tlie rule is not peculiar to tlie seignior but extends to all descriptions of riparian proprietors. BANNALITY OK IMIT.LS. 1 have now a few observations to make upon the right of hanal'ite de moulins, a right which has always been re- garded by the opponents of the feudal tenure as peculiailv odious. Among them is Championniere, avIio discusses its history and character (pp. 552-579) in a s])irit of great hos- tility ; and charges prettv freely upon the feudalists a want eitlier of knowledge or ol good failh, whenever their views are adverse to his own. It is however of no imj)ortance in a practical point of view, to inquire whether this right in France Vv^as an unlawful usurpation by the seignior, an ad- vantage Avrested by strong^': from weakness ; or whether it /su])sls1s, have ceased to have the force of law, but be- cause I think there should be a moro decided expression of o})inion upon the uninterrupted omission by the Crown to exact it, under the French as well as the English dominion in Canada. Nothing can })e stronger as a fact than this constant and long continued dormancy of the right ; and a? adding to Its significance, vrc find that in llie colleclion of the laws of Canada, made by the order of Sir Gny Caileton, the articles of the Custom of Paris relating to lliis right, are omitted, on the ground that they have never been acted upon in this country and Cn.gnet, no mean authority on the subject, declar(!S that the right of relief has been abrogated by an order of II. M. G. Majesty, duly registered in the archives of Quebec, and this right, he adds, has never in any ease been received by the ollicers of the King's domain. (1) The (1) Tr. des fiefs par Cugnct p. 50. but ■iSl on of I'own to bminion this uul a? an olion oi \ vie ton, rbt, avo (I upon c1, by f^» |y case 59 c order mentioned by Cnofnet as nbrognting the ric^ht, is to be ionnd in liis eollection ol" the EdUa vl ileclarafions chi Roi. It bears date IIk; i20lli iNIay 1G7G, and is in fad tiie commis- sion ^ivcn to the Governor and Inlcndant to concede, witti an additional provision on which lie relies, and which lie states to b(; in these words : " (ine les aneiens litres qni " avaient cte donnes par la compa^nic sons les conditions " de la Coutume du Vex'iii le Franrais contenuc en la Cou- " tiiine do Paris scront remis et c(mses ctre sons la scale " contnme de la Pre vote et Vicomlc d(; Paris." (1) I do not find in iheso terms any direct abrogation of the right of re- lief; and althongh Cngnet again makes tlie assertion that sueli is their effect, yet it would perliaps bo going too f;ir to ooncludi;, that the law as established by th(* Custom of Paris has been repealed l)y any other law. Jjut it is un- deniable, that a case is made oat, undin* which a doal)t may fairly exist ; and in ailirming the naked h^gality of the riglit oh'elirj] I would connect with it the une(iuivocal e.\])ression of my conviction, that after this long lapse of time, without one instance of its having been demanded, and in view of the opinions just alluded to, the Crown must be held to have made a virtual abandonment of the right ; and that it ought not in justice to l)e included among the lucrative rights whicli are to be valued against the seignior, in settling the amount of the indemnity to be paid to him. The enforcement of this right, agunst the proprietors who have ])urchased their seigniories with a knowledge tliat it had never been exacted, and under the belief which was universal in the country, lliat it never would be, would certainly be a hardship and an injustice. Of course I do not coui])rcli(.'nd in this view the relief duo under the Custom of Vcxin Ic franrais included within that of Paris; as will appear by the answer prepared on the subject, in which I im joined by Mr. .Justice Meredith and Mr. Justice Badgley. (1) Ed. ct \)i2Z, da H')i p.ir (jugnct, p. ;">. 60 c The next question is one by Mrs. Bingham, on the ex- tent of the powers of the seigniorial eoinmissioners, to du- clare eontracls between the seignior and ccnsitaire null in whole or in part. The answer of the majority of tht; Court is in these terms " Such commissioners may not lawfully " assume to treat any contract or any clause of any con- " trat such as is in this, and in the last preceding ([ucstion " enquired of, as being null, unless such nullity has been " pronounced by the judgment of a Court of competent ju- " risdiction ; or such contract or clause of a contract has been " declared illegal by the decisions of this sjjccial Court." In this answer I concur. I am satisfied from a careful read- ing of the seigniorial act with reference to this subject, llial the powers of the commissioners to treat contracts as void, do not under the provisions of that act, extend beyond the limit assigned by the answer. To go further, would be to as- sume that the legislature has conferred on them the juris- diction ol the ordinary Courts of law; and each claim of a seignior, and every concession deed of a censilaire might be made the subject of contestation with respect to the general validity of its stipulations. It was to prevent such an ano- maly that this special Court was created, to settle all the points of law which might probably present themselves to the commissioners ; and their authority, I apprehend, can go no further than to apply to the contracts produced, the rules established by our decisions. If the censitaires were or arc desirous of having any stipulations in their deeds reduced, upon grounds other than those settled by this Court, they must resort to one of the ordinary Courts, and produce be- fore the commissioners the judgment of such a Court for their guidance. In all other cases the commissioners are bound to observe the stipulations made by parties, as legal and binding upon them. There is one topic more, upon which I must bestow a few words before concluding, in order to justify the position 61 e which I have taken with respect to it (and in which 1 am imsui)|)ortc(l by llic other members of the Court). It grows (mtot'tiie fourth supplementary (jucstion submitted by INIrs. Ilarwood in tliese terms, " can any commissioner or com- " missioners lawfully assume, within either of the two •' classes oijlcfs or seigniories encjuired of by the first pre- " ceding interrogatory, to enforce upon the seignior or upon " any ccnsitaire thereof, any coojicration on tlic part of any " such seignior or censilaire in any proceedings under the " seigniorial act of 1854, if such seignior or censitaire shall " elect to maintain the application of the said lmj)erial Sta- " tiite in the premises ? and if so, to what extent, and how " may such eooj)eration lawfully be enforced." The classes of yte/Jf and seigniories alluded to in this question, would embrace all the lands held under the feudal tenure in the province ; and the object of the question as understood by the Court, is to obtain a decision whether the Seigniorial Act" of 1854, is in conflict with the imperial statutes, com- monly known as the " Canada Trade Act," and the " Canada Tenures Act ; and whether it can be defeated or restrained by those acts. I have declined to give an answer to this ques- tion, on the ground that it is one, which under the provisions of the seigniorial Act cannot be submitted to the Court ; and upon which it is our duty to declare that we arc without au- thority to answer it, That this question lies beyond the scope of the powers committed to us, arid that a decision upon it involves an unwarrantable assumption of authority, may, I think, be clearly demonstrated. If we were sitting here as an ordinary Court of law, without doubt it would be competent for us by virtue of our general powers, to de- clare that we had no jurisdiction, by reason of such a con- flict between imperial and colonial legislation as this ques- tion supposes ; but here is no question of jurisdiction, for whatever might be the decision upon the effect of these im- perial statutes in preventing the abolition of the feudal vi ■:.■ fii e '■ { Irnure in the manner (^nacfed by the Seigniorlai Act, th«> pro vinciiil parliimient had ecrttiinly, in any cast', the liirlit to impose upon the jiul^ew here the s))eci(ic duly of aiiswciin'; (jiieylions on subjV'ct.s connected wilh that leniiri! ; and thi^ duly they nuist jxn'Ibrm, even though it ^ve|•e ))r()l)able, or t'crlaiii that their answers inii,dit lie rench'rcd us(dess hyxmic eonllieting hiw emanating' iVom the parent state. Ihil we an; not now sitting witli the powers oC an ordinary Court, forit is undeniable that this Courl is a purely exceptional oih'. Its j)owers are limited to the precise; mailers connuilted to it by the statute, and cannot by i-onstruction Ix; exleiided tn nny other matter whatever. The delinilion and nicasuio rl these j)o\vers are to be found in the provisions of the IGtIi sec. of the act, which are in the following terms. " H. M. Attorney General for Lower Canada, shall as soon as nitiy b(; practicable, frame such ([iieslions to be submitk'd lor ihf decision of the judges, as h(! shall deem best calculated to decide the points of law which will, in his oj)iiuon, cnme under the consideration of the cominitisioners in detcrrninin!; the value of the rights of the Crown^ of the seignior and of the censitaire; and by the fourth jiaragraph of this same sec- tion, any seignior may submit supplementary or eountrr (piestions, which must of course relate to the same niiiltor. Now it is to be observed in rcAn-encc to the ol)ject ol' the questions to be so submitted, that they must be for the pnr- j)ose of deciding points to guide the commissioner in a par- ticular matter viz: in determining the value of the rights q( the Crown, of the seignior and of the ccnsilaire ; and not for the purpose of instructing him us to the seigniories in Avliidi he is to exercise his functions. That point the act has de- termined by making its provisions of general ap])licatj(m to all fiefs and seigniories, and then in the 2nd ".nd oo\h >ec- tions, specifying those which shall not be inciiided. And in order that no difficulty may arise, the Governor is aiiilic- /iscd by the 4th sec. to assign the seigniory in and forwliicli 63 a i.-ncli oommi^sionpi' shall act ; anil by tliu jtli sec. ilic com missioni'r is rciinircd to act in tlic seigniory thus assigncMf to him. 'riicn; i>. not an expression to he; lourul in any part ut'tlie statiile, which in the slightest degree \varr'»nls iIk? oj)inii)n, that this (Jonrt was authorised to declare to what f-i'igniories its provisions should apply oven under its own tcriiis. And if the o!)je(;t of the (piestion under (considera- tion, were merely to draw forth an opinion from this (,'oMrt, wlictlicr the seigniories referred to in if, are within tlie pro- visions of llu; Seigniorial vVct according to its own terms, it Avoiild even then for the reason above statiMl be inadmissi- lilc. But the (jiieslion goes a great deal further than this, and seeks to oi)tain a decision whether the Seigniorial i\et is not so completely controlled and invalidated by iIk; Im- perial Acts, that it can have no operation for the abolition of the f<'ii(1id tenure in any seigniories at all, or in other words whether it is nt>t in that respect an absolnte nidlily. Now njjart iVoui the argument founded upon the specific expres- sions in the statute, can it be believed that the ])rovincial pavliainent, in constituting this special Court, for defining rules of law to aid the commissioners in carrying out its ciKictiuents, has by legal im[)lieati()n committed to us also ajiowor 1o declare that these enactments arc themselves an iw'.rpaiion of autliority, and absolutely void ; and thereby instead of aiding in carrying out the l)eneficial purposes of ilio law, to defeat it altogether? Do we now hold this power to judge the law and the Icgislatiu'c, and has that body vo- luntarily divcsteditself by the Seigniorial Act of ifsfrmctions of judging whether its own statute is legal, and transferred l!io oiiicc to this special Court? Yet such is the power ^vllich the Court in answering this (question, seems to mo necessarily to assume. It is true the majority have allir- mej ihc validity of the statute, but this makes no (lilli'rene(> i'l the principle; for if they have authority to decide that the ^ct is valid, they have it equally to decide that it is void. 64 e Being, therefore, under the convielion tJiiit an answer on this point is a manifest excess of autiiority, I liave deem- ed it my duty to decline the expression of any decision njion it and to record the following answer to Ms. Ilarwood 4lh supplementary question. According to the terns of the Seigniorial Act of 1854, AW fiefs and seigneurics fall within its provisions, with the exception only of those specified in the 1st and 35th sections of the act as amended by the seigniorial amendment act of 1855. The two classes of ^^s and seigniories referred to in this supplementary question are not included among these exceptions. The judges in this special Court have no au- thority or jurisdiction to decide whether the provisions of the seigniorial act in relation to any class of fiefs and seig- niories are defeated and annulled by the imperial acts com- monly called the " Canada Trade Act " and the " Canada Te- nures Act." I would not have it understood that I have adopted this course in order to avoid the expression of an opinion adverse to the validity of the statute, for it is not so ; but being convinced, upon grounds which appear to me to be perfectly conclusive, that I ought not to render any decision upon that point, I have refrained from maturing any. I have thus disposed of all the details of the important subject before this Court, upon which I have deemed it ne- cessary to explain and justify my opinions. In forming these opinions, my grand rule has been, as aX the beginning I declared it would be, in all cases to maintain the integrity of contracts, unless a settled principle, or an express law ol no doubtful meaning declared them bad. The impcrfeet manner in which the task has been performed must be, in soino degree, ascribed to the difliculties which surround it i 66 e and which expand and multiply the more nearly they are approached. I cannot disguise from myself an apprehension which the experience of tiiose difficulties has taught me, that the time within which it has been deemed necessary to termi- nate our duties here, has been insufficient for their complete and satisfactory performance. More protracted study, and larger conferences with my brethren might have unravelled many perplexities and dissipated many obscurities, and all the minute, yet important ramifications of the subject might have been more fully investigated and more safely settled. The mere declaration of the law under the numerous questions proposed, upon a system which may almost be paid, rather to be suspended upon irreconciliable and balan- ced conflicts of opinion, than to rest upon settled and uni- versally recognized principles, is of itself a labor of formi- dable magnitude : but it becomes far more serious when joined to the fact, that upon our decision depend the fortunes of a large class of our fellow citizens, and the efl'ectual car- rying out of a legislative measure for a great social reform. It is to be hoped nevertheless, that for all practical pur- poses, the performance of our arduous taslc, in view of con- sequences so interesting, may produce results corresponding- ly beneficial ; and that we may see this cause of complaint and discontent which has so long agitated the country, at last justly and peacefully disposed of. The feudal system like many other things, has outlived its age : for there is a decrepitude in human institutions as in the human frame. Each fulfils a mission, and, when its purpose is accomplished, must give way to the new ideas, and the new men which time and social progress, or at least social change require. This ancient institution, in its in- ception in the province, was undoubtedly good : by the re- 1f 'i 66 e volution of years, and the change in the universal constitu- tion of socic^ty, it has become as undeniably bad. But wo are not to charge the sin or misfortune of its old age, upon the present generation of seigniorial proprietors. The public interests demand the abolition of the tenure : but public \irtue and national character demand, everi more imperati- vely, that all private rights Invaded by its abolition, should be carefully ascertained and amply provided for. Allusion has been well and eloquently made by one of the counsel, to the contrast between the peaceful action by which wc are dealing with this system, and the convulsion and bloodshed, which elsewhere have made its disappear- ance so terribly memorable. We have the high privilege of teaching by example, a lesson of moderation and of right, to communities far older and more powerful than our own ; and I trust that the statute book and history of our countn- will bear noble testimony, that no feature of spoliation deforms the great movem'^nt, by which its people have shaken off this dusty burden of the })ast ; and calmly, wisely, with- out tumult and without injustice, have revolutionized and readjusted its whole complicated system of territorial la^v. " t DRAFT OF ANSWERS REFERRED TO IN THE FOREGOING OPINION. No. 1. Answer to 18th, 19th and 20th Questions of the Attorney General. '■^! Every law which establishes rules for the governmeni of a people upon matters of common interest, is in a greater or less degrei! one of public policy, (Tordre public. The laws referred to in these questions were (Vordrc public, in so far as their object of promoting the settlement of the colony was involved, but not as to the particular means by which that object was to be carried out. Parties could not by private contract defeat the object of the law, but they might by contract promote its object in a manner different from that prescribed by it ; provided such contract were in conformity with the fundamental rule? of the tenure. (Signed) CHS. D. DAY No. 2. Answer to the 39th Question of the Attorney General. The reservations specified in this Question, under the numbers from 1 to 8, are legal ; but the rights of the sei- ii: if 'I ,1^ ,1 ■■ 68 c gnlors under these reservations must always be so exercised as not to obstruct the clearance and cultivation of the land of the censitaire. The claim of the seignior to be indemnified on the suppression of these rights is subject to the limitation above stated and must depend upon the circumstances of each case. (Signed) CHS. D. DAY No. 3. ': I Answer to the 41st Question of the Attorney General. Prohibitions of the kind enumerated in this question, are not always and of necessity illegal, and the seignior may have a right to indemnity by reuson of their suppression, if he have in them an interest appreciable in money. If such prohibition and interest do not fall within the denomination of a seigniorial right, it will of course not be subject to the operation of " The Seigniorial Act of 1854." (Signed) CHS. D. DAY 60 e No. 4. Answer to the 44th Quastion of the Attorney General. The lucrative rights of the Crown, as seignior suzerain^ established by the Custom of Paris, are the rights of (Ixiint and the right of Relief. In the schedules to be mado in virtue of the Act of 1854, the value of the right of Quint ought to be deducted from the price to be paid by the censitaires to the seigniors for the redemption of the seigniorial dues. With respect to the right of Reliefs it does not appear that the articles of the Custom of Paris relating to it, have ever been formally abrogated. But from the long continued dormancy of the right which has never been exacted, (except when due under the Custom of Yexin le Frangois included within that of Paris) the Crown must be considered to have intended a virtual abandonment of it. The right of Relief therefore ought not in our opinion to be included among the lucrative rights which are to be valued against the seig- nior in settling the account of indemnity to be paid by him. (Signed) CHS. D. DAY H !■ i'l^:. ERRATA. ill ": fi Page 1, line 14, in lieu of exirat^ read : extract. 4, line 3, in lieu of orduous, read : arduous. " line 6, in lieu oipradial, read : practical. " line 35, in lieu of not one man, read : not of one man. 5, line 27, in lieu of and abuse, read : an abuse. 6, line 1, in lieu of and order, read : an order. " line 10, in lieu of connot, read : cannot. " line 19, in lieu olhistorial, read: historical. 8, line 30, in lieu of beaux, read : baux. 18, line 33, in lieu of by ormation derinfived from en- ternal, read : by information derived from external 19, line 22, in lieu of domain, read: dominion. 20, line 14, in lieu of than more, read : more than. 21, line 21, in lieu of whole colony, read : colony generally. " line 31, in lieu oiunvarging, read : unvarying. 22, line 7, in lieu of concession, read : concessions. " line 15, in lieu of of law, read : of the law. " line 20, in lieu of unvarging, read : unvarying. *$ : (■ 40, line " in lieu of exclusiveleyy read : exclusively, " line 20, in lieu of covers read : can cover. " line " in lieu of theSy read : this. " line 28, in lieu of tranquillity, read : the tranquil- lity. " line 30, in lieu of On, read : The 60, line 1, in lieu of Bingham, read : Harwood. 64, line 6, in lieu of terns, read : terms. " line 27, in lieu of grand, read : guiding. ti !l !'' ,t: U 3 ■'■iff , INDEX. Page, Preliminary remarks j ^ 1st. Division i ^ 2nd. Division , 9 ^ 3rd. Division , 49 g Mill Banality , 54 g Droit de Reli^n ,,,.,,.,,.,. . .*....,,..*.,. 58 « ^ ^ i 1/ OPI^UON OF THE IIOIOPiABLE MR. JUSTICE SMITH. % \st. Question, — What is the lendal system of Canada ? I tako ii to b<; undisputed, that, when the F'rench CnAvn took possession of this Country, l)y right of diseovery, it fell into aii.l formed part of tlic Public Domain of the Ciown, to ho clisji()S(nl of by the King, by gnnt, under such tenure, and uiid.'r such eonditions and limitations, iis he thought proper The ('migration of the inhabitants t»f FrancL' to this ('ountry lor the purposes of trade, or for oceupation of land, did not :4 ol itM'll'introduce any particular form of tenure ; for, the; in- trofhu'iion ariii establishment of any partit-ulur tenure, mu&t be the aet of the Sovereign himself. The King, therefore, when he determined to found a powerful colony in New- France, as Canada was then called, made grants of land to be held en fief et seigneurie, and the condidons and limita- tions, in these grants, imposed by the King for the great pur- poses which he had in view, constitute the origin oi' our feu- dal law in ('anada, and in these conditions and limitations, will be tbiind, those essential ddleri'nces between the tenure en lief el seigneuric, as it existed in France at that time, ar-d the lennif as it was introduced into Canada. P^or the pur- poses ol the argument it is not necessary to go further back than the grant to the Company of New France in IGC7— 28. ir his grant, will be found the first great modification in the Wnurc, us u existed iji France. f* ^ / 111 jl, the iiilculiojis (>( the Kiji^ ;ii(! ck'arl) -^liUt'il, uliK ' intiuccil him, luil only lo revoke; all i'oniicr i,Mants, by liiiij iiiiido, but to grant lo this body so large an extent of tcniiinA in iIk; Country. It is only necessary to stat(.' here that the |»a vioiis grantees of the Crown had allogetli(!r faik'd in eanviiiL out the great object of the King, namely that of foimtliiiL; ;• powerful (polony, and thereby, of aggrandizing the Crown d' France ; that they had sought only their own inttMcsis in trading with the natives of the country, and ha ^Munls (Ajiifvl inigneuric luudc Ity llic (iDiiiprmy of \cw-Fnuuu', cxlciuliiiijf down lo tin* year IGGJ, when they ^ they thiiii;.'!,' proper, and impose snch conditions as they tlicaight proper, m distributing, hut it cannot he contended lor a uiorneiit ilii* such p p'-t'tentiou is borne out by the grants themxlvt ^ Thes(! grants were made to cany out the great ptditirai objects of the Crown. Th"\ were free grants to the M-icniors but charged with a eoiidiiion. 'i'lie Company ol \t ,v France, in undertaking the setllemenl of tl:e colony, as>iiii)r(| thi^ obligation, and this obligation ihey likewise imposid on their own teudaiories. To hold that tliese seigniois wf-c not bouiil l(^ (lislilldite, would be to hoM that they, as siib- feudatories oi' the (Company ol' New France, were nt)t hdiirid by the oljligatiou imposed on their own grantors, and winch was the great object sought to be attained by the Crown in making the very grants, a positii)n entirely adverse to every principle of feudal law — for tlH> grantees of the Crnwn could not, by subgranting their lantls, either destroy or in any way weaken the feudal obligations which had thrir existence in the very title under \vliich thev held. It li;i-i also been contended that even if th(^ distribution of the hinds had been so imposed on them, that it did not necessarily follow that this was to tje done by concession and by cdn- cession alone. This position is also untenable. What is the meaning of the worils dislribuer et cull'ivei\ el Iwbiler it tenir feu et lieu, so often employed in feudal langiuii:e and as applied to the tenure en scigneurie. It necessari'y implies that that form of alienation shall be used, which i in harmony w'ith the title of the grantor, and the legal oifsprin;,' of the tenure itself. Can it be contended that an order to distribute land held en selgnettrie did not imply from the very nature of the title of the holder iiimself an obligation to concede. By \yhat other title could such lands be distri- buted ' The principle of the feudal laws is, that a seignior I I li' In disposing of his fief, (I dont mean of the whole as a whoU') shall retain la direcle. Can this be (K)ne by a sale of lands ■' Can it be done by a lease of them or by the ciii|jl( vrnent of labourers and servants ? It is clearly impos- sible. K(n be enforced and how^ can such ownership be given by any other mode of conveyance than liiul of concession. I speak of absolute sales or of aliena- tions equivalent to sales, for such are in fac^t advcrsi' lo the tenure ; the taking o(denicrs Wenlrcc wiil be spoken of hcre- alier. The feudal character of the conveyance must be pre- served. The links in the chain descending from the Crown must be preserved. The seignior in alienating his land iiuisi preserve its feudal character. Any other form o*" alie- nation would be a breach of his feudal contract; and alienating his land by a form of conveyance adverse to the tenure by which he himself held, would be as much a violation of his feudal contract, as his holding the lief in his own hands and refusing to alienate at all. The grants from the Sovereign were made to advance the great political interests of the Kingdom, the lands were freely distributed by the Comjjany of New France, in pursuance of that policy , and the seigniors in accepting these free grants were as much bound to carry out this policy as the Company itself ; and the revo- cation of all grants by the Crown before 1627, for neglecting to carry out this policy, demonstrates beyond the shadow of a doubt, the existence of this obligation on the part of all the vassals of the Crown. Down to the year 16G3, this obli- f,'ation lo concede is sufficiently visible from the nature and the terms of the grants themselves, and in the clear langua- iHi used by the Crown in announcing its settled policy, and in imposing this obligation. But after the surrender by the Company of their rights to the Crown of France, and in the (•onre>;si(in to ihc ('((inpaiiy ul' llic West Iiulics, iind in ilif «:ubs('qnon1 ^raiils by the Crown of lands vn fh'f vt Hi'ii^mu- ric in llie Colony, this settled ])olicy and ohligaljon an* in ihr strongest language pointed out, and the various reunions id llie Crown ibr delault of enrrying out this policy, and of fulfilling this obligation, shew in unmistukeable language, the determination of the Crown to enforce this policy; in fact every legishitive and judicial act on the part of ilic Crown, by its officers in the colony, shew that the obscuvini; eye of the Crown was never closed for a moment on this important point, and that it was an admitted princi])le o\' the feudal law of Canada, that it was obligatory on lln' sci- ,gniors to concede their lands en seig}ieitric, for if it hit.d not been so, something would have been found in the archives of the country, to show that such a pretention had been de- nied or resisted by the seigniors; on the contrary overythiiiif tends to prov(i that such an obligation was universally re- cognized. This then is the distinguishing feature of the: feudal law as it was introduced into the country, by 'he Ki'i;r, and it constitutes one of the marked distinctions between the feudal hnv of France and thai of Canada. .. I !n France, before the reforinalion of the Custom of Pa- ris in 1580, the seignior could dis|)ose of his fief '•'■joucr d faire profit de soiijiefiis he thought; proper ; there was w limitation or restriction to this privilege, lie could sell ov exchange or otherwise dispose of his lands, or retain than in his own hands as he choose, provided he retained soim' evidence of his own feudal superiority, viz: la direcle. IJut by the 51 and 52 articles of tiie (reformed) Custom of Paris, this unlimited power was restrained, and from thcnceloitli, lie could dispose of two thirds only of his fief, preserving, as before observed, some evidence of his feudal superioi'ily, viz : la dirccte. If h(^ iransgressed this rrde, -without the cuii 7/ m'jU of lii:^ seignior dominant, lie wii.s subject lu ccriuin lei;- (hil penalties imposed by the Custom, but in all other res- pects he was perfectly free and uncontroled iji the use or abuse, as it was termed by feudists, of his ficf. Tiie autlio- rilies which have been cited, establish this point of french Iciulal law, and tlie authors are unanimous on this point. The only limitation was the retention of la direde, on the portions alienated. For without the retention of la directe, it would have been a dcniembremeiit defief and would have siibjecled the vassal to the pain and penalties imposed by the 51 & 52 articles of the Custom. It is not necessary to enlarge on this branch of the subject under the law of France; It is a well settled point of feudal jurisprudence and is sup- ported by the authority of the most eminent feudists. It is also a well settled rule in french feudal law that the sei- gnior in France could, in conceding his lands, (which in 110 instance was obligatory on him ) concede them on such levms as he thought proper and in addition thereto, lake money for the concession, to use the language of th(; authors, lake dcnicrs d^cnlrec, or entrance money. Now, was it the intention of the King to introduce into Canada the 51 & 52 articles of the Custom of Paris and to permit the sejgniors in this Country dc jouer de Icurs fiefs, in oilier words dcfaire profit dc Icurs fiefs, in the words of ilio law, disposer ctfaire son profit de toutesles parties utiles vtfructueuscs de son ficf? Of course, I do not refer to the pi-ofU (Icfiefov dues which accrue to the seignior when the alie- nation exceeds the 1w(< thirds, but of the profit which the vassal was permitted to make of hh: lief. It is un- !leniabl(> that the privilege granted by the law of France 10 seigniors there, under the 51 & 52 articles, was to /'aire profit dc Icur fief, "to sell and dispose of them for what iliey could obtain, subject only to the limitation, that such y>(/ f/f; ./?('/' sliould be limited to two thirds of it, and thai a 'lircrlr should be r-'lained on the |)urt alienated. Did thru 8/ the King, in making his grants in Canada, intend to give this privilege to the seigniors here, that they rrJght make profit de lews fiefs as they might have done in B'rance ? The King by imposing the obligation on his vassals of conceding and distributing their seigniories, without limitation, necessarily surrendered his right as Sovereign Lord, to his dues, when this alienation by concession exceeded the two thirds of the seigniory, which he would and could have claimed under the 51 article of the Coutume. Is such a privilege at all consistent with the idea of distributing the lands to settlers and this within a given tune on pain of forfeiture of their estates? Was it simplythe in- tention of the Crown to remove the restriction imposed by the 51st article which permitted this Jew, to extend only to 2\^ of the seigniory, and thereby to restore the law as it exis- ted before the reformation of the Custom in 1580, by which no restriction whatever was imposed on the seignior. Provi- ded he retained the outward form of the alienation, which should be by concession alone, he was at liberty Xojouerde son fief ^ with perfect freedom in the conditions on which the alienation should take place. By the Custom of Paris, this alienation could take place by sale or otherwise, provided only a directs were reserved. By some other Customs of France, xhejeu c?e^p/' was permitted only by sub-infeudation or concession, and all other modes of alienation were con- trary to law and no deniers d''entree could be exacted. But even by these Customs, the seignior was free in fixing the terms on which he would concede. The restriction under these Customs, was only, that the Jeu should be by conces- sion and not otherwise. Was it the intention of the Crown to abroofate the Cus- tom of Paris for the sole purpose of substituting these other Customs, to take away the power of making sales of land and taking of deniers d^entree, which was the prix de Palie- nation, but otherwise to allow this price or value of the land 9/ to be takon in a concession of the land. (1) To \vhat purpose change the mere form of the conveyance if profits de fief could still be taken by tlie seignior ? The settlement of the Country v.-ould not have been advanced. If the Seignior could have taken profits de lief under the concession as he might have done under the 51st art. of Paris ; and instead of taking f/e?u"ers d^cntree he had taken these projits in the shape of a rcnte^ \\iiat change Avas effected ? none whatever ; and the obligation to concede was thereby rendered utterly inoperative. The obligation to concede must mean that no profits de fief conld be taken, and if so, a mere change in the form of the alienation A\ilhout this res- triction would have left the seigniors perfectly uncoiitroled in the disposition of their estates and would have rendered (he obligation, as applied to the alienation by the vassal of a forced concession, altogether illusory. Jf so, then, by the law of France under which these grants were made by the Crown, the seignior here could jouer de la tofalifi'; de son fiej] provided only he did so by concession. In other A\-ords the seignior, if he fulfilled the obligation ijnposcd on him by his feudal contract, namely that of conceding, liy retaining the mere form of the conveyance, he m'ght faire profit de son fief as he best might. If so how could the settlement of the Colony have been efleetually carried out ? If the cmigrauls who were induced by the French Government to seek a home in the new Colony had been obliged 1o})m-chase lands instead of obtaining a quasi free grant of them, which they would have been compelled to do, if the jeu de fief in its true meaning, that of making profits de fitf liad been allowed. Such a permission is to my mind interly incompatible with *he obligation of a compulsory concession. The obligation fo concede on pain of forfeiture and the liberty of making profits de fief cannoX co-exist. It is no argument to say that the seignior might make jJroyf7,s' rfe^/V/, if he only fulfilled (1) Henrion de Pansey, vol, p. 2 10 / fiis jciuhil (>l)li<^ali(>ii ill coiiccdm^, lor liinl would he id v,, late his obli^ationlllll■^ not exist. ., • In the hiW', as it stood bclbre liie passing ol the Arrclxd, 7)i«>72/, 1 his obligation eonld only be enforced by die .siiz( vain himseli'. But by lliis Arrel, the King provided a i' luedy I'or llie settler, and enabled him lo enforce this v\)\'i-. lion by a direct appeal to llie tribunal created for ihai pm pose. This Arret shews clearly and willioul the power i, doubting, wiiat the obligation of the weignior was, as llie vi^ sal of the Crown. lie could be compelled to concede ii ihn Court w^ould concede fur him, if he refused. Is sncliai: obligation consislent with ihe right of selling and disposini; of his fief as he chose" lo make projUs de son //<;/.'" I cannot think it is. This, in my opinion, is the most iiii|iiji- lant modification which the Feudal law of France uiuui went on ils introduction into Canada. Tlie 5 J si and 5,V articles were modified necessarily in this, that the Sovereign Lord should not be entitled lo his profits dc fief or i\w\ wdien the alienation by the vassal exceeded § of his fifl, But on the oilier hand the vassal ])y being compelled lo concede on pain of forfeiture, was dej)rived of his powcrti fair e son 2) rofit hy Hale or ollicrvrisc. For the ex})lanaliotb given by the King of ihe Arrets de Morly shew, llial ili'' meaning of llie obligalion lo concede was, thai it should be a simple Hire de rcdcvancc. This simple tilrc dc rcdcvono must mean one of Iwo things, it eillier means a legcr aiis. ihc mere recognilion of llie Feudal dependency, or it mean- that if riie form of llie conveyance be nMained, lliat ilu rcdevaace should be in j)ropor1i()n1olh(' value of ihe land ;iii'! as it was in France, and should be whalever was slij)ul4liii)r, led' its it li.is hcfii ali'ciulv t)list'ivr(.l, riccdoiii ill lixinu' till' I'Tiiis I t cniices:.).!!! and an ahsoluU; ohlii^atidii lo I'diict'iln ;;n: in llicir very naliirc opixised lo -Mcli oilier, 'i'lit; Ari'r!. ol" 171 1 cHlablislios llial llic lakin^ ui' iiioaoy wiiti tlio cDiicossiun and tin; imposiiioii ol" charges more onerous ilian the cen,s, a aituple Hire de rede- iHince^ were a violation of llie Feudal eontract, and were illegal, and i! is diiiienlt lu understand liow llie imposilion of a rcni.c substitnled for money and exorbitant in its na- ture and beyond lla.' cens ordinaire ct accoutuma and lUikiioAvn to the counnon law of Franee, could be con- sidered as legal and not in its very nature fundamentally (apposed to the very condition of llie original grant. Fre- ininville 1 vol. p. 10, says ; " Le bail a cens est-il suseep- " tiblc (le toutes sortes dc clauses ? " Answers: " Oui '' par la raison (pie comme il est libre a celui qm domic, de • donncr on de ne pas donncr^ il lui est permis d'imposcr u '' sa domUion, telles charges et conditions que bon lui sem- '' Lie. C'cst au j)reneur a les accepter ou f\ les refuser en " ne prenant pas I'heritage, et ainsi le bailleur et le prc- '' near ont la meme faculte, Tun dc /aire la loi ct Tautre '' (tela refuser^ I'aceoptalion par I'un de la loi faite par " VuuU'e assure la jjcrfeclion da bail a cens." 1. iirodeaii sm- Paris, Nos. 2,3, p. 531. Same authority in llcnrion de Pansey &c., Nos. 11, -1^, regulated by usual rales in sei- gniory when no contract is produced. \Vas the Seignior here permitted de /aire la loi in making his concession ? If he could, then he must of n(!cessity have the right of re- fusing the concession, if the stipulations oirered by him In the bail a cens were declined. If so, then his grant could iiut have been charged with any condition, but it must have been his absolute prv'pnrty. That every colonist must first uy and make an agreement with Seignior who was master in the fullest sense of the estate, and if he could not agree, then to coerce the Seignior by a law suit. Certainly a most f'xtraordinarv way of settling a colony. i- (■ i-i' ■. i 12/ As this branch of the argument will more properly fall under consideration when the conditions under which grants en censive may be made in Canada, I will not further allu- de to it here. The distinction therefore to be noticed between the feu- dal law of Canada and that of France is Istly. That the Jeu (le Jicf was limiU'd in France to § of the iief, while in Cana(hi this restriction was removed. 2dly. The Jeadt fiefw'ds obligatory in Canada and voluntary in France. 3dly. That f^uch Jeu de Juf was to be efFected by subinfeudation and concession alone d nan^ /aire profits de sonjief. In discussing this important branch of the matters sub- mitted to the consideration of the Court, I have not trans- cribed the various documents which may be read in sup- port of the view I have taken, that, by the feudal law of Ca- nada, all seigniors under the French Crown were bound to concede their wild lands to all settlers demanding them. To do so, would b(; to write a history rather than to decide ju- dicially. I have therefore touched on these matters and ex- tracted therefrom those portions which in my opinion are sulficient in themselves to base the reasoning: on which I have come to the conclusion, that the seigniors were bound by the law of Canada, to concede on pain of forfeiture of their estat(^s ; giving only the references to the Edits and Ord. and other documents. Before leaving however this branch of the subject, it may be necessary to remark that, some time before the sur- render by the Company of New France, of their charter to the Crown in 1663, the Custom of Paris was introduced in express ierms, and declared to be the rule of decision in all cases in the colony. But it is manifest tjiat its intro- duction by the Iving was never intended to nullify all his pre- vious grants in the colony, ar ^ *o defeat the whole policy oi th(i Crown, by removing liiai restriction from his grants, 13/ which was the very keystone of the superstructure which he was so anxious to erect, and without which it is clearly impossible that the colony could have been peopled. For, if tho Jeu de fief hy concession alone in Canada, after the introduction of the Coutume de Paris in express terms, ceased to be obligatory, then by what authority could the King have enforced the obligation ? By forfeitures of the es- tates of the grantees ? To suppose that these forfeitures were an arbitrary and tyrannical act, justified neither by the law nor the express obligation imposed on the grantees themselves, would be to disbeleive the evidence which the whole history of the country has furnished on this point. Assuming therefore that the Jew de fief was obligatory by concession alone, and this on pain of forfeiture of the fief, it is now necessary to determine the nature and charac- ter of the contract of concession, contrat d^accensement, which the seigniors in this colony were bound to grant. Was the seignior free to stipulate, or was he, in the concession itself, fettered and restrained by his feudal obli- gation, as assumed by him in receiving the investiture of his land. It has been assumed as proved, that the seignior was bound to concede ; that he was bound to do so within a limited period varied by the various periods mentioned in the Arrdls de retrajichement, and this on pain of forfeiture ; that tills obligation was imposed on him to carry out the declared and well recognized policy of the Crown ; in fact it was the condition sine qua non the grant would never liave been made. That it thereby became, and it was so considered, a condition of the feudal grant and an express obligation of this feudal contract. Could he be, by any isystern of reasoning or by any legal or logical deduction, free and independent in his power to concede ; that is, in the stipulations of his contract of concession ? That is, could the seignior impose at will the terms on which he would 14/- :ilifii;iU; his land ' As ii iiicrr iiiutler ol reason iiiij;, ii would nppear that such a power was inconsistent with, and in direct opposition to his clearly expressed obJic^alion. It iv morally impossible to reconcile the idea of jx'rfect IVcedom in the terms on which he would concede, and an absolute obligation to concede on pain of lorCeilure. For on wliai principle could he b(> comp(dled to concede, ii" he could n;- iuse llio concession, if the terms ofjered for it were not asjrca- ble io him ? The mere time allowed to him by the various arrets ik relranchcment cannot alter the principle. For this only the more forcil)ly pointed out tlui obli<^ation which he had a-^- sumcd in taking his grant. He had undertaken to settle his seigniory and it was his busin(;s to av(>rt the penalty imposed, by fulfilling his obligation. It is no argumenl to say, that as he was compelled to cHect settlement within a given lime, and that, from the necessity of the case, he was compelled to take such terms as censitaires would agre*; to, that it was only an element in the general obligation to con- cede, but did not therefore hy law compid him to concede, on such terms, and that once his obligation of settlement was fulfilled, his wliole contract was fulfilled, and he miglil tlicrcforo make such terms with his censitaires as he could obtain by agreement, provided actual settlement was the result. Such an argument would lead to the conclusion that there was no other thing to be considered, than the efibct of the feudal contract in its relation only to the Crown and the seignior; but if the higher considerations involved in the (juestion are •examined, and the public policy nntl great objects wliich the I;ing had in view, in making \\\^ feudal grants and imposing this condition, fir the benefit ol his subjects emigrating from France, are taken as an ele- ment in the solution of it, then not only the King as the feudal d(Mninant of the seignior, and the seigniors as parties yond all controversy, that the King, their feudal Do- minant intended to secure to these emigrants, the possession of lands on terms similar to those which had been imposed on the seigniors themselves, viz: on ordinary not extraordi- nary terms. This of necessity involved the right of deman- ding these lands from tiie seignior, and if the demand was a legal right, which could not be refused, then the seignior liad no option in the matter. In familiar language the case may he thus stated : True it is, I have a free grant of a large tract of land in fief. My obligation to the Crown is purely nominal, ybi et hommage, and a nominal rent, as a mere recognition of my feudal vasselage. This grant has been given to carry out the great public object of the Crown, that o[ founding a powerful colony. It has been made on the express condition o[ disfribuling these lands among setthu-s ^^^ bring I hem into value. This distribution must be jiiad(> hy coneessi(m, as that is the only mode by which the distri- bution (!an 1)(,' made under the tenure, and this concession iimsi be made on pain of forfeilnre. Hut as the common .aw of France permil.> me lo make mv own terms in eonce- 16/ ding the lands et /aire profit du fief ; therefore I will only concede if the terms are agreable to mc ; and the King may if he choose inflict the penalty, not for refusing to concede, for I an willing to concede, but because I cannot agree with the censitaires on the terms of the concession- But as by the arrets de retranchement a certain time must elapse before the penalty can be enforced, I will there ft)re make the Crown wait that time, before the penalty can be enforced. Under the despotic government of France, I should like to know as a mere matter of curiosity, what answer the King would have made, to a seignior using such an argument, I have looked at this question simply as a matter of reasoning, without reference lo any thing which may be found in law or documents sultmitted on this branch. Let us now examine the question in its legal aspect not only with reference to the law of France, but the law of Canada also, anterior to the arrets of Marly. It is no doubt true that under the law of France the contrat d^accensenient was a matter of agreement between the Seigniors and 'l/ensitaires, the rights of both parties were coextensive with their stipulations. There was no law to restrain either party in making his contract. This is unde- niable from the authorities which have been cited. ., i But it is equally undeniable, that when there was no agreement to regulate the rights of the parties, that the com- mon law established this rule for them. This rule was the modicum canon of Dumoulin, the greatest of feudists. It was simply to mark la directe, an indication of the lordship of the seignior over his vassal. It was always small, not intend- ed in any way to form a revenue, but it was in the language of feudists, le vrai cens, le cens ordinaire et accoutiimc, la marque recognitive de la directe. It is true that whatever was stipulated at the time of the first alienation of the land. 17/ as the consideration of tlio contral (Vacceivicment wns i si- dered as ce;w, and was enlitlcd to all its privilc^'es, bn lis did not ailiict tfie dislinctioii wliitli always oxis^lod between the cens as stipulated, and the cens as rcij^ulatedby the com- mon law in the absence of any stipulation, (u) This being the common law of France in relation to concessions en censire^ at the time of the introduc^tion of the feudal system into Canada, did it become ])iirt of the com men law of Canada also, and were the seiii^niors then, under the modilication which that tenure had undcri^''om; in its ne- cessary application to the condition of the Country, at liberty (a) Henrion de Pansoy, vo. Ceiis IF. S, p. 273, 1 vol. " Tl y a deux esp6cos de cens, I'uii modique seuleinent de quclciues deniors, ce qui est le plus ordinaire ct que I'on regarde cornme etant de droit cnm ■ mun dans les Coutumes censuelles ; I'autre plus considerable, beaucoup plus rare et qui consiste dans une rente en argent ou une partie notable des fruits de l'h6ritage. Quoique ces deux espoces de prestations aicnt ^galement la denomination de cens et qu'elles soient t'galemcnt re- cognitives de la directe, cepcndant il oxiste cntr'elles une ditVeronce tres iniportante. Comme la premiere est de droit commun, on n'exige pas que le Seigneur I'etablisse par titre ; sa qualite de Seigneur lui suffit, mais comme la secondc suppose une convention qui Pa lix6e ii cette quotit6, il faut que le seigneur represente le titre depositaire de ••ette convention, ou une possession qui la fasse presumer. Inutilement prouverait-il que les heritages circonvoisins soul greves de la presta- tion qu'il demande, ce moyeu serait insuffisant." and cites Dumoulin, Dargentr6 In Ii'. 9, p. 275, in speaking of both kinds of cens, the authors says : « a cet 6gard le Seigneur bailleur de fonds n'a d'autre droit que sa volonte, tous les droits qu'il se reserve m recognitionem dominii sont seigneuriaux et jouissent des m6mes prerogatives. Ce- pendant la difterence qui pent se trouvor cntre ces diverses prestations a tait admettre la distinction que Ton vient d'enoncer. On divise les droit seigneuriaux en deux classes, les droits ordinaires et les droits exorbitans. On donne la premii^re de ces deux denominations a la prestation qui forme le droit commun, a celle que la Coutume locale admet et indique comme la charge natuielle des heritages, comme U 3 t'.i 18/ in Canada, na seit^niors were in France, to grant concessioni on sucli terms luid (•ondilions insotitis, imisites^ et exorbitaiitu, as tlicy thoii^'lit proper to iiuposc. It is no doubt truf'that, by tlie original grants lioni tlit* ("rown to th«* Conipiiny ol New France and the West India Cotnpany, these Corupu- nies were entitled to make grants on sucli terms as iliev thougiit proper. In reference to the Company of New France, it will appear by the 5th article that tiie grants here refered to, are grants en fief and not en censive, for the latter part of the article clearly refers to the great feudatories of the Compa- •igne sp6cialeinent et gen6ralement recognitif de la Seigneurlo, tel est le cens de dix ou douze deniers par arpent dans la Coutume de Pam. Cependant rien n'ompfeclie qu'un Seigneur n'iinpose un terrage sur \v% terrcs qu'il ali^ne. Get exemple peut 6tre iinit6 par un tr^s grand noni- bre : cette prestatioa devcnuc par Id tr<^s commune dans le ressort de la Coutume n'en formera cependant pas le droit commun, ne sera pas le signi! naturel de la directe. Le droit sera seigncurial, a la v6rit6 mais exor- bitant. Nul ne pourra le pr6tendre qu'en vertu de litres particuliers et le vendcur de ['heritage qui en tst grev6, sera tenu de le declarer nominativement k l'acqu6i-eur, a la difference d« cens accoutumfe qu'il n'est pas mOmo absolument nocessaire d'6nunierer dans le contnii parceque la loi publique avertit elie-ni^me tons les acquereurs coinim; U)us les tenanrieis qu'ils uc peuvent poss6d<>r qu'a la charge de cc 7/1^ me CC71S. " Cesprincipes sont tr^s bieu presenles par M. Potliier dans son traite du contrat de vente No. 196. Les droits et devoirs seigneu- riaux teh qu'ils sont r6gI6s par les Coutumes sont aussi des charges des heritages qui n'oot pas besoin d'etre declar^es par le contrat de vento. lorsque les heritages sont situes dans les Provinces oii la maxinio nuUe terre sans seigneur est 6tablie, la pr6somption etant que I'hC- ritage relt^ve de quelque seigneur ou a fief ou a cens. Cela a lieu lors- que I'h6ritage n'est charg6 d'autres droits et devoirs seigneuriaux qw. de ceux qui sont regies par la Coutume du lieu, soit pour les fiefs 'Oit |.(>ur ir.'s ct'O'.ives. Mais si pnr dss titres parliculii-.rs, Plicritagc e>t 19/ tiy, for power i» there gi\en Xo erect tliein into titles of cli« lenity. As regards the West liuliu Company, by reference 10 the 22(1 and 23d articles of the grant, it will be found timt this power relates also to grants en fi(;f, and altho' inciden- tally the words ceiis el rentes are used, tlu; article and the general stipulations (jvidcntly refer to grants en fi«;f- For it is evident that the (^rown in making such vast territorial grants, in investing the companies WMth the powers to be touiid in their charter had reference to the grants en lief and no other. So also in the arrets de retranchement of 4tli jan. 1672 and 1675, 9th March 1670 and 6lh July 1711 ; all of charg6 de droits plus forts qui; ceux regies par les Coutuincs et usitci dans la Province, quoique ces droits soiontseigiieuriaux, lis doivent Ctre dl'chrcs par le contrat de vente, faute de quoi il y a recours de garan- tie centre le vendeur taut pour cc que Thtritage vaut de moins, par rapport k cette charge insolite, que pour ce que I'achetenr a pay6 de- plus que les profits ordinaires, car I'acheteur n'a pu pr^voir ces droits f>Ko/?7e5 quoique seigneuriaux." M. 10, on page .76. Le Seigneur f^odal on censier n'est tenu s'opposer aux cri6es p jur son droit de fief ou censive. Ainsi est enteudu ra.ljudication par decret 6tro faite ^ la charge des dits droits de fief ou censive. Cout. de Paris, art. 355. Cet article enveloppe en sa disposition tous les droits recognitifs de la 5i!p6riorite feodale, en un inot tous les droits de fief ou de censive, et cela sans distinguer si les droits sont plus ou moins considerables, s'il s'agit de droits ordinaires ou exorbitant. Mais le raisonnement ot I'^quito ont conduit a une distinction que les arrets ont adopts : on a dit s'il ne s'agit que d'un cens modique, que du cens ordinaire et ac- omturne, le decret sera sans influence, parceque I'acqu6reur n'ayant pas de motif de penser que I'immeuble etait aft'ranchi de la loi commu- ne devait Yj croire assujetti. Mais, si la prestation quoique servie sous la denomination de cens, etait considerable el du nombre de ceiles que Ton nomme extraordinaires ou ezorbitantes, faute d'opposition 'Ifi la part du Seigneur, elle sera purgee par le decret : par le double motif qu'clle ne devait. pas son existence d la loi, mais a une simple ""onvention telle que Tadjudiratairc ne pouvait pn* h mnnaitr*', pas m^mr In ^rtltp^ollncr/' * 20/ them rofcr to grants en fiof and not en censive. So also the confirmations of the King of the grants en fief made by his representatives in the Colony. If there is nothing to be foinid in any grant of tlie Crown to these great feudatories, which gives power to them, to make grants or concessions en censive, on such terms and conditions as they thought proper, and 1 can find nothing in any of the grants to that elFtu't, nor has any thing been cited in argument to justify sucli an idea, then by what law sliall these concessions be regulated in Canada. It is a})parent that the seigniors themselves from the first estalilishment of the Colony down " Oil Iroiivo cetto tlistiuclioii clans le trait6 dii ddguerpissemont de Loiseau en ces termes : liv. 1, cli. 5, no, 5. La troisieme preron^ative dos rentes seignouriales est qu'elles ne sont point purg6es ni abolies, par le decrot, comnie sont indistinctoment toutes les antres rentfis, mtime les simples foncicres, et partant, qu'il n'est pas necessaire de s'opposcr aux cri6es pour la cOiiservation d'icelles encore qu'elles ne soieut demandces par rordonnance des crioes, art. 12 et 18...tnute- fois pour CO que ces articles ne parlent que de droits seigneuriaux, il faut restreindre cette prerogative aux droits ordinaires, c'est-a-dire accoutuni6s au pays, ou autoris6s par la Coutumc du lieu, qui partant sont pi'csomptueusement notoires a l'acqu6reur qui achetent par dccret. Autrement il ne serait pas raisonnable qu'un acheteur par decret se trouvat charge, outre le prix de son adjudication, des grosses rentes seigneiiriales qu'il n'aurait pu deviner, et lesquelles s'il eftt s^u, il n'eul vraisemblablement enclieri ['heritage a un si haut prix, etc. " Les arrets ont accueilii ceitu distinction . Ferri^re en a reiuii plusieurs (sur I'art de la Cout. do Paris 357) ; voici comment il s'exprirae : que si la rente fonci^re tient lieu de cens et est due in reco^mtionem directi rhminii et emporte lods et ventes de m6me que le cens, il n'est pas necessaire de s'opposer, pourvu qu'elle n'excede pas les rentes foncieres seigneurlales tenant lieu de cens ordinaire et accoutunie dans le lieu, autrenieut Popposition serait necessaire. C'esl if- sf'otiiiient de Lcniaitie, de Loyseau, (liv. 1. ch. ."i no f)) de Bacqnet, i^-ait'.'i des Frano-fiefs ch. 7. no 2!^. ce qui aetejug^ par plusieurs ar- tii^ "■' and see arret of 11 .Ian: 1560 reported by Chenu, Cent, 2, !ro en a ommenl il due in de mfeme n'excede iiiairc el tire. C\.< BaciiiK-'t, isienrs ar- , Cent, 2. 21/ to the arrets of Marly, must have considered themselves as being under the operation of some law, for the cens et rentes never exceeded a certain rate in the Colony. If the modicum canon or ordinary or accustomed cens, Ic vrai cens of the Fri;ncii common law was not the standard, why was it ne- ver exceeded. If the seigniors were unfettered in fixing the rate of cens et rentes, why did they resort to the imposi- tion of new and excessive charges and of exacting deniers d^ntree from censitaires, when by merely raising the rates o{ cens et rentes, their object could have been attained. Why should they have resorted to nn acknowledged illegality, when they might have entrenched themselves behind the com- mon law of France which made the agreement the measure of their rights. If the seigniors were not restrained in the rates of concession, then, they were equally free in all other respects, and they might have exacted deniers d^entree and liave imposed whatever other charges they thought proper. If so why are they declared illegal by the arret de Marly, not [or the future but for the past. If ihe obligation to con- redc did not restrain the seignior in the rates of cens, how could it be illegal to take deniers dUntree ? If the obliga- tion to concede did not change the law of France, except in making the concession in Canada obligatory, while it was voluntary in France, then, how could the taking of deniers Quest. 32. — 4 December 1599, by Brodeau on 76 art. of Cout. no 10—20 April 1650 au rapport de M. Seguier. — 24. March 1635, au rapport de M. Pliilippeaux who signed arret de Marly. " Par ces arrets rapportfes par Brodeau sur Louet : lettre C. no 19, il a ete jugc qu'il faut s'opposer pour rentes fonci(ires quoique seigneu- riales quand elles ne tiennent pas lieu de cens, ou qu'elles sont plus for- tes que le cens ordinaire. " See also 1 vol of Ferri^re Ge. Coutume. p. I07!t, no 22, "Nouv : Denizart vo. Cens. S. 2. Du droit d'enclave iio4', same, p. 312. 1. i'ocquet de Livonitire, p. 534-5. supports the view of Henrion de Pansey in relation to decret. Prudhomme, Roture, p. 38, 40. — Ilerve, vo cens p. 91-2-5, admits Dumoulin altho' contes- ting his principle. —See Henry, Jeu de fief, 105-6. ,;:.?H '^i; I 22 /■ d''eiitr^€ be illegal ? For if the only eliange was thai tlii« concession in Canada should be obligatory, then all tiie rights of the seignior still existed as they did in France, under tiie Custom of Paris, and one of these was to make his contract of concession as he pleased, and take deniers d^entree as he choose. It is impossible to deny that if the taking of deniers d^entree was illegal in Canada, that it was equally illegal to claim freedom in any other stipulations, which under the 51 and 52 articles of Paris could have been done. But it is impossible so to interpret the grants made to the seigniors, without utterly defeating the very object for which alone the grants were made. For, permission to sti- pulate the rates of cens et rentes, in a deed of concession, necessarily involves in the very nature of things, a right to refuse the concession, and the reasoning naturally presents this contradiction. The seigniors were bound by their con- tracts from the Crown to concede, but by the common law of France which existed at the time these contracts were made, they were not bound to do so, and they were permitted to refuse the concession. For it is useless to deny that a demand for exorbitant rates of concession is tantamount to a refusal to concede. Then which law shall prevail? The law impo- sed by the Crow^n on its great feudatories, or the common law of France which nullified that law ? Surely both Crown and seignior must have known that such a rule existed in France under the feudal law", at the time these grants were made. They cannot both subsist together, one must prevail over the other. Was it the intention of the King to preserve this right of refusing to concede unless the taux w-as agreed to, or was it his intention to bring the common law rule as regards the cens, in aid of the obligation which he had im- posed on his vassals ? In taking the modicum canon as the rule, his great object would be attained ; in taking the other proposition, these objocif? would be entirely defeated . Th*" 8.T nrtirlf^, in \hp chaitrT io tb^ West India Comprmv h«' 23/ .V'i'T, if- «'.-^ \ : •Jt-.tii...: ihal lb.' le rights nder the ntract of e as tiP f ileniers illegal to er the 51 made to ibject for ion to sti- mcessiou, I right to presents their coiv on law of ere made, •mitted to a demand a refusal |aw impo- common •th Crown Ixisted ill .nts were st prevail preserve IS agreed |w rule as had im- ni as the the other Id. TlK iimiv h!" been cil " aussi ceux a qui elles ont ete concedees en seigneurie " n'ont pas encore commence d'en defricher pour y elablir " leur domaine : — Sa Majeste etant aussi informee qii'il ya " quelques seigneurs, qui refusent sous differents pretextes " de conceder des terres aux habitans qui leur en demandent, " dans la vue de pouvoir les vendre, leur imposant en meim " tems des m^mes droits de redevances qu'aux habitans *' etablis, ce qui est entieremcnl contraire aux intentiom " de Sa Majeste et aux clauses des titres de concession. " par lesquelles il leur est permis seulement de conceder le> " terres, d litre de redevances, ce qui cause aussi un *' prejudice tres considerable aux nouveaux habitans qui " trouvent moins de terres a occuper dans les lieux qui pen- " vent mieux convenir au commerce : A quoi voulant pour- " voir, Sa Majeste etant en son Conseil a ordonne et ordon- " ne que dans un an du jour de la publication du preseni " arr6t, les habitans, etc., qui n'ont point de domaine de " friche, et qui n'y ont point d'habitans, seront tenus de les :;:t if jarrying positive r under 3 of ihe idal law re bound granting t a mcve- ^-as their Je Marly, i etant in- ien voulu 11 la Nou- .t cntiere- icun habi- le squclk^ 25/ " incitre en enlinre, ei i.V\f placer dcs fiahitans desstis^ Caiiio •• de qiioi... Veul Sa Majcste qu'cllcs solcnt reunies a son " domaine a la diligcneo du procurcur general, etc '> Ordonnc aussi Sa Majeste, que tons Ics seigneurs., ayent " a eoneeder aux liabitans les lerres qu'i/s Icitr demandent " dans leurs seigneuries u litre de redevances ct sans cxiger '^ iVcuxaucunc somme d''argent pour raison des dilcs conces- " f«ions, sinon. . .permet aux dits habitans de leurderaander " les ditcs terrcs par sonimalion et en cas de refus, de so " ponvvoir par devant le Gouverneur et Lieutenant General '' ct I'lntendant, auxquels Sa Majeste ordonnc de eoneeder " ios terres par eux deraandees dans les ditcs seigneuries '^ aux raemes droits imposes sur les autrcs terrcs concedees, " dans les dites seigneuries, lesquels droits" are to be paid over to ilccciver General of the domain of Crown. Did this arret introduce a new law into the Colony, or did it affirm the prL'-cxisting law ? I think this was a purely declaratory law promulgated on account of the abuses which had crept into the colony. The first part of the arret orders, that the seigniors should settle their seigniories and \A^cc inhabitants (in them. This w*as no new obligation. They were bound bv the conditions of the grants, as the King himself in a subsequent part of the arret declares, to settle their seignio- ries and distribute the lands. Do the words placer dcs ha- bitans, in seigniories granted expressly for settlement on nominal seigniorial dues, such as were imposed on the sei- miiors, imply a right in the seigniors to charge what they l)leased for these concessions ; in the words of Freminville, defaire la loi in granting these concession ? Assuredly not. The very reverse is in spirit as well as in words con- veyed by the expression. The meaning was that the lands should be distributed by the seigniors as the Crown had distributed the seigniories. The whole territory of New i'rance, extending over thousands of miles, could not be ''i-tributcd rn ccnsii'c li wu^ iherefoir abL-nlulelv ncec-- . '^'J ','' 1, vlll V ■>t.» •■' I'l :^2' ' ol^A hi i/U'^il : th ; r ''■''■■ ■ ;■ . 1?^ i; '■it 26/ 8ary, that, this ohjoot should be carriod out by gvanis en fn'f in the llrst instanc'O, and thcrelbvc liis Ibudalorics wvw. vui- powered lo conefde in ordcu* lo carry out lliis design, inn! these irriuils were acce])tcd on that condilion and for that »'s[)eeial i)l)jet. He granted to them their s(/ign:ories or nomi- nal re'nts or dues. 'Ilie seigniors were l)ound to disiri- l)utc llieir seigniories on nominal rents or dues. The V( i\ nalnre of a ieudal grant necessarily implies a gradual liai)>- mission, from ieudal suzerain down to iIk; lowest link in \hr ((■ii(i;dchain, oC feudal obligations. The right of boili par- ties, seigniors and thosf; willing to take lands and settlr in the Colony, were stilled by one and the sam(^ act, the oii- gijial grant from iht.' Crown. The stijjulation made hy ilr Crown, that the seigniories shoidd bo scttlod and the land- distributed, was maays, that they demanded money at the same time as lliey iii)))osecl the same rates which had b(;en imposed on \\n-. iitlier inhabitants, thereby shewing, that any thing beyond ihcsr rates whether in the shape of money, or charges, or unis was contrary to the intentions of His Majesty, and itiiiiiaiy to the clauses of the contracts. To restrict this vidlation to the mere taking of money, was to limit the abase loinplained of to the simple case which was given rather as 111 illustration of it, than as the abuse itself. To restrain ilii' seiynior from taking money aloni,', while he imposed ill'' same rates oi^ redevances, for the concession and Icaviiig liiiu (ret! i() ImKo this excess in any other form, is to restrict 'lie spirit and meaning of the law' so as to entirely (lefeal it. I' would Ijc to apply the restraining power of the law nol to '111' aljuse which it was intended to remove, but to the siin- pli' instance which was given as its illustration. The law of nil was emphatically a remedial law promulgated for the 1 i n -.i '' b-'* ' ' ' ' {'■' V .^^i^ ••■ * 3- i- ,.v • ; V, ;;*-': t ', ' 1 i v.. ')'Vv'ii| V:.:i - ^^' V- '. Vi',, , : l--.t.I '''^ ■■■> ' 'l^\:\ 1 m ..M> f =*,?;■. - : 'k\M ^•■-■''! 23 / cxpro?;) purpose ol ili:(;lavini; li) ii'i(islative anlJiority, whu^ the nature of tlio ijfranfs Croni tlio Cnnvu liad bocii, the oli ject for which they Imd been made, uud the conditions imd limitations which had been imposed in the i^rants themsel- ves. The abuse complained of w'as that money had bcvn exacted in excess of the usual rates existing in the colonv, thereby nflirming tlic existence of droits accoulumcs and tiiat any thing talcen in excess of these rates, w^as illegnl and a violation of the grant itself. It is however pretended that a prohibition to take dr niers cVcntrcc^ is no prohiliition to impose any rates of con- cession wliich the parties might agree u[)on. Wiiy noi ' Both are matters of agreement under the Frcncli law, both are recognized by the law of France, as legal, both are inci- dental to the tenure. It is true that the taking of denim (Vcntrec is sometimes fiualified as a sale. In its essence it may be so, but technically, it is not so. It is the considera- tion of the alienation as much as the ccrifi ct rentes: In Franco when the concession was based on the proximate value of the land conceded it was le prix de la concession. It is attempting to base an argument on a mere teclinical distinction. If the order to distribute the lands did not de- prive the seignior of making his agreement w^ith the censi- laire, as to the terms of the concession, then it is impossible to assert that he could not include in his agreement every thing which by the laws of France was considered legal and a valid consideration for the conveyance, if not so, tlien, — the whole object of the Arrets de Marly must have been merely to change the form of the conveyance ; by which the alienation of ihe land was effected and no more, and to leave the seignior to fair e la loi to the censitaire as if he had been the absolute owner of the estate, unfettered by any condition or obligation of conceding or of settlin": the lands. The seignior must have power to contract or he is deprived of that power. If ilKn'oriiuM', f cannot r-ee o\\ what piin''i- 20 f |,1( hr can Ix- liuiitcd in iiKiKini: iln' nL';rr(in(Ht i( hr do iioi iriinsgrobi!^ tin; law ; if the latter, llicn lie must he icstricltMl lo ilic concession as tlio KingliimscK'by all liis Declarations, down lo the Arret de MarUf has explained it. To take (knicrs iVentrac^ or money or to take tlio (Hinivalent of money, is one and tlu* same thing. To sti])ulate for what must be redeemed by money, is the same thing ; to convert that money into a rent, is the same thing. It is lo 1a'-e more than the rcdcvances established in the colony, and all aro a breach of his contract as defined by the King in the Arr^l do. Marly. In spirit one is as much a violation of the law as the other, and contrary to the declared intentions of the King. The arrt^t in prohibiting the taking of money and enacting that the concession shall be a litre de redevances, plainly means that redevances which had been established in the colony, from its earliest settlement, for it refers to that whieh w\as established in the colony. There could not bo different litre de redevance, here referred to. The King referred clearly to one, already in existence and which by universal consent had become the taux ordinaire ct accou- tume in the colony, and which had been and must have been based on the common law of France as already stated, or settled by express limitation under his feudal grants. But in my opinion the last part of the arret, which gives power to the Governor and Intendant to concede on refusal of the seignior, puts the matter beyond controversy. The ari'et fixes a rate for the guidance of the Intendant. It is plain that the duty to be done by the Governor and In- tendant is a judicial act, for the concession is to be ordered on the summons or application of the inhabitant. The Governor and Intendant were bound to concede at the rates already established in the same seigniory, and it is clear that in the mind of the King there must have existed a well known rate. Now is it possible to suppose that the King intended to make the Governor and Intendant do what the 't-:i' ''B ni-'" r if;. ;fj il.liv' &.i?i ■1. .' I • 1 30/ scii^nior Iiimsolf was nol, bound to do. That altFio' tin- (Jovt-riior and Intcndant were l)()und to a certain ratt3 of con- cession, lliat llie s;jignior could refuse 1o accept tliat rate liiiiiself, and such a refusal was not the refusal conteinpln- tcd hy the Crown, on the happening of which the jurisdic- tion and authorjiy of the Intendant should arise. Tiiat ihr (iovernor and Inlendant should be bound by liie law, but lliat the seignior should not. That the King himself should Ix' bound hy the arret dc Marly (for by the arret the Kiiii,' (h'legated his authority as Sovereign to the Governor and lnt(Midantto enforce the feudal obligation of his vassal) and tiiat tlie seignior was not bound. Such reasoning is alto- gctiun- untenable, and if admitted would altogether delc;il the law ilself. The judicial act of the Governor and Inten- ilant in granting the concession, does no more than whui ;i ( 'oiul of justice in this country does every day ; the judgmcni /'all litre and in giving the judgment which the law ordered, on the refusal of the seignior, they did that which the sei- gnior was himself bound to do. It has been said that the law in fixing a standard for the guidance of the Goverinir and Inlendant did so merely to obviate any possible dill'c- reiice of opinion between these two functionnaires, infixiiii; I he rate of concession, and that in doing so the King followed I he common law rule in Franco and adopted as the basis ot the .-standard des droits accoutumes, such as already existed. This is unsound reasoning ; for in France this rule only obtained when there existed no contract or when it was lost or could not be produced. The law presumed that when the seignior allowed the censitairc to enter without a contract, that both parties submitted to the rate already established in the seigniory. But it is not so here, for this is not the case of a possession by the censitaire without a contract, or where the contract could not be found, t)ut tht; case of the seignior refusing to make a contract. For as all concessions arc matter of contract, and as 31/ tlio King ordered the sci<^nior to oonrfdc, lio necnssarily ordered him to make a contract ot" concession, and in rixliii^ ihe r.iUi for the Governor und Intendant on rrl'iisMl oC the M.'i<,'nior, Jie necessarily fixed it for the sci^niior himself. The (■hani,'e wicli th(^ Arret Marly introduced was simply to give a right of action to the jniiabitant to enforce the con- cession by a judgment, where no such right of action existed before. Mnt It is contended that the authority given to tlie (Jo- vernor and Intendant was only to ])e exereisiul when the sei- gnior could not agree with the inhal)itant re(iuiriiii( the con- cession, as to the terms of it, and that in such dilHueiice liie governor and Intendant should exercise a discretionary ]iower in settling the rates, with a due regard to the circum- slunees of value or position. That it must be so, as the seignior had not been deprived of his liberty under the law of France, to make his contract as ho choose, and that the exercise of such liberty, was no refusal under the arn'l of rn, or breach of his feudal obligation. In fact that tlie (iovernor and Intendant were arbitra torsor unpires, and that they had the common law rule of France to guide them, in ease of such disagreement, and this was the taax ordinaire or accoutume already established in the colony or seig- niory. If so, on what principle of justice or common sense would the arret of Marly have decreed the forfeiture of all the lucrative rights to accrue on the lands so conceded, for the judgment ordering the concession, refused by the Seig- nior deprived him of any money claim whatever over the land so conceded ? If the seignior was only exercising his legal rights, why should he suffer any penalty ? If he had tall liberty to malu! a contract, his refusal to conceded or his unability to agree on the terms of the concession was surely no violation of the law or of his feudal obligation, >■ '■ 1 i'i. ■ ■'•' •) I t "ill ■111 11 nj'MEi: 32/ iiiicl ill :;iiili :i niM', Imu loiild any jx'iuill) If imjiosid i n liiiii, without ii viulutioii ^A' cvury principle ol" justice ! ii is impossiblL' to put Miu-li ii construction on the law ol' 1711, ;i simpU; transposition of the words will siidic^c 1o show thr true rending of the arret. After i^iving the order to concede, the arret goes on to say, " ct eii cas de I'cfus, dc sc ponrvoii etc.'''' Now by transposing the words " aux mcmcs droits imposes''^ wiiieh folh)W the order to the Governor and Iii- lendant, and joining them to the words which refer lo iv- fusal, the arret will read as follows: " Et en cas de rel'iis " de conceder aux nicines droits imposes sur les aulrcs " tcrres concedecs. . . . de se pourvoir. ..." and will cleaily establish what the intention of the King was, in pronudi^a- ling the arret, and what he considered to be the abuse wliicli was to be corrected, and what he likewise considered to be a violation of the feudal contract. JJut even admitting tiiat the Governor and Intendani were only cmi)owered to carry out the common law rule in l'>an(;e on refusal of the seignior to concede, is not the con- clusion inevitable, that the same common law rule was also binding on the seignior, otherwise what is the meaning ol the w^ord refusal '.^ No one can be considered as refusing lo dv) a thing, if bound neither by contract or law lodoit. Under what possible contingency, then, could the jurisdic- tion of the Governor and Intendant arise ? IIow could any refusal in the sense of the arrdt even arise, if not in ihc seigniors refusing to do, what the Governor and Intendani were themselves ordered to do for him the seignior in case or refusal. But it is said that the am;7 de JVIor/^/Avas mere- ly intended lo enforce the common law rule as it existed in France. If so, then the rule must be found in the Custom of Paris. If so, it must necessarily have been introduced into the Colony before the arrc't de Marly. There was there- fore no necessity for cnaeling and enforcing such a rule by a special la^' ;c^ it aheadv cxistf.'d 'f'l!;ii if did ^'xi-f V'-- ' \] 33 / KTC lluit period, and lliui it was acted ii|)un hy llio Inlcndiint" iiul only Ijefore, but al'icr lliu arret, is (innonstralfd hy llio iiiiiiii'ioiiH jiidgincnts wliicli have Ixm'h read l)y tlic I'rcsidcnl III' lilt! Ci)url. ^V liy tlicn erect an extraordinary trihiinal lor ilic .sole purpose of enlorcin<,' a connnon law ride which ex- isted before tlu; arret dv Marly and which was alwayx en- Ibrcod by the ordinary Irilmnals, viz: that of the Intendant alone and which continued to be enforced by the, Intendant iijoiie after the pronud^'ation of the arret dc Marly. 'I'lie. { (»iul was erected for no purpose whatever if that was its solo authority. It was a rule which was always acMed uii, whenever the contest arose; between seiii^nior and censiiairc, when no (u)ntraet was made. Of course in all liiese cases, ii cunnot be pretended that this rule was not binding on the seignior. But it may be said that it was bindinij in tliestj eases because the ccnsitaire had entered into possession. Wliiit possible diU'erenee could that inalvc .' In the one case ii contract is presumed or implied to exist between seignior and ccnsitaire, from tlie fact of the ccnsitaire taking |)osscs- ^ion without a contract, in the other, the law of 1711 de- elaratory of the preexisting obligation of the seignior to grant a concession, was a contract in express terms. Both are made to exist as contracts, the one im])lied and the other express and made by the law. It will not be denied, I presume, that the contract which the seignior made wlien he accepted the grant, and as declared by the arrcH de Mar- ly^ is as much a contract as if he had granted a billet dc concession, or had allowed the ccnsitaire to enter withovit a eontract. Then, wdiat could L : the object of the King in passing the arret de Marly if not to enforce the contract : The very argument used that this was a droit acquis to the censitairc, which the Governor and Intendant were bound to enforce in his favor, necessarily involves the existence of an oblig;ition which this droit acquis can enforce ; and "gains! whom is it to be enforced ? surely against him who i' ti 34/ liaU assumed ihe obligation. If ilie droit acquis lo the c^u siilaire was to have the concession mix droits accoutumen, surely the obligation of the seignior was to grant the con- cession aux droits accoutumes. Even on the view taken, that it was to enforce a common law rule, such a rule is utterly incompatible with the idea of freedom in making an agreement. But the arret intended more than this. In de- claring that the existing rates in the seigniory should be the rule, it necessarily fixed these rates, even if they did vary slightly, as a rule which all inhabitants could invoke, so u>ng as that rule had the force of law. The refusal con- templated by the law of 1711, is the refusal by the seignior to do that, which by his contract he was bound to do, and that which by his refusal became a droit acquis in favor ot ihc censitaire, what else can that be but to grant the conces- sion autaux ordinaire 7 If notwithstanding: this the seicrnior could fairc la lot to the censitaire in making his concession, then no law whatever can be framed which could restrain him. The second arret de Marly which Jias reference rather to the censitaire than to the seignior is full of instruction, in declaring the nature and the legal effect of the obligations imposed on the seignior by the Crown. The arret says thai the inhahitants also had taken concessions of land from the seigniors, and instead of settling on them and bringing tliem into value, had contented themselves with making a httle clearing, thinking thereby that they had done all they wore bound to do, thus leaving the lands unsettled and depriving others the inhabitants of the advantages to be derived lliercr from. The King then declares that this is contrary to his intentions and that these concessions were only granted nnd periuiiled " dans la vuc de /aire etablir le pais et A condi " tiou que les terrcs seront habituees et mises en valeiii " etc." Then follows the order to reunite in the term?* <>! • he arr^t. Now, what were the concessions here referred t' 35 / by the King ? Were they the concessions to tlie censitaires ? If so, it is clear that scllloment was the obligation assumed by tlie tenant and that it was imposed by the Crown, for the Kinj:^ says that non-selllement was contrary to the very ob- ject lor which these concessions had been made, and where arc these intentions to be foun;l ilnot in the grants from the Crown to the seigniors themselves. Here is ano1h(>r express declaration tliat the grants to his great feudatories were made on this express condition. Bat in reference to the airdt de Marly, it is necessary to examine llu; corresponderco which took place between the Intendant Ilaudot and the Government of France in 1707-8, and which, it is said, gave rise to the two arrets. It is pretended by the seigniors that this correspondence did not give rise to these arrets as they do not meet in any way the abuses which are pointed out in the correspondence — That, although it might have been the intention of the King to have issued an edict or law on the subject yet it was never carried into cHect, as the project of law framed by Mr. D'Aguesseau to whom the correspondence had been refered for that ])urpose, was only framed in 1711, and was never in fact carried into execution. The letter of Raudot which gave rise to the correspondence is dated 10 Nov. 1707. The first part of the letter refers to inattcrs unconnected with the present investigation. The part which principally refers to the subject is in the third and fourth clauses of the letter. In speaking of the dilliculty experienced by censitaircs in obtaining title from the seignior after they had been in pos- session on mere billets de concession or mere promises of concession which did not contain any mention of the chaj'- ges de la concession, the Intendant then says : " II est ar- " rive de la un grand abus qui est que ces habitans qui " avaient travaiHe sans un titre valable ont ete assujetis a " des rentes et d des droits fort onereux, les Seigneurs ne '■ leur voulant donner ces contrats qn'a des conditions lea- ■j .- .>\t m 1.-1 II 36/ " quelle.'j ih 6taient oblig^a d'accepter paice que sans cela " ils ttuvaient perdu leurs Iravaux, cela fait que quasi dans " toutcs les soii^nnuries les droits sont diirt''rL'ns. Les nns " payont d'une iaf^,on, les autres d'une autre, suivant los " diirerens caracteres des seii^neurs qui les out conceiles. " Ils the idea of imposing any charges not in the nature of a iy- devance properly speaking and as it was understood in the Colony, which charges they, the eensitaires, were afterward,* compelled to redeem in money ; if charges, even, were con- sidered illegal as being beyond the redevances ordinaires, by what possible system of reasoning or logic can it be legal to raise the redevance itself. No argument can be clia\vn from the fact that the project of law by Mr. D'Aguesseau was never carried into efleet, i." enough can otherwise Ik found down to and in the arret de Marly to determin(5 the nature of the rights and privileges of the inhabitants of tlir Colony. This view, I contend, is fully borne out by lli*-' project of law itself supposed to be framed for the express object of removing the abuses complained of by the Inten- t t!i« Kijig Now ii la tlcMi', if the intention oi the King is lo be found aolely in ilio tjranis tlicins(;Ives and to nj)ply solely to these grants, it w^as entirely useless to speak of intentions, as the terms and condifions of these grants would suiliciently demonstrate what those intentions were. 'J'hese grants surely rre made in pursuance of th^ law and of liie intentions of the King previously declared, then where arc these intentions to he. j'onnd, if not in the previous grants to the seigniors and in the law of 171 1, for Hiich was the interpretation which the King himself put in tlio'^e laws. Here also you have the true meaning which the King had always put on the words " dc concedcr a tilrc deredevanccfi,''^ so frequently used by the King in all ills uc'is and laws. It means and it can mean nothing else than the explanation which is given in these four grants. It was a mere mark of the dirccle, never intended to be a re- venue lo the seignior, but to be th.e basis of lh(! future pro- fits which the tenure would give him. The exclusion of taking money and the imposition of any charges whatever oharactorises the true change which was introduced into the tenure in Canada, and which was the express ccdition of the grants, that the Jew de fief w^s to be in Canada with- out limit, but it was to be liy concession alone and sansfaire profit dc son ficf on iho first alienation of the land. Then tbllows on all this evidence the subsequent grants of the King, 45 in number, where the words taux accoidume or rc- dcvances accoidumees ure always used. The Kinsr must have refered to the rates which had always existed and which were by himself declared to be ordinaircs d accoutu- m^s, when he, as he thought, sufficiently expressed what ^•bis taux was in the four grants. But an objection has been ■i;W' .i».; u% -14./ '. I lukc'ii to tlu St' grants, on the ground that tfie Jcjitfi ol' tht; concessions liaving varied from twenty to forty arjionts, tlini tht; rates irinst have vari(;d also, as, incahndating the sxipr;- fieiai contents of the concession, the rates will be found to be dJIlerenl iu these seigniories, and that as there was fi variance in these rates, that there was and there could b(! no fixed and uniform rate of concession. liy such reasonin<) no law can be ibund wliich is not lial)le to objection. 'Hic depths of the concessions in Canada always varied acronl- ing to position, but this cannot affect the principle on wliich the cens el lU ntes were always applied, vi;^, l)y the arpent in IVont, by the depth whatever it was, not exceeding howevc! forty in depth. In my mind, this, on the contrary, alionU very strong evidence that the rate v/as to be the same, no matter what the concession was in depth not exceeding for- ty arpents, as the rcdcvance was intended, in the words ol Tlocquart, (if my interpretation be objected to, altlii)' lii-> opinions, however good they may be in relation to charge'- and other matters, are of no force when the cens et rciilt'^' are ref;;rred to) to be the mere cens rccognllif^ never inleiul cd for pnrpo;(ri^'lation and change the whole policy which had dictated this legislation, from the first settlement of the Colony. As some importance lias been given to the change in tho conditions of the new grant to the Seminary of St. Sul- pice, 1 will transcribe the few words which refer to this ihange, in the correspondence of Ilocquart of Gtli October 17;! {. In No. 1, he says : " Nous ne savons point les rai- " sons (jni ont determine Sa Majeste a fixer dans le brevet " (le 1718 la profondeur tics concessions a 10 arpens, et la. " quotile des cens ct rentes. On a cm se conformer a ses in- " tontions en mettant seulementdans celle de 1733, ion ; " and fiirllier tlii- clause is to apjiiy to the former grant of seigniory of Lakt' of Two Mountains, " Cette < xpics^sion vague laisseiuli " liberte au Seminaire de eoneeder jjIus ou moins cle piv- " fondeur eta j)lns ou moins de cens et rentes, a proportion " de I'etenduo des heritages el iiicme de leiu' bonte. Et *' eomnie Ics usages sont ditlerens dans presquc toules K's " seigneuries, le terme accouluiiu., restreint seulemcnt Ic^ *' ecclesiasticpies a ne point eoneeder pom* Pordinairc, " moins de vingt ar[)ens de proi'ondeiu' et a n'exiger deplus " fortes rentes que eelle da vingt sols pour cha(pic vingt ar- " pens en suj)ortleie et un chapon oti l'c(juivalent en bled. " A I'egard da cens comme e'est une redevance fort niodi- " que qui n'a etc presumee etablic que pour marquer h " seigneurie directo, it (pii emporte lods et venles, la qno- " tite en usage en Canada est depuis six deniers jusqu'a un " sol par arpent de front sur toute la profondeur des conces- " sions parliculieres quelle que soil celle profondeur. L'ex- *' pose du memoire que les seigneurs en Canada ont lal;- 47 / •' berlti fiomnio partout uilUnirs " all the other grants, I am at a loss to know. If d-trcence in rnero /alue, ill the words of Iloequart, merited He 'onsiderafii/n of the Kini,', surely the clear inference must be that any possible (litrcrenee in value, before this date, could have had no cf- ft'ct on the concessions; and as the King has no where cx- |)rc.>scd his intention to change the law of 1711, in this rea- |icot, but on the contrary frequ(>ntly n;ailirmcd it, it remained ilic law of the Colony down to the termination of the french domination. ,1. i; V, On this point it may be proper to refer to the case of Lenoir dit Holland and *... '? Rerthe, decided by Mr. Dail- Icbout, on .5lh Fel)ruary ii»V5. No contract had been made between the parties, l)nt Lenoir had been tendered a con- Iract, (It does not ruitc appear whether or not Lenoir had been in possesf io i ander a brevet or promise or not by the '^eignior of the arrUrc fioQ and he refused to sign or attack- ed tlio -on trael if he had signed it, (it does not appear which) '^n the ground, that ihr rcna i( renfes and charges were ex '5 48 / cessive. To this action the procmeur Fiscal ol" the kmo was made a party by the order of the Court ; tlie |)h;a set up two points : lo tiiat a seignior was not obliged to concede, and 2o that the value of the land to be conceded was such as to justify seignior in his demand. Both these points were on the contestation of the procurcur Fiscal overruled, and the concession was ordered at the rate claimed by Lo noir. The contestation of the Procurcur Fiscal cl(jarly points out the true nature and character of tiie grants iVom the Crown. This case is remarkable as liaving fonnally di • termined two questions which certainly entor very largi'l\ into the settlement of this question. If, as it is pretended, that a progressive rate was to be the rule to bo deterniinc! by the ))rogressive value which the land might acquire, and that such progressive value was to be the guide for tlic (jO- vernor and Intendant when called upon to grant the conces- sion on the refusal of the seignior; then, how is it tliat not a document of any kind can be found in the archives of tlr Colony to justify such an opinion ! The very reverse is de clared by the King to be the law ; for, in ordering the an''.! of 1711 and 1732 to be put in force and in fixing the rates of concession in some seigniories, and in others, ordering tin; concessions to be at the usual and accustomed rates, a-i fixed by the first of the arrets de Marly, he in the clearest manner negatived the idea of any change or increase in the rates of concession. Hervo 1 vol p. 415. " L'usage general d'nne sci- " gneurie appellee usance ou usement de fief pent quci(iuc *' fois suppleer a la coutume et aux titres particuliers ef sul- " fire pour soumettre a un droit ouii une prestation (jui s'ex- " erce generalement dans I'etendue du fief, quehiucs vas- " saux ou censitaires qui pretendraient s(? soustraire a ce " droit ou a cette prestation ; car lorsqu'un droit ((uclconqiif' " est 6noncc dans pres(jue tous Ics titres du fief cl s'excrer " ?in" prcsque tous l^s sujels dc re fief, il doit (}tie retmrde ■VJ f ■ i:oinm(^ uu droit natural iV'. la scioiiriirit; duiit piM'soiinc " n'est oxernpl, a inoins ([u'il ii'ait un tilrc precis d'ex- " emption •)•) This is the principle of the feudal law. The usance or usemcnt exists in France, where full liberty is given in con- tractini,', and exists, wiien there is no contract. If this law is sufficient to impose the charges on the censitaires, it is I'qually powerful to relieve the censitaires. The uaement de jlefwiis established in Canada, for it is in fact the taux ac- coulumo or ordinaire invariably declared lo exist. The ar- riiloi nil in terms allirined its existence et declared it to be the rule for all seigniories. This rule existed in France when the rate':^ varied, and it was considered an undoubt- ed rule of the feudal law. In Canada the rates varied in ihe seigniories; why should it not be the rule here.' If it obtained in France when the seignior was unrestricted in making his concession, much more should it be the rule here, where this liberty is taken away. It may be now necessary briefly to allude to the prin- cipal objections wliicli have been urged to establish that the seigniors were at full liberty to make the contracts of conces- sion, that no fixed or usual rate existed in the Colony and that ilic rates varied in all the seigniories. 1. That no rate is mentioned in any of the grants pre- vious to the laws of 1711 and not even in these laws, what difference does this make if a customary rate existed in the Colony and the law of 171 1 adopted this rate as the guide for the future 7 It is clear that there was a variation, in the manner of imposing these rates ; that instead of being hH imposed in money, the payments in many instances were '^lipiil;ii"(l to be made in graiji ami :a lapous. From all 'hat has been sn'-d on liiis siibjci't it appc;tr> to iiicthal thrr*^ \"iis MO v;n-ialioti ill ilio amount of the rni^ d rrnhs, bui liuit 50/ any variation which can be discovered, will be found to exist and be caused from the changes in value of the spe- cies in which the cens et rentes were to be paid, and not otherwise, and in applying the rates agreed to be paid to concessions varying in depth, by calculating their superfi- cial contents. The rates varied from a fraction of one sol to two sols for the whole usual concession, an ' I think it may be stated as a fact that in no well established instance under the French Goveriiment can it be shewn that it ex- ceeded 2 sols, by actual stipulation as cens et rentes ; nnd even if one, two or three cases can be shewn, these cases cannot change or affect the principle that there was a usual and accustomed rate throughout the whole Colony. Tin? variation, always under 2 sols and not over that amount, also will be found to be produced in cases where the depth of the concessions was dift'erent, the depth in some seig- niories being 20 arpents, some 30, and some 40 arpents a(- cording to position ; and this uniforme rate was stated to exist in the Colony by all the legally constituted authorities. and so affirmed by the law of 1711 ; at any rate if n iVw cases can be produced, it never can be pretended that a violation of a law in a few instances can abrogate the law itself. The cases which have been cited to shew the va- riance, are based on this calculation of the superficial con- tents of the whole concession, and about ten only wen' cited, and this over a period of IGO years. I think in the view which I have thus taken, that the law of 1711 established this rate beyond controversy; for the King in ordering the Intendanl and Governor to grant all concessions at the usual rate, necessarily admits the existence of this rate, for the judgment of the Court only ordered that to be done which the seignior himself wa'^ by the law and his contract bound to do. In fact th' only thing to be ascertained in reference to this law, is, what constitutes a refusal to concede by the seignior. K U 51/ is no refusal on the part of the seignior to ask what he chooses for the concession, and impose such charge, as he ehoos.'i. : en those laws cannot bear the interpretation wliicli me King and his otficers gave to them and which by universal consent before 1759 was given to them ; and the seignior could not be bound by their provisions. It is also stated that the law only applied to seigniories then granted and did not apply to any future grants, and ihal, if no concession had been made in any seigniory , it could not apply to that seigniory. This is altogether un- tenable, for these laws have been admitted to be in force and applicable to all seigniories by every Court of justice both vnder the French and English Governments. The de- clarations of the King and of the French Government down to the conquest have without exception, affirmed these laws to he continuing and subsisting laws, and have unil'ormly ordered them to be strictly observed and enforced. As to the second objection, that they could not apply to seigniories in wliieli there was no concession, at the time of their pro- mulgation, and that as no standard existed in the seigniory, that the laws could not apply ; it is only necessary to ob- serve that this law was passed for the benefit of all the in- habitants, and not for one individual and that if it be a con- tinuing and subsisting law, it must apply to all, otherwise, it would be in the power of a seignior by making either a fictitious concessit)n or even a fair concession at high rates, thereby to create a rate for liis own guidance and thus de- prive the other inhabitants of all benefit under the law, and defeat the whole effect of the law. i 9 ! i i . That it is impossible to establish one uniform rate for all the seigniories, and that to take a medium rate might be unjust, as not being the rate which had been contracted for. This objection or rather the first of them rests on the diffi- culty or impossibility of determining a matter of fact and 02 / villi ul law, l)iil llii.< caiintil ali'ccl tlit^ law , il law lliciv Ihv lor if is not contendL-d that llie rate was idonlic-al llirouyh- out the Colony, but that it was «.s//e ct accouiuine and nevii f-xceedcd a certain rale. This also is unsound reasonini:, for a taux usitc may exist in amount, alliio' it may vary in the manner of jiayment by the accidental increase in value of the thiniT given in payment. It is sufficient to shew that a. maximum Yn\i\ in itself only a modicum canon^ aclnally existed, and this slight variation can never create a total exemption on the part of the seignior to obey the law. Tlie i sols rfite was unciuestionably the maxiioium rate under thr French Government, and because some seigniors took less. or that the rate varied from 2 sols down to less tlian one sol can never justify the prete ijon in law that any rate wliat- ever could be charged An objection has also been made on the ground ilia; altho' in France, the cens cl rentes were in appearance low, that the original constitution of the cens ct rentes was fixed when money bore a much liiglier standard of value, and that in reality it approached the value of the land conceded. This may be true as an historical fact, but it is equally true that the authors, who maintain this))rin>;iple, altho' the most eminent contest it, such as Uumoulin, and Herve admits almott all the great feudists, also state that such an argu- ment, if good in reference to those seigniories which were conceded when money bore this high value, docs not and cannot allect cases where the grants were made after tlie mt)ney had fallen in value, and the grants in Canada fall within this class. This will be found to be the case on re- ference to Ilenrion de Pansey, Dissertations feodales vol. ]). nouv. Deni::art, vo. cens, p. Hotli these la.'^t authors in contesting the doctrine ol Dumoulin on this point, admit, while they contest the prin- -•i()lf', llial his \\v\\ i> cnliraced IfV all feudists, and adniii 53 / ihu law even m ilie last class of easels given. It rnusl bit rcnK-mbered also liial in Franco the seifj^niors were absolute masters and owners of their liefs, wiiile in Canada tliey were owners, l)ut subject to th(j conditions originally im- posed in the grants. In conclusion on tills branch of the subject, I may re- mark that the argument of the seigniors has been rather to poini out, not what their obligation under their contracts and \\\{i arrets de Marly are, but what they are not. First, they say that there was no ol)ligation to concede and that the arrets of Marly and of 1732 are not binding, as they are in fact a violntion of their rights under the grants from the Crown. That the e(mtraet must bind the Sovereign as well as themselves, and that any interference with their acquired rights is sucii a violation of them as that no court can with |)ropriety recognize, tjiat is, tliat they were not bound to con- cede at all and not in any way restricted in the ])ropertyand enjoyment of their grants. That the obligation imposed on their grantors the Company of New France and tlu^refore on tliemselves, was nothing at all. Thai the arrets of 1711 and 1732 were nothing, that the arrets de retranchement were nothing, that the reunions to the Crown domain for breach of feudal obligation were nothing, that all was a mere threat, never intended to be inforced ; tlie^y were, in fact, 1 can scar- cely say what, a mere joke, une plaisantcrie feodale of the King, intended for what it is impossible to say. On this point I will make no further remarks. I consider the arret of 1711, as a declaration of the rights of llu; seigniors under their contracts of concession, a declaration ujade by the Miprcmc legislativ(^ authority of the country, of which the Colony was a dejjcndance, an authority which never was as it never could be contested, a declaration which never was in any way denied to b(; true, which was on the con- trary reccivfxl and recognized and acted upon during the •\h()le ppriod ofihe Frcncii floniination in this country, nnf s.t'. ;,tt"-.,f"i' .* 8-1 54/ only by tho represpntatives of tlic Crown, but by all the sei- gniors themselves. No remonstrance was ever made, still less was it ever pretended that this law was a violation of the rights of the seigniors, as now it is pretended to be. On the ('ontrary it was received by all as a just and true expo- sition of the feudal contract existing between the Soven-ign and his feudatories, an exposition which was reiterated in many declarations of the King, down to the year 1751), in number of grants en fief mnde by the Crown after 1711, an c\j)()siti{)n which the Crown, by its declarations, ordered its representatives here, continually and effectively to enforce. And now af'^r a period of 150 years, these titles are exhn- nuul from the tomb in which they had slept, and are invoked lo show that, because the Crown did not in all the grants impose, in direct terms, the obligation which the supreuif; legislator of France declared was the condition on which alone ihtse grunts had been made, they are not binding on the seigniors, and that they must be considered to be abso- lute owners o( their fie/s, as seigniors were under the law e to enforce this ol^ligation, the arri'd of 1711 was promulgated, lo explain and enforce this obligation and give this right of action to the ceimloirt to enforce it ; this arret declared that the idea of a compul- sory concession was inconsistent witii the idea of taking (leniers (fentree, or of making /jrq/<7s dejlej\ but action ^va.s given to recover back money thus improjjcrly exaclt-d. Then followed the arret of 1732, which reallirmed the law and gave this action and as a punishment for its infringe- ment reunited the land to the Crown domain. The lavs follow on the abuses to be remedied as they arose, and co- incide with the feudal obligations as understood and admit- ted by all. If these laws do not explain the relative rigl)t>' of the seigniors and censitaires in relation to their grants, their language is unavailing to do so. If the seignior were under these circumstances free to make their own condi- tions, dcfaire laloi to the censitaires in granting their con- cessions, then these laws may be treated as inoperative, but if sucli an interpretation is to be given of them, then, in the language of Dumoulin, it may be said " ce serait nov " pas dejouer de IcurfieJ] mais dc Icur seigneur. I conclude mv remarks on this branch. sK('()i\ I) PA i;t MU; lllK AKKKT.s rN QUESTION LAWS ()| ITUI.K I'OJ.ICY, (u'oRDRE I'UBLIC) i* Assuming tlierefore, that under the French doiuination, ;i uniform rate of concession existed, and that such a uniform rate was adirmcd and settled by the arret of 1711, and on the universal custom of the colony, and before that arrel^ ;he question necessarily arises, could such a law or such a custom be derogated from, by express agreement, between the seignior aid the ccnsitaire ? On the solution of this (juestion the \v hole controversy as regards the question of the cms et rentes^ as, I view it, rests. For, if it can be shewn that the rate of ccns et rentes could be settled by agreement, notwithstanding the mre^^f 1711, and the uni- versal custom of the colony, then the i)retensions, set forth by the censitaires, arc without foundation. If on the contrary, the usual and accustomed rate could not be derogated from by express agreement, then as auxiliary to and dependant on it, it becomes necessary to determine, what the precise legal enactments of the arret of 1711 are, and the remedy given by it, for its violation. First, then, as regards the character of the laws itself. On behalf of the Crown, it is pretended that the law is strictly d'on/re public^ and that any violation or departure from it, is absolutely illegal and therefore utterly null and void. That the law was passed in ilic public intercuts, forihi; political object of cnforcim: 'lie .■^eltlenicul of the colnjiy ; s ,v. ', "ir.h ■§ ''■ '^? 58/ ihfit llio scip^niors had rocoivcd llieir iijrnnls .is a froo afifi, on tliocxpressconditioiiot'tlistribntin^'llK! lands iiitlicsciifniorics to all persons dcmandini,' confessions lor settlcnKini ; — thai lor llio very ol)jeet of s(^ciirini,' M;ttleinenl, il was necessiiry to limit the jjroperly ol' liii' seii^niors in their sciijniories, iiml to change! what would otimrwiso have b(!en an absoltiic pro))erly, into a pro|)erty burdened v.itli lh<3 condition dl' concedin": at a certain ii\ed rate of eoneessic m -that itwiisa matter of hii;h public policy <>n llie j)art ol" the Oown, aivl that without such an oblii^'aiiou being imposed on the suii,'- niors the very object ol' tlu? grants to themselves would have be(vi altogether frustrated ; — lliiit it was a law |)ass((i entirely in the piil)lic interest, based on notit)ns ol' ])iiirlv pubru; considerations and |)oliey, and therefore in its vcrv natiu'e a public law, not founded on any teuiporary policy hiii intended from the xcry positioii of the colony to be enluiccd strictly. so Ion as lU'u policy existi'd, that i> so ion'' a'- there were liuuls for settlement in i]\c colony; — that I'niiii the very nature of things, sm-h a law must be considered ii< compulsory and as essential to the leudal grant from iln" Crown, for if j)erl'ect liberty had existed inlixing the rates il concession, it is clear that this great policy would or inii,'lii have been in pari, if not altogether, frustrated, and the mi- llement of the country, which was the great object of tlir Crown, a might have been entirely prevented, or at any niii indelinitely postponed. Tl le l(»regoinij: ma y be taken to be the ])rincipal, il noi Ui only, reasons which may be urj. 'ed on Ih 1 oini, lor determining that the law of 1711 is one Wordrc public, and inviolable. Arc; they such as to lead to that conclusit)n, ami that the law of 1711 falls within the reciuirenients of a law oiuirc n uhl ic (1) * . (I) I (iinu 1. I) OS lois, { 11. i;^. IKI. I it's inatieros liu droit ruMic sout ccllcs ijui rei;ardoiit I'ordn.' >uvor!iciiiriit lie cliaijuc elat, les laanicrcs il'aii[»eli;r a la puiss: llH'i r)i) / A law 1o Im' ronsidt'rcd !i [iiihlif law, «/\>/v//V' y*///;//c, jiHisi Im; oik- (Vaiiicfi ill ili<' |)iil)lir iiilcrtist, cmlx'aciii^ in its Mpnlicalioli tin' \\ liolc |nil»lic, cillifr id llic i^nivci'min'iit nf till' ('(iiinlry, «>r in )li<' adiiiinisfratioii ol iIh- laws ol" tin- coiiiitrv. 'I'hiis, laws rt'latiiiL,' to llic ( ivil status ol' citi/cus, |;i\vs rt'lalini,' to niarriairc, to tli<' adniiiiislralioii oi' jiotirr, to succession and so lorlli, an- all ])iil)lic laws and (rr violalcd. Miit tin- |)rivatr sli|)iilati>i()Ms ol' lands en scigncKriv is of private civil law, tt dr ilroil priri'tl cnnrrnfionnel^ and i< rei,'ulated by the aifrce- iiifiit of tin- parlies. These ai^veeinents Jiiay violate some jiriiiciple of die feudal law as rei,Mdatcd liy llie Custom of l';iiis. Hut the violation of this feudal law does not destroy ihc coiivi'ntions of the j)arties, il only t,dves rise to the pay- iiii'iil (if ccrtaiii dues or i)enaltii!s which have been imposed '' souvtMiiitu! Its Hois, les Princes ct les autrcs I'otontats par r urccM- '• sion, par uloction ; les droits ilu soiivcraiii, railiiiiiiislralion (!(• la '• justice, la inilico, les finances, les dilVeronti-'s fonctioiis dos Magistrals '* ct ties aiitres olTiciers, la police des villes ct les autres seiiildaliles. " Les iiiaticrcs du droit civil sont les eno-aociniais cntrc parli;ard de ce (proii dit (jue les successions ^oiit (lu droit public, le premier qui estic veritable droit public, est coliii il"i regarde I'ordre gOnt'ral do Petat, auipicl Ton ne peut |ias dcro-^er It' sfcoiul est celui qui est i'labli par rautorilc des lois jiiibli(,iH'S pour I utilitu des particulicrs, auqiiel par consL-quent il est pcnnisdo dcroger. .,1 i \ K ■; . ^. ' ;i in flic iiUi i( -1 (»l ilii i'l'i .. ■.ipciiuv, \vlit iifvcr till'?*' (',,11 vcnlion.s would iniorfcrc willi liis '( lulal lif^lils. TIuh iji, olsl and r»2nd artirlrs ol" Cuslom of Paris, in liniilini,' tin "jfigiiior, in llir disposilion i)fh\sftrf, to 2/3 docs not anniili the agnM'inrnt which tliir seignior lias made with his vassnl or consitairc, even if ho has transgressed the powers given to him by these articles, InU this violation gives ris(! to cer- tain dues and penalties in favor of the immediate superior of this seignior, who may exercise them, if he tliiiik« proper, without reference to the agrcment made by the seig- nior or vassal. It is a violation of the law or of the feiiflal contract existing between superior lord and his vassal, as regulated by the Custom, and tin; dominant may enforce his rights, if he thiuKs proper. IJul the contract between the seignior and ecnsitaire is not aflected thereby, except in so far as the property of the ecnsitaire, that is the land Qlicnated, may be embraced in the indiction of the penalties or dues, which have been incurred by the violation of the Custom. But if the lord or dominant aflirms the contract, or is otherwise passive, the contract stands good to all in- tents and purj)oscs. So with the arret oi 1711. The pe- nalty imposed on the seignior refusing to concede at the ae customed rate, authorizes the ecnsitaire to apply to tlic In tendant and Governor, who, by this arret, are authorized le concede on the refusal of the seignior to do so, on the ufiial and accustomed rate, and, on such concession being made. the revenues are escheated to the Crown. The arrit dl 1711 could have no greater authority than an article of tlif Custom of Paris. Both arc laws enacted by the legislativr authority. The Custom regulates the law of tlio feudal con- tract, so does the arrcl of 1711. Both proceed from the ^aiii'' source and are enacted lor the same object. The sovereign in his legislative capacity gives the law to the sovereign in his feudal capacity. The arret of 1711 could have had H" ^rcatci authority than if its provisions had been incor))i»r;i 01 / I'jil into till' Cii>tlom (tl Paris, Ih;1oiv its intrtKliulion inii) \\w (.'olony, and, as sm;li, it would have rcp^ulat- vd tlic feudal rontract in France, but it could |)oss(;ss no uroator authorify than it would have jJOssesHcd in France. Vow in France, it would liav<' n-yfulated the feudal contract just as the 51st and 52nd articles of Paris do ; and as such it would have given rights to the feudal lord i. e. the Sov- crcif^, on its violation, as the law provides for all other violations of the feudal contract. The penalty imposed on the seignior refusing to concede is like any other penalty in its nature and character. TIh; forfeiture of the land, or of the feudal dues on this land are like all other feudal for- feitures. It is a forfeiture in favor of the suzerain. This penalty was *o be incurred and enforced in a peculiar man- ner, that is, on the application of any person seeking a con- cession, and not otherwise, and on refusal of the seignior, the authority is given to the Governor and Intendant to con- cede in his stead and the dues are given to the Crown. It is a rule of law that whenever the exercise of com- mon law rights is restricted, and a penalty imposed on the violation of the restriction, the penalty only can be enforced, and it must be enforced only in the manner indicated by the law. Here the penalty is incurred by a refusal to con- fcdc. Can it be supposed that it was intended to take the property out of the hands of the seignior, the grantee of the Crown, and that authority was given to the Governor and Intendant to concede for him wilhoiit any apj)lieatJon what- ever to the Governor and Intendant ? If so, the grant from the Crown was illusory, it conveyed no properly whatever to the seignior. It must have been a mere agency. It could have conveyed no estate whatever to the seignior. He must have been a mere agent of the Crown, having himself no right of properly whatever in the grants. Such a pretention is clearly incompatible with every principle of law wliieli I'egulaU-s grants of tliis description: for, the vrry idea of i :^ '^ !.' ...i,- > . I 4 62/ (orrcitiirc, for violation of any condition of a i(rant, involvis the idea that a ;,'rant lias been iiiadi.' and that thi; piopcrtv has |)ass(!d to tlie ^Tanti'c. It is thcrid'orc a viohition ohhr condition ol'thc i^rant, and, if so, the forfeiture is incurrod in favor only of the person in whose favor it has Ih-i n >\\. pulatctl. In the am'l ol 1711, it was stipulated in favor nt the Kinij^ as feudal fi}(zcrain^ and therefore it is a violation only of the feudal contract; and, if so, it must Ix^ reii^iiliiicd and enforced as all other forfeitures of a siinilar doscriptidii under tli(» feudal law. Cl- )lll The feuihd system is u system of j)enallics and for lures for violations of tli(> feudal contract. These peiiali can only be incuirred and enforciid in the way pointed i i)y th(> law, but the nature; and the character of tin; lawciiii- not be chani^'ed thereby. Thus the j)enally imposed on ilic s(.'i^-nior for not setllim;' his seii^niory was that it bliould he reuniteil to the domain of the ('rown. The penalty im- ])osed on the seii^nior for refusing to concedi; at the accib- omed rates, on the rcijuesl of the ct)h)nist, was that tlie (in- vernor and Intendant should concede for him aiul thai shoidd forfeit his lucrative rii^hts. The law of 1711 impos(.'s a penalty and points out onr way of incurring this penalty and one way of enforcini; ii. (.'an it be extended by implication to every other thing doin' which by analogy may by supposed to have been iiu liuli'l in the law ^ It is eipially undenia])lo that jx-nalties cannot l)e e\ ded i)y analogy, and that they must Ix; slric^tly lii Icil- nitod whenever the penalty imposed, on acMs which, \\ itlionl ili' assistance of the law, would not, by conunon law, involvi Cllll any ])cnalty whatever, lien; it is impossibh; to coiit that without tli(! aid of the \\',\\\ be made at the usual and accustomed rates and with- out th(! imposition of any charge, or the taking ol' money lor lilt' concession, and it provides one moch:; of lorleitun.' lor its violation, namely, on apj)lication by any jjcrson lici'. to (li'd ire, by its own authority, tlu; nullity of the act (lon(> in violalio/j of it. \ow, the authority given by the act of 171 1 is a judicial authority. The aimulling a contract madiMU viiiiation of th(! arriJl of 1711, umst of necessity be a judicial :i«-t. II the (/r/vY of 1711 does not involve the authority of iinniillini,'- a contract, when no api)lieatiou is made by any party who has been refused a concession, tli(.'n the law can- not, in its very nature, be a law nce- sion voluntarily entered into, or have granted a eoncession in the absense of any apj)lieation lor it. It must not be for gotten that, by the law itself, no diseretion is given to ihc Governor and Intendanl ; their authority is ch^ar. It is td grant a concession only on refusal of the seigneur to do so. He has no authority to enter into the consideration of aiiv otiier matter in contest. The ordinary tribunals of the Co- lony had jurisdiction over all such matters in controversy The Governor and Intendant's authorily and jurisdiclion were limited to the one case provided for, viz, Ihat of a re- fusal to concede and no other. Tlu; ordinary courts of jus- ti(!e in the Colony luid no jurisdiction whatever over the ease, the single case provided for by the arret of 1711, and no well authenticated case can bo cited, in which under thi; French (iovcrnment such an authority was ever exercised by the Governor and Intendant ; nor is there any case cited, where any apj)lication was ever made to interfere witii any contract entered into between the seignior and ccnsilaire in relation to the rates of concession. In determining the character of the law of 1711, i; must be viewed apart from its stipulations which, in lliciu- selves, do not bear the character of a law d^ordre imblk oi decree any nullities whatever, either as a public lawliavina for its object the great public policy of the empire solely in view, and as involving purely public considerationj*, and therefo'c so absolutely binding in its provisions, as to over- ride all common law rights, but so, solely on the ground that the state policy of France so considered it, or as a law regulating the civil rights of the colonists and seeuringti' them the right of obtaining a grant of land en censii'c^ on termo which they had it in their power to demand. In examining the arret of 1711, under iIh- firs^f of tli^M two aspccls, viz; thai of tlic public policy of ihc cnipir . m I 65/ in its large sense, as having purely nnliohal and ))olitieal considerations in view, independently ottiie positive enaet- iiicnts of tlic law itself: then it necessarily forms part of the public law of the empire pos^icssing, for tlie time being, sovereign power over the colony ; and such public law would be considered binding only so long as the sovereign state possessed dominion over the colony. For, it is untpies- tionable tluit such public law only exists, so long as tliis dominion exists. it would necessarily Ibllow that, when this colony passed under the dominion of (ireal Britain, that il could no hiiiger exist, and like all the rest uf the public law of Franci;, il ceased lo have force whcm iho s()V(ireign power of Franco ceased to i.'xist in the colony. The imr(dy state; poli(!y of France, altho' it allects the operation and application of laws, not themselves in their eniU'tinents, (Vordrc publit\ can never hv. su|)pose(l to have lieen tranferreil to the new dominion so as to apply to those laws, which, in their nature, withoni this state policy, are III" droit cwil privc. To give thc'se laws the character of public law, (Tordre public, under tlu! Crown of (Jn at Bri- tain, some declaration to that etlect must have been made and the law of 1711 umst remain what it has ever been, in my opinion, a law exeliisively regulating the private rights ol the inhabitants, in relation to concessions of land. If examined vmder its other aspi'ct, namely, that of rc- 1,'nlating the civil rights of the inhabitants of the cohniy, et (Ic droit ciril privc, \hpi) it did notecase to exist Ix'cause all civil rights under the civil and customary laws of France .verc guaranteed to the inhabitants of this colony, at the 'inie of the cession of the colony to Cireat Britain, lint as ii purely (.ivil right, it nuist be regulated and determined as all other civil rights are regulated and delermined, that is l)y interpreting the law by its own enactments, and as such ilie«nv;/of 17 U gave the right (o every inhabitant to ilemand y <■ i .;,' ^■ •j^- iV\'] i •', M ■ '..' ■>' i;' (U> I ;i concus^iuii c)l land uii llif Um'iiis ami t^oiidiliuiixd ulhr-r sfi tiers ill the seijj^niory, but it did not prevent him niakiiii,' hiv own eontract with the seiii^nior ; and supplying, and e\en admitting that the seignior was bound when requested, to grant a coneession at the usual and accustomed rate, and that he might have been compelled to make the concession, at such rates, his conceding at higher rales was, as has been already observed, only a violation ol" the feudal con- tract which he, the seignior had made with his sovereign lord, and which his lord alone could complain of and wiili which lu^, the censitah'e, had nothing to do. It is to be ob- served that there is a marked distinction between the arret o{ 1711 and that of 1732. The arret of 1732 wan framed to j)rohibit absolutely all sales of wild land in the colony, and thereby to secure the immediate distribution ot the lands among settlers at a low rate of cens et rentes and to enforce actual settlement by the colonists. This am'/ therefore declared all sales of wild land by the seignior to the censitaire who had taken a concession nominally, but also had paid a sum of money for the concession to the seignior, as absolutely nidi aird void, and decreed the reco- ""vy back of all money j)aid on such transactions. liut in the arr^t of 1711, no such nullity is d(;creed on concession made at a higher rate than the then accustomed rates, and it ap|)ears from the correspondence of the Intcndants at the time with the Home (Jovernment, that such a law as that of 1732 was necessary to be promulgated, to enable persons, who had so paid for concessions, or bought land, to reco\ back the purchase money. Now, it is clear that before the arret of 1732, the obligation of the seignior was to con- cede and not to sell, and the arret of 1732, did not alter or extend the obligation of tho seignior, which was, I think, sufficiently apparent before the law of 1732, that he should eoncedc and not sell. But until the arret of 1732, a sale 1>} the ^f.'igaior was <-'nly a vi^.ilutiua of ]ii;> feudal conli"u' G1 f ;is (:realt' 'li'^ oiii^iiial tyrant and llie ci-nsilaiiv had no remedy under llu; law bcloro llic arr^t of 17.'i2 lo obtain payment back of the money which he mii^hf have given for the concession. But the Government had a high ])olicy in passing the law of 1732, as is clearly shewn by the corres- jKHidence of the day, and to secure the carrying out of this policy, the law of 1732 was passed. But there is no such nullity decreed in the act of 1711, where contracts were voluntarily entered into in violation of the law, and it is impossible to decree a nullity where the law has not de- creed it. ■''i But even supposing that by the force of the law of 1711 all contracts were null and void which had been ente- red into in violation of it, as being contrary to the public policy and public law of France, then the efl'ect would be t(» (ieelarc these contracts absolutely null and void ; no other ronelusion could be arrived at, for, if passed in violation ot' public law, iVordre public, they are absohitcly null, as the hw supposes them never to have been entered into. The contract could not subsist at all, no alienation of the land could have taken ])lace. Such a contract is not voidahle, but absrilutely void, and if must be absolutely set ;i'rivate civil nature. The object of the arret of 1711 was to prevent sal(!s of land and to force seignior to concede a simple titre de redcvances, and, as I ihinli, to impose a limit on the rale of the redevancc. Can iho.j. the lefltM-t of simply im|)osing a limit on the rate ol' (jjnccssion ^b,uig(! the whole character of the law itself ainl convert what was imdcniably under that law, a matter d purely private civil right, into a public law, d''ordre public which never could be infringed in any wny or manner liy contract or ngreement ? It is clear to my mind that it could not. The mere motiv(>s in passing a law must be earefiiiiy distinguished fnmi the provisions of the law its(df. All law-; whatever are passed in tlu; public interests to subser\'' souH' '_)ublie object ; but that in no way makes them public laws in llie sense contended for in the questions submitted. The laws of 1711 w^as only another limitation imposed mi the feudal law, just as the. 5' and 52 of the Custom an limitations imposed on the tree use and (mjoyment of il)c seignu > < f his Jlcf, l)y limiting the jci:, thereof to I. In iliis colony, this limitation of the jcu de fief, as it existed in France, was rcmovetl, by the arret of 1711, and, in its >*tcad, a limitation was imposed on the rate of cens et renter *.r'-"C-^'i" 6df to be paid for the concession. Kotli wero laws to regulate tin; feudal contract, and not to change the character or na- ture of the law which was to regulate that contract. The law of 1711 does not embrace the whole public. It grants a privilege to a certain clase only, viz, those who might l)e desirous of obtaining lands for settlement. In this respect, therefore, it cannot be said, to fall within the (icfinition given by jurists to laws iVordre public. This pri- vik'gf might have beer therefore renounced. This renun- ciation could neither have alleeted the genc^ral operation or application of the law, or have interfered with others desi- rous of cluiiiiing the same' rights and privileges. If the Crown had intended to have extended tlu; operation of the law htyond tli(! ease provid(!d for, it would have done so. The public interests were thought to be sullieicmtly secured, first, by tlie pt)wer of reuniting to the Crown the whole seig- niory, when lh(^ seignior did not si'ttk; his seigniory, and secondly, by escheating the lucrative rights of the seignior wlicn he refused to concede. If these had not been con- sidered by the Crown as sutiieient to secure the carrying out of tli(.' policy of the empire, no doubt the wisdom of the Crown would have jjrovidtnl for it by the promulgation of some otlnir law. It has not thought proper to do so, and it is not in tiie po\v(.'r of other persons to do so. The contracts, therefore, which have been voluntarily entered into by the eensitaire with the seignior, are valid and binding contracts, altho' they w(^re made in violation of die feudal contract entered into by the seignior towards the Sovereign, when he received the grant of his seigniory, and ciinnot he now set aside. The contract, therefore, in so far as it relates to the re- dcmmces, must Ix; maintained, altho' such contracts impose ehargcs in violation of the law of 1711. These charges, ■^f 70/ ulllio' illegiilly iinposed, must still hv (.onsiilercd bindiiiu for tlic same reasons thai the ccns d rentes are binding, th»; law itself not being one iVordre public. As regards the question of reserves^ my remarks will be made when tlm matter comes under consideration THIRD iwirr. on JURISDICTION OK rot'RTS. 'riit; question Hubmilted to the considemtion ol' the conrt is to determine whether the jurisdiction given to the Governor and Intendant, under the arrtit of Marly, is vested in any tribunal now in existence, and if ever such jurisdic- tion lias been exercised ; if not, why it has not been exer- cised. I take it for granted that it is unnecessary in the solu- tion of this (juestion to go further bade than the arrets of Marly themselves, as, up to tliat period, no such tribunal as that created by the arrdt existed in the colony, for the pur- poses of that arret. Moreover no question of any other ju- risdiction can arise in reference to these arrets, as all others were done away with, in relation to the subject matter of these arrets; and as a new jurisdiction was created for cer- tain especial pur))oscs, and whicli never could have been exorcised until the passing of the arret of Marly. It must be observed that up to the arret of Marly the ju- riwliction given to the Governor and Intendant in relation to lands non defrichecs under the several airets de retranche- ment were considered to be a jurisdiction of a judicial na- ture. The reunion was the act of a court constituted for the purpose of carrying out the great objects of the Crown, and then was added to the reunion a re-grant which formed no part of the judgment whicii reunited the lands to the domain "I the Crown. A glance at the various arrets dc retranche- inen( '.vili ?hen- that a judgment of forfeiture for not havinu i < :,«•■( ,< ■i':. 1 '! ' "ih .it 72/ mis en valeur^ non dcfrichd iIki hinds granted en se/^nrj/riV, was ono tiling, and llio re-f,'rant was another. 'I'ln- oni- might have been, and it was in fact, a judgnicnt, l)ui otKc th(! judgment was pronounced, and the seigniory was ri'- united, then the judieial authority vestml in the Intcndiiii! ceased, and the authority to reconccde, which was a |)nrtly arl)itrary act, began ; but this act was not judicial in its n!i- ture. It was th(! administrative act of the Intendant, stand- ing in the room of the i)ro|)rictor, the Crown, to wht)!*c tlo- rnain the escheated land liad been reunited. This was not and could not be a judicial act ; for the whole scope and ol)- jf.'ct of the arret de relranchement was to j)rononnce a forlVitiire by reason of the breach of the feudal obligjilion iniposcd on the grantee of the Crown. It is clear that once the forreitiin' was pronounced and the rcun-on effected, the subsequent grant of the Crown was a matter of option entirely and in no way connijctcd with, or dcpemlanl ii|)(in, the act of reuniting to the domain. So the first part of iIk; arret de Marly reasserts this obligation of the seignior to rnettre en valeur his seigniory, and again orders tlio forfei- ture of the whole grant ft)r non-fulfilment of this obligation. But the second part of the arret which relates to the conces- sion by the seignior, en censive, and his refusal to grant at the taux accoutume introduces a new feature in the obliga- tion, and, for the first time, authorizes the application, mi the default of the seignior, to be made to the tiovernor ami Intendant ; and it is this authority which is given especially to the Governor and Intendant in the words of the arret, and which creates the new jurisdiction; and it is with reference to this new jurisdiction, which never before, under ihe arrets de relranchement was exercised, whicii it is ne- cessary to examine. The words of the arrdt de Marly are as follows, after speaking of the general reunion of the whole seigniory faule de def richer or de rnettre en valeur ; on the ordinanit; 7.{ / 1,1 iIr; (Juvi'iliDi :iiul liiti'iulanl ; " Quu luus Ics si'igiifurd • ail dit pays tie la Noiivt-lio France aycnt a coiu-ciUt aux *• liiibilaiis les tcrrus (|u'iU Icur dtMiiandtTont ilans Icur Mci- " j^nc'urio a litru de n-devaJiccM et .sans rxii^'fr d'nix aii- " cunt' Homine d'arjTcnt pour raison dcs ditcs coaeessiDnH ; -Jii- " non, <'t a I'aiite do cu I'aire, peniu;! aux dit.s liabilaiis dt! " it!ur dt.'inand'jr los dilcs terres par soiuuialion, cl en cas " do r(;l'iis, dc se poarvoir pardevunt lu Gouverneuret Ijeu- ' tenant gt;nt';ral et I'lntendant au dit pays, auxquellcs Sa '' Majeste ordonne th; conct'-drr aux dits habilans les lerres " par eux dcmandees dans les dites seigneuries, aux niftu) "< " droits imposes sur li's aulres terres eonccdees dans les " dites seigneurie.'; jiiels droits seront payes par les noti- " veaux liabitans ciKa; les mains du receveur du domaine' " de Sa Majeste, eii la ville de Quebec, sans que les sei- " f,'neurs en puissent preteudre aueun sur eux, de (luehjuo '' nature qu'ils soieut." In this part of the arret wideh, lor the first time, gives a riglit of action to u colonist to demand a concession, fliere is not a word of reunion to tlie domain «»f .Ik; Crown. Tiie right of action given by tiie arret is to enforce an existing obligation on the part o'' tlu; seigiuor. The seignior was by law and by his contract towards his feudal superior bound to concede ; but before the arret of Marly, the right of enforcing this obligation remained with the Crown, tlie grantor of the seigneur: and the arret now, for the first time gives a right of action to the colonist desirous of obtaining the concession, toenlorce this obligation of the seignior, en- tered into by him towards the Crown, when he received his grant; and creates the tribunal before; which he might sue {sc pour voir), to enforce this right, 'i'his was, I think, a purely judicial proceeding ; the words are, after demantl- ing the concession, '' dc .sc pourvoir etc; " now on the re- fusal ol the seignior to concede, what was the deiriand In 'lie (iovcmor and Intendani .• Suieiv it was ihc coneessjim. w ■■'i. 4'' m ^ //, ^/: '/ /A IMAGE EVALUATION TEST TARGET {MT-3) 1.0 I.I |S0 ™^ |56 ||3^ t 1^ M 2.2 1.8 1.25 i 1.4 1.6 Photographic Sciences Corporation 4 // {./ ^ ^^i^ i^.% W.r A y. ^ iV ''Q 'V^ ^ O^ %^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 5» ^ v.. 1 s IV • -T ' .. ■■? I': !. : h H 4 74/ and that concession which he had formerly demanded from the seignior, and which had been refused. Now llic de- mand before the Governor and Intendant w as against the seignior. The seignior was therefore the defendant in the case and it was to enforce this demand, and to compel the seignior to fulfil his contract. How this can be any other thing than the exercice of a civil right before a court of justice, I am at a loss to conceive. But there is no order to reunite to domain of the Crown, before the concession should be decreed by the Go- vernor and Intendant. The Couri, was created to enforce and carry out the law ; and the penalty decreed on the seig- nior for non-compliance with the law, was, not that the land should be reunited, but that the rents thereof should be paid over to the receiver of the Crown domain. It will be ob- served, as has been already stated, that in all the arrets de retranchement, the forfeiture was tlie reuniting of the whole seigniory or the reduction of seigniories of too large an ex- tent, to a smaller extent ; but here it is not a reunion of a part of a seigniory, but a loss to him, the seignior, of the pro- fitable rights or dues accruing on the lands which he re- fused to concede. Now, it may be argued that such a for- feiture presupposes a reunion to the domain of the Crown, before the Governor and Intendant could grant the conces- sion refused by the seignior. I do not think so, because il is not said so in the arret. It may be that in efiect the for- feiture involved a loss of the land, but that cannot change the principle. It was a concession for the seignior on his refusal to fulfil his contract, and the grant was to be given to tlie man who claimed it, on the authority of the law giv- ing the right to enforce the contract. (1). (1) Guyot ch. 3, p. 142-3 and foU. " En general il n'y a que le " propiietaire du ficf ou de la censive qui puisse r6unir. .Te m'expli- " que : celui qui posscde proprietairement le fief dominant ou la di- « recte, pent seul reumr Ic sous-fief ou la roture qu'il acquiert propn ■ ^''.' 75/ The reason is apparent why no mention is made, in this j)!irt of lli(! arret, of any reuniting to tiie domain of tiie ('rown. If it iiad been the intention of the King to order a reuniting to the domain, he would have said so, as he had (lone in all the other cases of relranchement or reunions, iind as he did in the first of tlie arrets de Marly. But in merely ordering the forfeiture of the rents of the land to be conceded, he, I think, shewed his intention was not to reunite and dismember the mouvance or corps de fief, but to iniliet the penalty pointed out. It cannot be argued that because ihe King makes the concession, that therefore he must be presumed to have become proprietor of the land, before ho could order the concession to be made, and this implies ah necessitate a premiere reunion. I don't think so ; for the concession is ordered to be made not as feudal suzerain, •• tah'timent ou vice versa. Celiii qui possede proprietaireinent le fief '• servant ou la roture chargee de censive, peut seul r6unir, quand i! " acquicrt proprietaireinent le fief dominant ou la directe d'ou le sous- " fief ou la roture qu'il a, sont tenus, et tout cela a lieu a cause du " fief." " II est certain que la reunion se fait par la seule consideration du i' fief. Ce principe auquel je prie mes lecteurs de donner leur atten- '' tion entidre est tir6 de toutes les coutumes. Ce principe est avan- " CO par Brodeau sur I'art. 53, ou il debute par ces termes remarqua- " bles ; Ces mots, seigneur de fief acquerant en sa cetisivc, " marquent deux choses, la premiere que la reunion se fait (par la " seule consideration du fief) et elle a lieu a Tegard du seigneur de " iief, et non du seigneur haut-justicier. Fief et justice n'ont rien de "commiiu." TJuplcssis snr Varis, des Fiefs liv. 10, uses Brodeau's words. " Voila le vrai principe. Sa raison est que le sous-fief ou la '• roture, sont une Emanation du fief, et non de la justice, qui n'a point " de table coiumo le fief qui est appele la table du seigneur." See also no. 29 of same. See also Herve 3 v. p. 393. " Premier principe. '• La reunion s'entend d'un fief proprement dit a un autre fief propre- " ment dit, ou d'une censive a un fief." And tben follow the distinc- tions affirming this principle. i i 1 t ■1 i ■ n': "^ " u 70/ but lliu jiulges c)( the tiibiinul are ordered to make it in tin- name of the law, which was nnactod to enforce the oUiga tion of the seignior. It was not a concession by the Crown as the feudal superior and as proprietor of the land, but the act of the sovereign in his political capacity, enforcing the law, through bis recognized judges and the tribunal erected for tliat purpose. The authority, therefore, given to the Go- vernor and Intendant was to enforce the previously existing obligation of the seignior, and the judgment to be rendered by them, was the concession itself which the seignior was bound to make ; the judgment of the Governor and Inten- dant vaudra litre de concession. They were to make the concession instead of the seignior, but the seigniory was not dismembered. The forfeiture of the dues did not change the position of the seignior in his seigniory, nor of the ccn- sitaire and it was only intended as a penalty on lae seignior for his violation of his feudal obligation. It cannot change the argument that this forfeiture might have been applied to all the lands of the seignior in his seignioiy, if he had re- fused to concede them ; for he would simply have stood as the man bound to fealty, but he would have lost his profitable rights, as he might have lost the right of bam- lite if he refused to build a bannal mill. The act of the Go- vernor and Intendant, apart from all authorities or analogy to be derived from the arrets de retrancJiement and the jurisdiction given by these arrets or any other ordinance of the King, is a purely judicial act done by a tribunal erect- ed for a particular and special purpose, but judicial in all its parts and altogether independant of any administrative act ; for the judgment granting the concession must be sup- posed to be the act of the seignior as he was bound to make it by law, and the judgment was the title which the seignior should have given. The order to pay the dues to the re- ceiver of Crown domain in no way affects the character of the judgment. It was to be one judgment and for one pnr- 77/ pose only, that is lo order and adjudge ilio oonression on refusal. It may be added that, if a previous reunion had ever been contemplated, why should the King, in the latter part of the arr^t of Marly, have declared, that the seignior should never claim any right over the lands of the censitaire which had been conceded by the judgment of the Court. If these lands had been previously reunited to the domain of the Crown, surely such an order would have been altogether un- necessary, and it is not to be found in any of the arrets de retmnchement or reunion, ever ordered by the Crown be- fore. This alone would be suflicient to set aside all idea that any reunion was intended to be effected, in relation to the concession en censive by the Governor and Intendant, Another distinction which exists in relation to the reu- niting to the Crown, is, that by all the arrets de retran- chement or reunion, or when the whole seigniory is reunited to the domain of the Crown, it is always done at the demand of the Attorney General, whereas in relation to the conces- sions by the Governor and intendant, under the arr^t of Marly, when the seignior refused to concede, the concession was ordered (not any reuniting) on the application of the in- dividual entitled by law to obtain it, which, in my opinion, clearly points out the difference between the two cases pro- vided for by the law. For, if any reuniting had been contem- plated, the Attorney General would have been ordered to act as he was always ordered to act, when the crown domain was in contemplation. Here he was not, and therefore the act in toto was a purely judicial act and nothing more. The argu- ment, that the right of the inhabitant to obtain the concession is a droit acquis, I think, is conclusive. The droit acquis must be by virtue of the law or of a contract ; here the law of nil affirmed the existence of this contract of the sei- gnior to grant the concession. The application therefore of ■ ^ I* V .ii H 1:1? !^ I; .'E If !, ; 4^ 78/ the inhabitant, was to enforce a contract and the proceeding before the Governor and Intendant was just sucJi a prococ- ding as would be adopted before the tribunals of this coun- try to enforce a contract. It was therefore under the French Government a judi- cial act. But it is pretended that since the Crown of En- gland obtained possession of the colony, there has exissted no court possessing the jurisdiction of the Governor and In- tendant and to enforce the provisions of the arrdt of Marly. A glance at the statutes must settle that. The first statute creating jurisdictions, necessary to refer to, is the act of 1794 (34 Geo. 3, ch. 6. It is pretended that, as the courts of the Prevost^, Justice Royale, Intendant and Conseil Supirieur are alone mentioned, it did not in- clude the Court of the Governor and Intendant under arret of Marly. But this opinion is untenable, for this act gives in the first instance general jurisdiction on all matters what- ever, of a civil and commercial nature, admiralty jurisdic- tion alone excepted. If then the authority given by tlie arrit de Marly to the Governor and Intendant, was a judi- cial authority, and the matter to be settled was a civil right, in relation to property litigated before them, on what pre- tence can it be pretended that the act of 1794 did not em- brace it ? As much may be said of the courts created before this period, I mean the Court of Common Pleas in 1764, and whatever other tribunals may have existed before the introduc- tion of a proper judicial system in the colony. In the view I have taken, I do not consider it necessary to analyse further the various statutes which have created jurisdiction in this colony. For, if the act itself done by the Governor and Inten- dant was altogether a judicial act, doing for the seignior what he was bound to do by law himself, and no more, then the sta- tutes giving general jurisdiction over all civil matters,andnot in any way especially excluding the court of the Governor and >l (; 79/ Intendant ; the question can admit of no doubt. If it were necessary to enter into a more detailed analysis of the clau- ses of the acts, it could be shewn beyond contradiction that this power existed in and was given to the courts of justice in Canada, after the conquest ; but such examination would be useless. (1) It may be stated, as a matter of fact, that the Courts of justice have exercised all the powers given by the arrets of of Marly, and have in many cases acted on the arret of 1732 also, and that the claim of the colonist to obtain a conces- sion under the arrdt of 1711 has been allowed so far as the right of action is concerned ; and I believe that such exer- cise of jurisdiction has never been or at any rate very sel- dom been called in question. This fact also establishes the position that in the opinion of the Courts of justice in this province,the laws of 1711 and 1732 had not fallen into disuse, but on the contrary they were even considered to be laws in force and which the subjects of His Majesty might, invoke in support of their civil rights. (1) Sec. ordin. of 1764., Quebec act 1774., 14. Geo. Ill oh. 38. 1777, 17 Geo. Ill, c. 1. ' ■; ^^ ' Y- FOUllTII |v\KT. Oy \V A T K R COURSES. I' ■ ;' ■ I i' ' :4^ i 28th Question. — What were the selgnior^s rights, ui the same period, over unnavigable rivers, rivulets and othci running ivaters ivhich passed through, or bordered upon, the lands of his ccnsive, as well as over the lakes and ponds si- tuate wholly or in part therein. 29th Question — At the time of the cession of the coun- try, were the seigniors of Canada the legal proprietors oj these waters and unnavigable rivers, or did they possess the right of making use of them for industrial, or other purposes, to the exclusion of the censitaires. 30th Question. — If this right then existed, from what source was it derived? was it a feudal right, or did it belong to the class of rights designated as justitiaj (droits do jus- tice) ? was it recognized by the Custom of Paris, or ivas it estahlished by laws promulgated expressly for Canada '? 31sT Question. — Was the dominium (domaine) over rivers and other unnavigable ivaters incidental to the admi- nistration of high justice, (haute justice,) and could it be claimed by any seigniors other than those who were entrust- ed with a police jurisdiction over such waters, and who pet'- formed the duties of high justiciars ? If it ivere so, did those seigniors lose their dominium over the rivers, and their ex- clusive right to those waters, when, by the cession of the country, the administration of justice became the cxchsivr attribute of the Crown of England i^ 81/ 32ivD Question. — Ought the properly of the seigniorH in ^innavigable waters to be divided, like the property in the soil, into the dominium dirccliini and the dominium vililc ? And could this division exist in any other way than by al- lowing each censitairo the possession and enjoyment of (hose mters within the limits of his conceesion. The above queistions arc those which are to be answer- ed by the Court, as tending to define the extent of the ])ro- perty of the seignior in all water courses, eaux non-naviga- blcs, in Canada and the examination of the titles under wliicli this property is claimed. The title of the seigniors produced before the Court may be divided into three general cliisses. 1. Those which expressly grant to the seigniors the rii,'lil of property in all rivers and water courses witliin ihe li'iTitorial extent of the seigniory. 2. Tiiose wliicli grant the i(.MTitory without any express mention of the rivers ; and 3. Thuso which in addition to the grant of tlie seigniory ac- cord, at the same time, the rights of justice. I will speak only of Zrt haute justice ; as regards the inferior justice, ?>ioj/- enne et basse, it is not necessary to refer to them, as no right of property in the water courses or rivers, is claimed thro' tliem. I think it may be stated as a fact, that in all the titles wliich expressly confer Ics droits de justice, these rights are conferred after the grant of the fief and are added in words (]i>>linct from the grant of the lands, and as something bey ond what the grant en /ie/ itself is intended to convey. Some of the grants are given en toute p>ropriete, justice et seigneur ie; but this in no way affects the grant itself; lliey cither give or do not give in some form of words, droits de justice ; but in all cases they are rights, which are distinct h'om, and independent of, the property granted. The whole seigniory granted would pass to the grantee as effectually it the words droits de justice were not there, and whai- fiver rigiits of property these droits de justice may (ionvey, 82 / '1 ' |L If in m llicy are riglils of piupurly dislinct Irom tlic lenilorv [inu priete funcivre) which passed by ihe coiict'ssiun en lief. In examining iho subject, and bcfurL' passing' to the grant-, from the Crown, it becomes necessary to det(>riiiiiie in whai manner the Crown itself owned and possessed these waters, As far as Canada is concerned, the Crown of France, a . sovereign over tiie whole territory of New France, possct^sod by right of sovereignty the jjroperly in all rivers. The pcb- session of the Crown in New Franco would be rcgulalL-d, I take it, unless otherwise declared, by the public liiw ol France. Up to the year 1583, (1) all rivers whether naviyiihlc or not, were possessed by the great feudatories of the Crow., whether by right of title, possession, or usurpation, it is i.u! now important to discover; but as the possession of riv(;rs was a source of great revenue to the proprietors, by the im- position of taxes on them, the attention of the King wiis drawn to them and by the ord. of 1583, the King for the firs: time sought to appropriate to himself those rivers which were navigable. This ordonnance was followed by tiio or- donnancc of 1669 and that of 1683 by which the King appro- priated to himself the great navigable rivers of the King- dom : (2) and by this ordinance the whole of the lavigable and Jlottable rivers were reunited to the domain of the Crown, and from that day all navigable rivers became the proper!} of, and fell in the jiublic domain of the Crowm, subject how- ever to the limitations contained in the ordonnanccs ilicm- selves. The cliect of these ordonnances was to leave all other rivers non-navigable where they were before their passing, viz, in the hands of those powerful seigniors who had appropriated them to their own use. These remarks are intended to point out the distinction which existed by the public law of France between (1) fSeo Henrioiidc Pausey, Des Eaux, p. 639. .Fiefs, Presc. iSi and iiKiiiy others, Ci) ^nQ Rives pp. 40 to 41. iii'.--i^fj,fli livers iifivit^ahlt.' and noji-nnvigfiblf. Vlui i'lr-A ilislhiction is, tli;U )iavii(;il)lt; rivors wrro considori'tl as liij'liwavs iitid \V( r(! Iii'ld by iIh; ('mwn lor tlu; public; uses, and that JlOll- iiavigable rivin-s were (Uni.s le du}iiainr. privc, (I) The Crown, lIuM'clbrc, al tlie lime of tlu^granls tnjicl\ possessed the right of jjropcrty in all waters in New France ; llie navigable waters were possessed under the limitations (if the public law of Franee, but the non-navjgable rivers wore possessed by the Crown as any other [)art of the Cnnvn iliMnaiii and notsnbjei;t lo any public use, for, not jjcing na- able, there was no ])ul)lie general iis(! lo which thev VI! con ('(* 1(1 l)e aj)plied. In looking to the grants en Jicf i'i-iuu tli Crown, as above stated, they maybe divided into thr 1,'oneral classes, and for the belter examination of l!ie sub- jcrl, let us take; that class of grants where no sjx.'eial men- tion is made of rivers, and where llu; grants were made Viiilioiit/u.s//t't'. The non-navigable rivers are either those v.hicli travers(3 the territory granted, or they bathe the ter- ritory only . Did these rivers pass with tin; grant of ilie torritt)ry en fief'} 1 take it to be umlvniahh' under the au- llioritics above refered to, that if these rivers were )]ot li(dd by ilic Crown for public nses, that lliey passed to the grautet? 'vith the grant of tlie fief and seigniory. In speaking ol' pnbUc uses, I do not speak of the right of supervision \\ liirh nieroly regulates the privntc use of the livers, wliieh right i»l supervision is (juite distinct from the general use whieli ilio public has of navigating or using all public highways. (1) See Hives pp. 4li to -1-5 where a list of autliors is i;iveii, oiip ^<'t protcndiiio- that the property oi pUitcsrivic/'cs is iu seigniors, fiiul the oilier in the riparian proprietors, but reference is here made to i'lem solely to establish the distinction already announced, that the little rivers are in the domainc j^i'ive, and are not classed as navigable rivers belonging to and in the public domain of the Crown, for the uses ••t'tlie public. ^ce ChampionnierG pp. 18 and following. !'■•!' IM: 84/ Tills Im mow pcdioo r<*c:nl!ilion, wlilrli no (lun>»t invist o\i>t soini'wiifn', but it is jX'rrcclly cdiisisffiil with tin* cxistciici' of till,' privntc! rii^'lit in tin; thiiii,' ilscU'. Tliry passed hy iln. same iitl(! that tlin t(^rrilory its(!lf passed. TIk" \vat<'rH Inrin- (>d pail, of lli(! Jh'J' just, as iIk; land did. 'I'liii saiiu! kind ol fill(; j)assc'd Ixdli. TIk; seigniory fVJ. ,//>/" passed as a whole. Tlic law wliicli ri'^Mdat(ul tlio laud, would n.-jL^tdate tlic wa- ici's ou that laud. 'J'Ik! droits dc Jicf wore the Ham(! in bolli. 'I'lio waters traversing' tlio Jicf jiassod us a part of the Jivf, Tlio i,'rant(;c possessini^ both Ijanks of the rivers traversini,' liis seii(ni()ry, neeessarily beeame j)roprietor of the waters wliidi (lowed over his land. So, if the seignior as owner of both baidIrainin,'.:: lliose enormous privileg'"^ (daimed by the JKU.d juslicicrs in I-'rance, is evidenee siitli- cient that iliev wi're obuoxions aud objectionable, and thai the Crov^ui, in tiie grant to the West Jndia Company it>ell, defmcd what it iiiermt l)y tiie concussion ni' droits dr. jiislicc in addition to the droits dr fuj'. \\\\\ . even supposing. llml the concession of tlie droits de justice conferred extraordin- ary rights on the seignior, it is beyond (piestion that tln'S'^ rights oi justice were only assumetl in foirr or liv(; eases, m Canada, for the (.'slablislmient of eo?(r.s' ordinaires de sei,L!;nr:iii\ justices suljallerncs^ and wen* never assiuned for the cs- cvcif^c oUa haute just irj'., as expressed by the King in the i 91/ section of iIh? ^raiit 1<» iIk' West, Itidiii Coiiipimy ; find if th(^y wtTC nrvcr t'\<'n-isc(l, il is now tut) liiic ii» ch'iiu ;iiiy ri^lil iindtT tlifiii. TIk; i:;riints en justice innst In: sclli(!] ; and unless it can be shewn, that tiieve is some text (if the (.'nstom or some well esialilished vide of iIk; common l:i\v, as ibnnded on tliat cnstom, wiiieh i^ives such a rii^lil lo tlie seii^nior Ihiul Jiisticicr^ it woidd he wroii!^- to explain the £i;ranls "t" the Crown in tliat respect, ]»y iIk; opinions of uiitliors who wrote, not on tin; Custom oi Paris, baton other custeuis, the more particularly as their opinions av(^ I'ar iVoni \»mr(' a ivcom. pcnso I'orllK! biirtlicii so inn)osn(l. 'Clio seis^ncw liaul jv.s- licier in Kraiun^ could not onibrcc IIk; jji-ofits, if Ik; Ii.kI never assiniied the oblii^atinns. A vnere liUe from the (a-owii ooidd never convey thosi; ])rivi](>i^(>s, il" llu; seiifiiior Imd jicver assiiined the eon'ehili\(.> ohli.'^aiions ; as no rii^rlii df banalitv conld be chximed if tlui mill had never been Imilt. Tli(? grant of Justice \\;\s distinct from llie orant ni fnj] altho' embraccHJ in the saiiK; i,n-anl, and li(>ld by llie s;iiiir person. 'I'o i^ive properly in itie Ji<'f\ an invesliliiie nnd po!fn(! even for 100 years eonld, scarcely i^ivc the rii,dil with- out the ijrant ; and how conld ;x mere <,n'ant never acccptrd or acted on do so. (1) Until sneh ])os:ses8ion was tiikon under the grant, the Soverei;^n conld, by a reunion to him- self, always reinvest himself with that pt)rtion of the sove- reign rights which he had so conceded to tlie hanf jnsUcicr., and the seignior conld not claim the profits de Justice^ if the mere concession had never been followed by an actiuil ;is- sumption and cxcrcice of the duties. That such reunion did take place in Canada, the references here made will abundant- ly prove. Bnt it has been contended that a meregrant by the Crown was snilicient to vest in the haut- just icier all these profitable rightf?, and as they had become a complete ])i;lri- mony in France, they liad also become such in Canada by the force of the grant, and that no suppression of these rights could take them away. I cannot concur in that opinion ; no authority, or sound or safe reasoning can justify thiscon- 'm! ^1) See Henrion de Pansey, Dissert. Feod., v. 2, p. 577. 95/ elusion. The whole history of Canada shews that a mere grant of the. /i^/ itself, not I'ollowed by poss(!ssion and actual occupation and setllemenl, was nnavailini,', as tlie nnine- rous reunions ol' seii^niories Ibr such want of possession I'liliy denionslratc. How could, Ihcn, the additional rights oi justice^ which were in all instances rights which were superadded to the grant en ficf, and which were merely ac- cessories to the grant itself, and in no instance an indepen- dant gran*; a))art frora the fief] be claimed, enjoyed and Iransm'Jted, if not assumed ? It is, I think, impossible to support such an argument. As far as I can discover, in no one instance were the duties of haul juslicier ever as- sumed in this colony. IJut pushing the argument to its last result, even su])posing that these rights chiimcd by tlu> sei- gniors as haul justiciei's^ had bc^en well recognized and that they had been in jiossession, the elloct of the change of domination in 1759, and the subse<|uent j)roc]amation in 1761, necessarily suppressed these rights. This suppression necessarily reinvested t'.ie Crown of England with the Crown rights so alienated by the concession of justice, just as lliey woidd huve been reunited to the; Crown of France. I5iit it is also contended that even this su])pression could not take away what had in fact become a property in the seignior, as certain and as legal as the possession of his fiej\ and that the mere fact of the right of administering justice having lje(>n done away with by the o[)eration and introduction of a new j)ublie or immicipal law, did not snppn^ss or take away the other attributes of justice, inelud- iiii,' tin; j)rolils arising from ihein. I cannot concur in this reasoning, for, if the proJUs de justice be considered as given for the discharge of tlie onerous duties imposed on l\vi haul jusHcicr, and if the droits dc justice, in themselves lie a nua-e d(':niemt)ri>menl des droits rt'fi;(diens^ a delega- tion ot iho sovereign authority granted jor specified objects and on ctatain considerations, iIk'U the su])pression or rather :«■■: 4»v I i! ! 90/ a reunion to ihe Crown ol" ilieso sovo re it(n attributes ternu- nated the authority of the Jumt just icier, and it" the charges which attached to the performance of the chities so rc-riccini- red by, or reinvested in the Crown were neccBHarily remo- ved, so all profits which were the equivalent and conside- ration for their performance, were taken away. (1) The principal, that is, the haute justice having disappeared, all the accessories of that ;ms/ tee jiassed away wun it. As well might it be said that, when a Jief was reunited to the Crown domain, that th;^ seignior could retain a [mrtion of the inciv profits do Jlc/. The Crown, in granting the droits tie justice, rctriincd the same control o\er the i [ant jus! icier, by reason of tli" concession, that it did over the vassal, by reason of the feu- dal dependaucy under the feudal law. The droits dejusiko exist apart from the Crown, only so long as the Crown wills it ; for the concession of droits de justice never can mean, in the very nature of things, a perpetual alienation of llieni, for they arc inseparable from the puissance ■publiquc of the Sovereign. Even in France where these rigiits had become a patrimony, they could be reunited to the Crown and con- ferred on another, and no indemnity for the loss could bo claimed, if their reunion was' eflected before an} invest ituie of the seignior with their possession. (1) See arret by llocquart, in H'il, of reuniting seigniories by force, of clause in concessions. :U 2 Cluyot, Fiefs. Prcscrip.^ p. 23. 1 same. cli. 3, p. 14-2 and foil, — and no. 2.'). ♦< ch. 1-. r% .Itervb p. 392. 2 Daniel, couvs a'caii, p. rt, and foil. 97 / But iiguiu, even supijosing lliut l)y virui« ul' Ihu haute justice, which hud been so conl'urred on the seignior, the profits dc justice had still remained in the f^eignior after the siippresision o( justices in the c()k)ny, and that such profit dc /)w//fe had included a riglit of proi)er;y in iIk; river>, it is clear that such right of property aflci' th<' suppression of tlu'so rights ol' justice, would have continued in the sci,!^7ieur feodat lo ha ii mere right of property divested of all the (;lKinict(u-isti(;s of justice, and .! would have merged in tln! general right of property which r-sultcMl from the j)o.ssession of the torritOTy en fief. It never could be pretended that the seignior held the rivers by two scptirate and distinct titles. One must have nicrgod in the other. The ])roperty could not be held by two separate nnd indcpendant titles in their very nature adverse to each other. Sec arret by Ilocquart in 1741, of reuniting seigniors hy force of clause in concession deed. The censitaires claim property in the wiiler courses Irom the seignior. This clearly admits that the water cour- ses are or were before the concession to tlu> censitaires, the property of the seignior. The point then wliicli can alone present itself is : does the concession cover the water cour- J*es? The only question, in reality, raised is to determine the legal eflect of the concession, for, if the concession does not pass the waters, then the censitaire cannot otherwise contest the title of the seignior or pretend to any right what- ever. 2 Guyot. Fiefs. Prescrip. p. 23. " Or il ne s'agit pas " ici de ce que pout fairo le iiaut-juslicier en vertu de sa '^ haide-justicc. . .. dont les droits n'ont rien de commun " avec ceux du lief; il pent beaucouj) plus eji vertu d(i sa " haute-justice cjuVii vertu de son [ivi'."- See Reuniov, cli. 3, and also 1 Guyot, oh. 3, p. 142. H3 and Ibl : " En general il n'v a (jue le proprietairo du 13 ' :'i] ■ M 98/ " fu'f on ciii'j " opere la reunion. (1) So if the seif^ncur haut-juslicicr loses his right of droii dc riviere by a reunion of the droit de justice \o the Sovereitrn, then it prodi'A- s no sort of ellect on him as seigneur feodal, thojicj] as ay/V/neJlher gedns nor loses by the reunion. It leaves \hc scis;neurfcodal with his property in the Jiej] and with bis properly in the water as a depi.-ndance followina: theyfc/' out of liis j)oss(.'ssion in the same way and by tlio same law tliat he acquired it. The water in the seigniory as a dependance of the./Zf/, is, and I think, il must and can only be a dependance, not of the whole fief as a fiej, but as a mere dependance of the banks which Ijorder the water. By what law, or recognized custom which can afl'ect tlie question in Canada, can it be shewn to be a droit de fief apart from the territory? The various citations from feudists establish rather a fact, tiiat the seigniors were, in France, in possession, some as havtjusticiers, others as seigneurs feo- daux, and as riverains according to their respective titles, (1) ^€(3 Daniel p. 9 and fob 101 J than setile or afiinii tliu existence of an incontrovertible prin- ciple of law, and unless such a text can be found in the Ciistoin of i-*aris, ihe ordinary rules of h'gal construction iiiii;^t prevail. See Cliaiupionui"-re, j.. -1, )). 153 and I'ul : ] iiiU; liifR fore, oi' Djjiniou liir t, no ri^^lit whiitever can be iiaiuu'd by IIjc M-i^uiiu* in l.ie triri'aui^ wad rivers by rcaioa of any e^.anks, so they equally passed, and by the same ride of lav>', by the coreession « ///re de ccns of the land horderini:!: the slreiMU. This is claimed bv the sei^r- niovs, on the ground thai, though they should and ought to pas?; in iiio .'rant iVoni ihi' Crown, the property in those s:roarns and water courses is a droit dc jicf, and that as sueh droit de jiof ox droit domanial they could not pass bj/ tlio concession a. ccns, unless they had been speciedly mentioned in the coneession. 0;i this ])oint no sullicieut reason has l;ceii assigned, nor has any law been cited to create and ^^aneiion sueh a dislinelion. They mu^st have ])assed by ilie grant from the Crown in one of two ways ; either the water was considered simply as an accessory of the banks, or the grant passed the water, because in such cases the ^^d of the river with the water, passed as accessory to the HI '•i - '■% ''-f ': ■ .)' ''.',-'-8 1*;:. • i mM ■1', i 4 102/ right of property in the banks. If the water by either of these ways passed to the seignior, by the grant from the Crown, and I can coneeive of no other way, by which they could fiave passed , and no other can be presumed from the gnmi itself ; why should, then, the water or the bed and llie water, not equally pass by the concession d cens, without any special mention of either ? There is no good reason wliy ii should not, for there can be no directe retained by the sejif- nior by a concession of mere water apart from the bed of the river, (1) for it has no existence in law except as an clement attached by right of servitude d''usage (2) to the bed and the banks by which alone it can be useful and applied to any purpose whatever. If the directe can be maintained or reserved, it must be on a concession of the bed of llie stream alone. But can a directe be reserved on a bed of a river to the exclusion of the owner of the bank ? If it can, how can the bed be used ? How can a concession be granted of the bed of a river, when both banks are already granted ? If the bed under such circumstances cannot be used, and I don't see how it can be used, the law will not so twist and violate every rule of common sense, to enforce an abstraction of tjii^ kind which can have no profitable result. If tlie bed of rivers did not pass by a concession of the banks, tlien it must be supj)osed to be retained for some useful end. It is (1) Proudhon, Doinaiue 3 vol. p. 296, no. 9-i4<, in speaking of rivers " Parce que Ton ne pent pas concevoir I'idee d'un lleuve sans lit " et separe du sol sur lequel il coule." The seignior haut justmcr no doubt claimed the right of conceding the right of building mills, and 'n that sense the droit de cours d''eau was conceded, but this right was claimed and exercised by virtue oi the puissance publique over rivers, which had been granted by the concession o( droits de Justice. >See Prost de Royer, 4 vol. (2) 1 refer to the droit de servitude claimed by the seignior and spoken of by Henrion, on ground that river vnxa reserved by seignior. 103/ no argument to say that the seignior wishes to use the wa- ters exclusively ; for he can only use the running stream, even if it be his absolute property, and return the water af. ter he has used it. This is not incompatible with the use of the stream by the riparian as owner of the bank. Neither the one nor the other can change or divert the course of the stream, and the seignior, if he remains the owner of the bed of the stream, can only use the water and return it to the stream to be enjoyed by all who have an equal right to it. So also the riparian, if the bed passes to him by the grant en ccnsive, can only use the water and return it. There is and can be no difference whatever in either case, the seignior can not say he can erect works in the running stream to the prejudice of the riparian, unless he has a right on the riparian's property and can use his banks ; and in an unqualified grant en censive, the seignior cannot deprive the riparian of the natural use of the water, even by erect- ing in the stream itself apart from the riparian's bank, works which do not touch them, for the bod would pass by such a grant en censive. (1) In all cases of the concession en censive without any reservation or limit in the grant, the river and the bed would pass to the riparian in the same way as they had passed to the seignior by the grant from the Crown, as mere dependencies of the bank and not otherwise. A run- ning stream apart from the territory on which it flows, can have no existence as propei'ty., strictly speaking, otherwise it would be susceptible of exclusive use. A running stream is susceptible of usage exclusif while passing over the pro- (1) 2 Daniel, p. 551. — ^" Les proprietaires riverains, soit que le cours *' ire.Mi traverse, soit qu'il borde leurs heritages, ont droit d'o'mp6cher " que (les voisins circulent en bateaux dans la partie qui leur appartient. " lis peuvent ea defendre I'accds, comme I'acces de toute autre pro- " pri6te ; et revendiquer pareille circulation serait vouloir 6lablir sur " I'h^ritage d'autrui, une veritable servitude de passage." "A' m.'- I'll ■ . ?5 II M\ I- I-' M 104 / perty, but not of absolute properly. (1) The law of ai- iuvions, droits d'accroissernent, undoubtedly gives tlie bed of the river, when tlu; water has gradually retired iVoia its banks, 1o the rip;irians ; on what piinei|)]e wouKlthe law so award it, if liio bed was not eonsidercd a part of, and as u dependeney of tlio banks of the river. On this ])oint I will refer to Mr. Daviel who has, I think, disc;ussed this subject with great clearness and ability, and see 5 Ilervey p. 20!. I take it forgranted, th'.'refure, from the avUliorities citfj, (2) 1. That all rivers not vested in Crown for public uses, fall into domaine price. 2. That a grant from the Crown lo the seignior, without any mention of the rivers, will puss these rivers in the grant. 3. That a concession by tlii: seignior to a censitaire of tin; land bordering the riviT, will pass the river !Uid the bed over whieii it iiows. -1. That by granting the river, the riparian has the right to use it for ail (1) Frost do Cover, l vol. p. 110, ll'i, M3, loS, IC, 17, IS, 08, 109. [a] CLiam|iioniil6rc, p. '22,2.T, 1 Daviel, no<. 139, 140. 2 " DOS. .00 1 -2. Cuyot G vol. p. G70, no. G. Prouillion, Domaine i'ublic, no. 1277. (2) Authorities to show that rivers pass as part of feiulal grant, 2 Daviel p. 10, nos. ^I'Si, 533. Cites Loyseau, iles seign.euries cl>. 13, nos. 120, 133, See note, on p. 12, of authorities on both side, p. 16,21, no. 537, See note, p. 28, p. -12, 48, 55. Proudhon, Dosn. Public, nos. 1187 and 1452. Guy it 6 vol. p. 6o3 on rivers. 105/ purposes not restrained by law. 5. That in using the water he must so use it, as not to interfere with the use which the upper and inferior proprietors have by law of the water. But it is also contended on behalf of the seigniors that the droit de cours d^eau which belongs to them by the grant from the Crown is a droit domanial^ which gives them the exclusive right to build mills and use the water to the exclu- sion of ail others, and that nothing but a grant of this right en censive can divest them of it or give a right to build a mill or use the water. I have already briefly adverted to this pret(m- sion and I can find no law to justify it. On reference to Giiyot G vol, p. 664, no. 2. " Nous parlons des petites rivieres qui " arrosent les seigneuries parliculiereset qui ne portent point " bateaux sice n'est au moyen d'eciuses. Chopin, ib. no. 25, " les appelle rivieres banales, rivieres de cens, i. e.quisontau " territoire du seigneur." Bacquet, ibid, no. 25, (lit que " dans ces petites rivieres, le Koi ni les seigneurs hant-justi- " ciers n'y ont pas plus de droit que yur un autre heritage " appartenantauxparticiiliers. Cette maxiuie est contraire a " la pratique universelle de la France ;Es paisde droit ecrit, " oommunemenl elles appartiennent aux haut-justicier^. " Dans les pais de Coutumes files S07it generaleniinl an " droit defief^ le seigneur haut-justicier pent y a coir la po- " lice, mais la propriete qui emporte droit de moulin el de " peche exclusif, appartient au feodaV Guypape, Quest. 514, holds opinion of Bacquet. Sal- vaing, p. 37, and Loyseau, ch. 12, nos. 2, 3, give right to seigneur feodal. D'Olive, liv. 2, ch. 3, makes droit de peche, and droit de moulin, droits de fief. Despeisses, droits seign. tit. 5, art. 4, gives both droit de peche et moulin to haul justicier. Bnt what is this droit de fief or domanial which seeks to appropriate the right of building mills and of fishing ? 14 4 ■i V 'if-', 106 / l» this droit de JieJ\ an incorporeal right apart iroiii tlic droit de fief \vh\ch applies to the whole seigniory and inde- pendanl of the territory, itself, or is it a portion and inte- gral part of the droit de fief which arises from the posses- sion of the territory ? If it is the former, then some h\\\ would surely be found to justify such pretension. M. Da- vid on 2 page of 2 a'oI. says : " Si I'eau eourante, par sa " perpetuelle mobilite, est essentiellement une chose com- " mune, parcequ'elle se derobc a, toute possession pcrnia- " ncnte, le cours d'eau, en lui-memc, tant qu'aucnne por- ' ' tion n'est pas recueillie ct mise a part, comme compose du " lit sur lequel il coule, et du volume d^eau qui le constituc, " est quelque chose de fixe et toujours identique, quoiqu'in- " cessamment renouvelle. Les forces motrices qu'il fournit " a I'industrie, les ressources qn'il ofFre pour I'irrigation el " pour la peche, accessoires precieux du lit et des rives, " dont la disposition favorise les richesses naturelles, voilu " une dependance essentieile des heritages qu'il traverse." This authority wliiehis ^hcrationale of the whole subject is borne out by Championniere and others. There can, in the very nature of things, be no exclusive right of property in any one, in a running stream apart from the soil over which it runs. It is not susceptible of property, but only of use, and, if so, it is impossible to separate it from the bed in the concession. For, if the seignior could only posses* in the manner pointed out by Daviel, and this so long only as he was possessor of the bank, how could he retain a properly in the mere dependency when the principal had passed out of his hands ? No directe can be retained on that which is a mere dependency, or the accessory of property ; It must be retained on the property itself. The concession of water alone involves an absolute alienation of it. The droit de fief must therefore exist in the seignior, because he is the jiroprietor of the banks an^, •^iicbetiof 107 / ihe river, and of the river a^^ a dependeiK'y of llio banks. Ewn Hervc, i vol. p. 251, and Hacquet him- self, admit the correctness of this principle. He says with Guyot, "quo les rivieres quiappartiennont aux seigneurs sont " en general un droit de fief et non un droit do justice ; " ainsi c'est le seigneur feodal qui a la propriete des eaux "et tousles accessoires qui dependent de cettc propriete, " comme le droit de movdin et de p6che." The principle then that the droit de moulin et de p^cke arc mere depen- dencies of the water, is clearly admilled, and the only real clifficulty is to determine whether the conrs d''cau itself is not a mere dependency of the banks. If the concession of the banks be made, then the pro- perty ill the stream passes with the concession, and the ripa- rian becomes the owner, subject to the public uses, for all na1ur;d purposes. The authorities cited have established that in such a case, no one can interfere with the riparian in the use of the waters, and as the riparian is unrestricted in the use, he can apply the water to all purposes what- ever. Thus Bacquet, already cited says : " Mais la pro- " priete qui emporle droit de moulin el de pcche cxclusif " appartient au feodal." Under these authorities, what is the " droit de propriete qui emporte droit de moulin et de " peche exclusif, qui ajjparticnt au feodal" ? It is a pro- perty in the river itself, altho' it is in this citation called a droit defief^ it cannot mean a droit defief apart from the tomtory, for in the same passage the author says it is " la " propriete qui emporle droit de moulin." Now, if it be the property in the river, which can have no existence apart from the soil over which it Hows, the droit de fief must be the droit de fi(f which applies to land and it may bo alienated in the same way. By the Custom of Normandy art. 216, 210, it is a droit de fief contended for in the view taken by the seigniors. This Custom says " il faut 6trc " seigneur feodal des deux rives," and therefore Basnage oo %i1^ ■■ W'- 108/ ;. < treating on this article says that it is a droit de fief which be- longs exclusively to the seigneur feodal. But Henrion de Pan- sey on p. (JOG, of vol. 1, of" Dissertations Feodales" says : " " La Coutuine de Normandie qui forme sur ce point ie " droit cotninun," and goes on to cite the Custom. Can the Custom of Normandy form the common law of Canada ? Surely not. The Custom of P;iris is the law of Canada, aiul by that Custom as interpreted by its commentators, it is tliu " propriele de la riviere qui emporte droit dc mouiiu et de " peche exclusif." By this Custom, there is no distinction made in reference to the land and the water, and there can- not be two kinds of droit de fief in one and the same seig- niory. The right of building a mill is not and cannot be a feudal right, it is a droit utile simply, which results from the possession of a property in the river , and this property in the river has no separate existence a- part from the banks. Ferriere, Grand Com. on Paris, p. , already cited, says no. 15 : " Quant un seigneur n'a " pas le droit de banalite de moulin, il ne pent pas einpe- cher les particuliers d'avoir chez eux des moulins a bra;-, de s'cn servir pour eux et pour d'autres. Mais ils ne peuvent pas batir sur eau ou a vent sans son consente- ment. Le seigneur haut-justicier a droit d'accorder la permission de faire des moulins sur des petites rivieres non navigables au prejudice meme des particuliers." This right claimed by the haut-justicier is claimed solely on the ground of his being in j)OLsession of the puissance publique, in virtue of the concession of the droit de Justice. Now, if under the Custom of Paris, it was the seigneur haut-justicier who claimed the right of permitting mills lobe built on non navigable rivers, it is clear that the droit de mou- lin can proceed only from the droit de banalite and the droit de riviere as claimed by the haut-justicier. But the droit de riviere has been shewn, at least as I view the case, to be in the eigneur feodal as proprietor of the territory and not in the ticuliers. 109 f haul -j II sf icier. Boutario, Droits seigneuriaux^ch. 6, des Rivii- rcv, p. r)58, says : "Mais dans lo (\io\t general cid'driH les cou? " ines muettes, il est certain que le seigneur liaut-justicier " a sciil droit dc; permettre de construire nn moulin fsur sa " rivitTc " and page 559. " Qu'est-ce qu'une riviere banale ? " I'our toutos les autrcs banalites il laut titrc, mais pour la " banalite de riviere, il sutiit d'etre seigneur haut-justicier " (lu territoire oh elle passe : " and lie cites the arret of the Parlcinent de Paris referred lo by Ferrierc. Now, if it re- quired a title for every kind of banalite, except that arising from the property in a river, what title can the seigneur feoJal claim in the river? Is it not a mere right of property ? The right of the haut-justicier was not a right of property kit ol' jurisdiction, and unless it can be shewn that the ju- ri!«///», otherwise tiran by the rii(ht of bannlih:, and this right of property in the river is derived, not from the right of property in tlie stream as water, but from tlio property in tlie bed of ilie river, wiucli carries with it the exclnsive use of the water of whieh it is a mere dependency. The autliorities which have been cited on the part of the seigniors to show thai the droit de cours d^eau belongs to the seignior, are all bas- ed on the supposition that the seignior remains proprieidr of the river, that is of the bed of the river. For, the riijht of the censitaire is said to be restricted to the border of the water, and that the water being the limit of his properly, all the rest, that is the bed and the water, not being conce- ded, remains with the seignior. It is because the conces- sion is limited, not because the river is a droit defief, that it is supposed not to pass with the concession, unless ex- pressly mentioned, for if the bed of the river passed with the concession, it is diflicult to conceive that the water which fiows over the bed would not have passed with it. The right is made to rest entirely on the right of property in the river and the only question to be really determined h: does the river pass with tin* c»;,if;ession ? So also when tlie authors speak of those rivers he'nv^ rivieres banales ox ri- vieres de cens, they mean that so long as the seignior re- mains proprietor of the river, including the bed, the right may be conceded. Bat in none of the authors can there be found any thing which can justify the idea that the droit ik cours d^eau, is a right in water alone, or in the use of water alone, or in the use of water, apart from the bed over which it flows, or that it is droit de fief, unconnected with the mere right of property in the river, as has been before discussed. . .This right may have been conceded by the haul- justicier by reason of the jurisdiction granted to him, which placed him precisely in the same situation as the Sover- eign was in respect of navigable rivers. But such right in ■S! 111/ \\k seigneur fc'odal, ♦.'xcept in the Custom of Normandy, has not been shewn to exist. Even this Cuntoni of Nor- mandy makes no distinction of this kind. It allirms the rule that the right results from the right of property in the banks of tiie river. But the text of that Custom, requires also that the owner should be at the said time seignior. In no other Custom have I found any thing to support the pro- position that it is a droit de fief in the sense contended for by the seigniors ; and from the citations of Ilenrion, it is this Custom alone which has given rise to the opinion of the feudists, that this droit, de cours d^eau is a droit de fief apart from the droit de fief which applies to the whole seig- niory. These authorities arc sullicient to show that the right of building mills apart from the right of bnnalite is a right which results solely from the possession of the water pow- ers. It is a droit utile arising from the possession and ownership of the bank of the stream, and of the stream with its l;ed as the accessory of the bank. If it be not this, the droit de moidin must be an incorporeal right, a mere droit de fief incorporcl which would extend to the erection of all mills which might be erected and moved by other power than water. The droit de moulin rests entirely on the droit de cours d^eau. The droit de cows d^eau rests entirely on the possession and ownership of the cours d^eau itself. This right of property is a mere dependance of the banks of the river; if it passes from the seignior, it passes with all its attendant privileges, and these are to use the wat(;r for every purpose to which it can be applied, subject only to ilie servitude of (he public. If it bo a droit defief apart from the territory and the droit de fief which belongs to it as a whole, then it could not have passed to the seignior by the grant of the Crown ">vjthout express mention, in ihc.^o r-aso.'. at any rats where A:\ i if :i-:'; • ■. i 112/ no montion is mndc in \ho grant of lli<^ rivers. For, if it b- main, by declaring that he intends to hold it en roture ; but there is no incompatibility there ; but in reference to liind granted to other persons, he cannot hold a right of propfi'y. Now, the reserve here spoken of, gives him a clear right ol property in his censitaire^s land. This right of property give:^ him a right of contract, and by this right of contract, lie can prevent the censitaire from fulfilling his obligation of settle- ment and thereby cause him to Ibrfeit his land. His leten- tion of all wood and building materials and sand, &c., an all reserves of this description, which might prevent the rf 113/ ceimtaire from clearing his hind, and therefore, ns I view it, utterly null and void. It is no ar^iirui-nt to say that a man in iiiakini? a Jan is j)ureiy a droit ntiladc fief, and is a profit do fiej\ in the same manner tli;ii tlie land is, and that l)y the conttession of the bank of 'iie stream with the river for the border or limit of the eonees- sion, without any reserve whatever in the concession deed, the bed of the river and water pass to the concessionnaire, as de|)endencies of the bank. Hut by the 39th and list (|uestions submitted on behalf of the Crown, tla; Courtis •"ailed upon to determine on thi; legality of certain reserves and limitations, eontained in deeds of concession, granted by the seigniors to their censitaires. The reserves nos. 5, C, * in the 39th question and nos. 1, 2, 3 in the list (piestion are reserves reciuiring special attention. Assuming as a It^^nd proposition, that the concession without any reserve, oi a water lot, passed the property and the use of the water \\illi It, any reserve which did not limit this right of pro- P'Tty, by restricting the limits of the said concession itself so aMo exclude' in terms the bed and the river itself from. the eoncessiun, eould not divest the censitaire of any of hit^ 15 ■ ■ ■ ,;''f'' < .( '3 '■' ■ 'A ! I.- •. ( 114/ riji;ht9 of properly in the river. That if the right to build n inW is dependant on the possession of the water or sirearii, ris I inve (MKleavourcd to establish in the preceding re- marks, then ii" the river passed witli the concession, iliis right of building mills must have passed with it. Tiie re- serve, to be valid and eflectual, must exclude the oenstitairo from all right of property in the water itself, by excludin;,' it in c'^orcss terms from the concession, in other words, the banks of the river must be excluded and form no part of the concession. Take by way of illustration the reserve no. o of the 39ih question. The words are, " a reservation of all " rivers, rivulets and streams for all kind of mills, works " and manufactures." A^o. Gofsame question: " a reser- " ration of diverting and directing the cotirses of streams '' and of intersecting lands by channels for that purpose." The very fact that p reserve of this kind is made, im])lic.s that without such reserve, the water would have passed with the concession, and if so, it could have passed only W"ith the bed which is not reserved as a dependency of the bank. Now, as regards the first of these reserves it is of no great value, for, after he, the seignior, has used the water for his purposes, he must return it to its channel and then the cen- sitaiie can use the water also. The reservation cannoi ex- clude the censitaire from its use. The seignior by law has the right of using the water, if he retains the property in any part of the banks, without any such reservation, but by law he must return it after he has used it. It did not require this reservation to give him the right, and unless the words can exclude the tenant from the use of the water as it passes by his land, which they clearly cannot do, then the reservation is useless, and it can neither confer nor take away any rights. If the tenant should in defiance of this reservation use the water for a mill, what damage does it inflict on the seignior .-' He has the use of the water, what more can he demand .' Interest is the mea 4 "'f l\5J sure of all legal right? ; if he has no interest, how can the in- fringement of this reservation l>y the tenant aflect him? it can produce no result \vhatever. At most it is only a viola- tion of a personal (j})ligation, and to inforee tiiis obligation the seignior must show damnge ; now v>'hat damage could lie snstnin, if he got tli3 use of tlie waters rct-erved to iiim bv liis contract. As regards the sixth rc^^crvation, llie same argimiei|t may be used, lie may possibly have the right of diverting ihc siroain, when it passes thro' his own domain, but then onlv. and even this, without anv injury to those who have an equal right 1o the us'- of tiie water; but he must again rc- i;irn t!tc w;itor. The ri'serv;riion does not v,wj if the diver- si;)n is to be made thro' the land of the tenant. It may ];c fiivi'ri'-'d otherwise! than thro' the land. But if it were to bo taken ihro' his land, it would be a bcrvilade vv hieh he hcd iiimon'd on his land by agreement and no more ; its viola- li'i;i might be a violation of agreement and might give rise to dauiage ; even if such damage could be shewn, it could elvo no right of indemnity for either of these two causes, lor thev do not fall under tlie cla>s of feudal rights ex- liiigaislifd for which any indcraniiy can be claimed. The indemnity for llie co/.f;*.s d-eau or the use of watch's is given when the lands of which it is a mere dependency is re- deemed, atid if the right of us.ng the water is a droit utile and arising from the prt)j) Ttji in the banks, it cannot be considered as one of those riidits for which indeumity can be clnimed, otherwise all droits utiles alienated by the seignior would fall under the operation of the act of 1854. As regards the reservation under ih.c 'list question, the 1 and o articles may be disposed of unde-r the argument al- reridy given ns respects the others. These reserves do not divest the tennnt of the right of property in the water cour- •"5'^'?, if if pnssed by tlip concession. They are bU ^^tipnla- 1- 4U iSf * ■ ' .1 . '■ }^i ■ e i ■' . i; >: \'. ^fs h .-■*■ ■ . . ^1 ■ ^>' - no interest whatever in that whi(di relates to the land ol liis censitaire. On this point therefore he can claim no indorniii- ty. As regards no. 9 of question 39th, such a reserve is not inconsistent with tlie feudal contract and when the censitai- re has consented by his contract to that right, he must abide by it. As regards no. 10 of question 39fh, this is a right wliicii cannot be reserved by the contract, in the view which I have taken. As regards no. 9, no right to indemnity can arise, as it is not a profilable right ; as regards no. 10 the concession having passed the property, all the droits utiles must pass with it. But this maybe considered rather a personal right of fishing, and is coupled with the right of 119 / liuniing which is purely personal to tiie seignicr, and in this view as no possible standard of value can be given on which an indemnity could be based, I think none can 1)« claimed. 'if I PAET FIFTH. ON BAN.NAHTV. •M (( The law of France in reference to banalite, as applica- ble to the feudal tenure on its introduction into this coiintn', is to be found in the 71st and 72d articles of the Coutiime dc Paris. The right of banality is a privilege whicli the seig- nior has of compelling his censitaires or tenants to pay tri- bute to his mill. Before the reformation of the Custom of Paris, it was a feudal right, droit de fief and attached to ilic tenure en fief. It was a feudal obligation of a degrailiiii; character, and on the reformation of the Custom, it wa^ abolished as such droit defief. The 71st art : is in the fol- lowing terms : " Nul seigneur ne pent contraindro ses sii- jets d'aller au four ou nioulin qa'il pretend banal, on faire " corvees, s'il n'en a titre valable ou avcu et denombroment " ancien, et n'est repute titre valable s'il n'est auparavant " vingt cinq ans." liy this article it appears that the law of France, as n^- gulated by the Custom of Paris, required, for the exercise of this right on the part of the seignior, a valid title. It was exj)ressly abrogated as adroit defief e\ seigneuiHal, and from thence forth no ccnsitaire could be compelled to pay tribute to the lord's mill, unless he had voluntarily assumed and entered into the obligation. It is therefore a purely conventional right, and such was the law of Canada on the introduction of the feudal tenure of the Custom of Paris into Canada. It is unnecessary to refer to the 8 or 10 Customs in France, which made it a feudal right, and incidental to ihc fie/\ without any convention between the seignior and ccnsitai- 1-21/ If. On rcforotice lo Jlcniion tie Pun^iey, Diti^^crkitions Fco- diiles^ tlie whole law ot" France will be found there tstaled at JL'ni'tli. It is the CoMh«;u.(/e Pam alone which can determine the character and oblii»'ations resultini^ from this right . The first legislation which took place in Canada, on this subject was in 1675 ; see Edits ct Ord. in 8, v. 2, p. 1G2. It is an ordinance of the Conscil Superieur of Quebec, de- claring banaux the mills moved either by wind or water, built or to be built by the seigniors. This ordinance was ren- dered by the Conseil Superieur of Quebec on the occasion of a dispute between the millers of two neighbouring seig- niories, DcMaurc and Dombourg, arising out of alleged tres- passes on the right of bannality, the miller of Demaure pre- tending that the mill of Dombourg, being a toind mill wasi not by law a bannal mill, and to wliich it is not necessary here further to allude ; for the ordinance in relation to all mills, is to be found in the latter part and is in these terms : " Lc conseil a deboute ct deboute le dit Morin de sa de- mande ct pretentions ; et faisant drcl' sur les dites con- clusions, et conformement a. icelles, a ordonne et ordonne que les moulins, soit a eau, soit a vent, que les seigneurs auront batis on fcront bdtir a Vavenir sur leurs seigneu- " ries seront banaux, et ce faisant, que leurs tenanciers, " qui se seront obliges par les litres de concession qu'ils " auront pris de leurs terres, seront tenus d'y porter moudre " leurs grains etc." It is clear from the whole tenor of the ordinance that the sole object was to render wind mill han- nal as well as water mills and to compel those ccnsitaires who had assumed the obligation of bannality by the conces- sions which they had taken of their lands, to pay tribute to the loind mill, in the same manner as they were bound to do to V ater mills ; lo render the obligation of bannality to water mill, as stipulated in the contract, obligatory for the future as well as for the past, when the seigniorial mill was a wind mill instead of a water mill. 16 / I ,1; 1 Jl' i:. VT; it'- ■.■:■:' h:- -I ■>-"'■ ■ .1 •■■1 ' 'iff f ^; ■■'■ vi^ ■:"' *^ ■ . ■ ". , 111 _>-i 122/ The cfTcct of llic ordinance was 1o modify the law of the Custom of Paris, as exj)ressed in tlie 72d art : and to de- clare that, whenever tliere was a contractual bannality established by the concession without any mention being made of the kind of mills, that it should apply to windmills as well as to water mills. This ordinance then left the ([uestion of bannality where it was before, that is, a purely conventional right ; and the only change operated was in rendering the right stipulated for water mills obligatory in the casjc of wind mills. -i The next piece of legislation is to be found in the arret of 1G86. It is in these terms : " Le Roi etant en son " conseil, ayant ete informe que la plupart des seigneurs, " (jui ])ossedent des fiefs dans son pays de la Nouvellc- " France, negligent de batir des moulins banaux, neces- " saires })our lii subsistancc des habitans du dit pays, et " voulanl ])ourvoir a un defaut si ])r6judiable a I'entrelien " de la colonic, Sa Majeste, etant en son conseil, a ordon- " ne et ordonn*^ qu(! tousles seigneur;^- qui possedent des " fiefs dans I'ctendue du dit pays de la Nouvelle-France, " seront tenus d'y faire construire des moulins banaux " dans le temps d'une annee apres la publication du pre- " sent arret, et le dit cemps passe, faute par eux d'y avoir " satisfait, permet Sa Majeste a tous particuliers de (]uel- " (pie qualite et condition qu'ils soient, de batir les dits " moulins, leur en attribuant a cette fm, le droit de bana- " lite, faisant defense a toutes personnes de lesy tronbler." The ellect of this arret was to impose on all seigniors the obligation of building bannal mills whether they had stipu- lated or not with their censitaires for this right, and jr- default of their building these mills, the arret conferred lln' right of fbaimality on those who should build the mills lor them. It is clear therefore thai the Crown by <'.onipelling tlie ( 123 / yignior^ to build bannal mills, must necessarily have interul- ( anet of 1686 was therefore to render a convention unneces- sary and to give to censitaires the right to compel the seignior to build his mill or to forfeit his right. See abstract of art. of custom published in London in 1772. This right is there- fore, by this arret, a feudal right and it changed the law^ of Canada, as it previously existed in this, that it rendered a convention unnecessary, and imposed upon the seignior the ',»•., ■ J ;i. • ,-■ ■' '1 * ';■ A ■', 1 i Ai i: ■■it- --■;. "'f i^rK i .1 .:^,i;-\/'.ii' -''1.1 Illfe'JbV ''■'"" 124/ (tbr>';a1ion oC building a bannal mill, witiiin a yf'ar I'rnni ihc dale of ihe jniblication ol' this arret^on ))aiu ol" liic i'oilcitu. re onaclcd by llic arrSl. It is true this arret was not I'nrc- i,dstcred and publi^^llcd until twenty years or more alkr it was so rendered, (see llaudot's correspondence of 1707, where the reason is assigned) but this does not all'ect the qnestion. But what is the right of bannal ity as it was so imposed ? Was it dill'erent from the droit dc banalitc as ii existed under the 71st art. of Paris? Ferriere in Coutumier general, v. 1, p. 103G, at no. 5, says : " Mais dans la Con- " tumc de Paris, ce droit n^cst j)oint feodal, ni scigncurial, " c''est un droit extraordinaire ct contre le droit commuii " S^c, " and therefore no such right can bej exercised without a good title and by possession. But once acquired by title and possession under the 71st art. docs it cease to bo what the author represents it to be ? No, it is after it has been acquired, what it was before it was acquired and the only change which was introduced into this colony, in that respct, is that the arret of 1G8G gave the right without any contract between the parties, but the right was the same and the arret of IGSG gave it no more extension or cll'ect than what the convention did, if the arret had not been pti.<- sed. Of course, I speak of it, without reference to the right which the ccnsitaire had of compelling the seignior to 'uuild the mill, for that privilege or right in no way atfects the character of the obligation. Ferriere, on p. 1031 of the same volume, says: " Le " seigneur qui n'a pas droit de banalite no peut pas om])e- " cherses sujets dc batirsur leurs heritages etde faircclias- " ser dans ]r detroit de sa seignenrie, mais ayant moulin " banal, il peut faire I'un et I'autre." On page 1035, no. 1 : " A I'egard de la banalite, c'est '* une espece de servitude, laquelle par consequent ne '" s\nc()uier1 pas sans litre." 125/ If conlinnos lliereforo to bo a mere scrvilnde nnd n por- sonnal obligalion, but ii sorvilude created by Imw, insteail of by convention. The right may bo real in so far as it was inlicnuit in and attaclied inseparably to the fief, but in its obligation, it is still a servitude and personnal in its nature, obligatory on all censiiaires within the enclave of the sei- gniory, with certain limitations, but not real, in respect of all the productions of the seigniory, as in the case of the prcssoir banal. The privileges which belong to this right under the Custom of Paris and under the or/'e'/ of 108G, are Isl. that the seignior can compel tribute to his mill after he has built a bannal mill, and 2d. that no one can build a bannal mill within his seigniory. On the fust point nothing new can be said, as no dispute whatever arises on this point. IJut as regards the exclusive right of building mills for pur- poses other than that of bannality, or mills of any other des- cription, it is necessary to examine this right. Ferrlere, loc. cit. on page 1038, no. 13, says : " II pent anssi empecher ses sujets de batir des moulins a bled, sur saterre et que d'autres n'en fassent batir, et intenter contrc cux le cas de saislne et de nouvellete." .1 ■ 1 I' <.; •! No, 15. " Quand tui seigneur n'a pas le droit de bana- " lite de raoulin, il ne pcut pas tmpecher les particuliers " d'avoir chez eux des moulins a bras, de s'en servir pour " eux et pour d'autres, mais ils ne peuvent pas batir des " moulins sur eau ou a, vent, sans son consentement ; le " seigneur haul justicier a droit d'accorder la permission de " faire des moulins sur des petitcs rivieres non navigables " au prejudice memo des particuliers qui y ont moulins." In no 15, in speaking o'.' the right of building mills: " ce " meme auteur (Brodcau) dit, selon i'avis de Bacquet no. " 10, que les particuliers ne peuvent batir moulins A vent, ll> r ^ "/ ■ ■'^.•■' i'V;- % .Kl ■■. V." *., » •■5'. ■n !. -': '■ ' It*' M t ■V:'-' ', ■ if: '' -• \: ' ' ■ m ■■■■ \.i iM(\ 126/ " sfins lf» f!onsenlPincnt. du xcigncMir, qtioicpi'll n'snt point " droit dc banalitr', co qui est nranmoiiis coDtrc rintrn''' " public ct la libertr dcH 8ujet^4, main ils pciivoiit ciivoycr " moudn^ leur bled dans los moulins voi.HJns." P. 1()|2, *' no. 23. " La raison est , n(.. 17.- H(jurjon, p. 2.53, no. 3, p. 235, nos. 11, 13. I, l)u[)le.ssis()n Paris, p. GG, G3. These authorities are generally siinilm in all commentators on the Custom of Paris. * « From these authorities we may infer that no person can build a bannal mill within the cnc/ave of a seignior ^\llo!.ils the right of bannality. liut does it follow that he cnniioi build a mill for any other purpose ? The prohibition is to build a bannal mill, that is a mill for the jiurposes and ob- jects for which a bannal mill is built, that is for the grind- ing of the wheat subject to the droit de banali/c, but as far as this right is concerned and no farther, for whateviT right the seignior may claim aliunde, as proprietor of the wiitor courses, the right is commonly considered as dependant on the d. oil de banalitd. But is this prohibition to be restricteJ to bannal mills, properly speaking, or is it to be extended to all mills whatever, when there is no violation of the droit de hanalile? For, if it is to be so construed, it is clear that no mills whatever of any kind, even for purposes hors the rigiit of bannality, could be built and owned l:)y others than by seigniors, for, as by the laws of France and by the laws of Canada, in that part where the seigniorial tenure prevails, and where the rule nulle terre sans seigneur ijrevails, no other than seigniors could possibly possess mills, for in all seigniories the same restriction would prevail, and the an- sitaires would be for ever deprived of the right of building 127 f a mill. Tlio monopoly would nccu'ssarily oxtond to all i,nrist mills wliaUsver, as no otluu" lliiin scip^iors could build mills. 11 ihr droit dc hanaiilc hv a nicri! servitude, is it pos- sible lo extend llio law so far? TIkj precise words of the law are to exclude the erection of bannal mills. In limit- ing the restriction to bannal mills, is it not fair to conclude that mills not bannal may be erected ? If the seignior is preserved in his right of bannality, on what pretence can he, under this right, prevent any (me from building a mill for purposes other than that of bannality ? For, if wheat or other grain is grown in th(! seigniory, when; can it be ground ? it is no argument to say that it nmy b(^ ground at the seig- nior's mill, for the ccnsitaire, for this grain, is not bound to go there, and if he be not bound to go there, where can he get it ground, unless Ik; go to a neighbouring seignior's mill, which must be a bannal mill or one built by the seig- nior for purposes other than that of bannality. This neces- sarily extends the right of the seignior to grind all grain grown in the seigniory and thereby the privil(>ge is ex- tended beyond what the law intended. For if the censilaire subject to bannality can only be compelled to grind a cer- tain portion of his grain at the bannal mill, viz, that neces- sary for the support of the family, (and on this point I take it there will be no difTerencc of opinion) then the right of bannality necessarily involves the monopoly of building ail mills whatever ; he must either go to his own seignior or a neighbouring seignior, and in either case, it is, in efl'eet, extending the privilege of the seignior far beyond what the law itself has made it, for it is only a serv'itude and a ser- vitude limited to the grain necessary for the consumption of the family; but by refusing to the censitaire the right of him- self grinding his grain not included in this right, or for- i^ing iiim to go to a neighbouring seigniorial bannal mill, it is beyond controversy, that by this interpretation of a rule imposed by law for the advantage of the censitaire and just- I *■:' ■ 1 ( 1 1 (' ' >4 1 * ij : » ;■' ' '; ,.n >■■ ) .,'■ ';* •■ s { ■ Jt'l 1 ( , ■■ '.I'i '"■ ' 1 if "%^^) ■Viuillagnialical obligation with reciprocal rights and duties. The seignior underlakcs to build the mill, the censitaire to Miiv tribute to the mill when it is built. This tribute is limited by law ; for the overplus of grain grown, the cen- sitaire is free : he can grind it where he pleases. The seig- nior can have no interest whatever in this, for it is not liable 10 the obligation of the tribute. Th<^ censitaire can dispose of this grain as he chooses. He can sell or convert it into flour, but if he must go to a bannal mill to do so, as he cannot erect a •nill himself, then it is impossible to deny that the obliga- tion which the censitaire has assumed is one never contem- |)latcd by the law ; for the arret of 1G86 expressly declares ihai the droit de hanalite shall cover only the grain necessa- ry for the subsistence of the family. This arret therefore ilefincs the obligation of the censitaire and its extent. Now it cannot be denied that almost all the commentators on the Custom of Paris declare that the droit de hanalite gave ilic seignior llie exclusive right of building bannal mills or iiunilins a hied ; but this ruu>t be explained with the view of t^iving an interpretation consistent with the nature of the obligation assimied. On reference 1o Ilenrion de Pansey, p. Dissertations Feodales, it will be there shewn that this right has been claimed as an integral part of the droit dc hanalite, by almost all feudists, because it was necessary 10 do so, to protect the seignior in the exercise of liis right. If this be the reason which has given rise to the opinion of feudists, and I take it that this will not be controverted, then the question censes to be of any diiiieulty or its eluci- dation of any practical importance. For if it be conceded iliatthis exclusive right is insisted on, as a means only of ineventing any infringement of the seignior's right, then it '"« clear that it can form no portion of the right of bannality, for \vliich any indemnity can bo claimed. For the protec- 'iou which the law ffivcs for the exercise ol any right ov 17 1 : I • ''^■' \' ■ , ( ' if ;JI .4' ■ ■ : J,: - x-i'.'': ;1V ;» . i f^X'l^ ■i'l, •: ii', 1 130/ >» 1;:'^ i i •'M privilege can never, in valuing this right or privilege be taken to be a part of the right or privilege itself. If the droit de banalile bo abolished, then as a matter of course, all that the law granted merely as a means of preserving or of securing this right falls with it. But the indemnity can only be based on the value of the right itself. But the authorities cited show that the exclusive right of building mills other than bannal mills depend on other pretensions, which have no reference to the droit de banalile^ and have been discussed in another part when the water cour- ses came under consideration. I think therefore that the droit de banalile can confer no such privilege. It is limited to tlie building of bannal mills and cannot be extended to mills not bannal. But it is said that the law gives the right to the seignior to demolish any mill built within the seig- niory. The same reasoning will apply. I am theretorc of opinion that the droit de banalile as introduced by the arret of 1686, is the droit de banalile as it existed under the 71 art. of Paris, and is a mere servitude. That this right gave the seignior the exclusive privilege ot building bannal mills ; that, even if it be admitted that this right necessarily gave the seignior the exclusive privilege of building grist mills and of demolishing tiiose built by ;i censitaire, in case of any infringement of his right, or even without any actual infringement, such rights existed only as a means of securing to the seignior the exercise of his right, and can give no right whatever to any indemnity. That this privilege of the seignior was granted on the condition of his building the mill, and his right to exact the tribute or enforce the servitude was acquired only after he had built his mill, and that until he had built a mill, it was un unprofitable right and could give rise to no indemnit) uri(hT the law of 1854. That the privilege extended to the grindijig of the grain necessary for the consumption of the ^^'***Nr., *« 131 / censitairCi whether he grew it himself or pnrcliased it, or otliiTwiso obtained it, provided it was brought within tiie limits of the seigniory — that the indemnity must be based on the value of the droit de banalile as fixed by law and no more; and that, if no bannal mill was built at the time of the passing of tin; law of IS.")!, no indemnity is due. What then docs this right consist of under the law of Cana- da, that is, what is the right of the seignior for which he is entitled to in iemnity and on what principle ought it to ])c taken and .'otablished ? As has been already observed, the obligation which the censitaire has assumed and which the law of 1686 has imposed on him, is to grind the grain neces- sary for the subsistence of his family, at the seignior's mill. On this he pays a tribute which the law fixes at one four- teenth. The total value of the obligation is the fourteenth part of that grain which is liable to the tribute. What is the '"^mior's obligation which the law has imposed on hi)n, as ■•■ I '.* norij to obtain this tribute ? It is to build a mill and^ ,'■ he grain. It is a contract involving reciprocal rights and obligations. In tietcrmining the value of this right, these rights and obligations cannot be separated. They must be examined together to arrive at a just appre- ciation of their value. The right of bannality, which the seignior invokes, cannot be determined without ascertaining precisely what the nature and extent of tlie obligation is which is imposed on the ccn.sf/afres. In valuing this right it is necessary to know what has been paid for it, in other words, what are the correlative and reciprocal obligations which the seignior must assume to obtain this right. It is clear that no right of bannality can exist until the seignior has built his mill; neither can the grain of the censilaire be ground, after it is built, without the expenditure, by the seig- nior, required to effect that object. These two things, therefore, are what, under the contract which the law has made for them, the seignior must pay to obtain this right. -; ■:f'! ." ■V. .i^-ifl \ ■'.:■ mi ! ,y,i I .If.;"! ,i -i'U , ( if" %W'''ry,. 'I rii it*' 132/ * < It appears, therefore, nlf^o mnnifest tliat the>'e two \h'mcr. must be deducted from the total value of the tribute, in orck-r to ascertain the precise value of tht; jjrivilege for whieli a?' indemnity must be given to the seignior. The seignior ciiii- not retain his mill, and at the same lime take the ca[)ital of the tribute on the abolition of the right. For that wonkl he no relief whatever to the ccnsilairc. lie would emancipate himself from the obligation of bannality ]>y paying the ca- pital of the yearly tribute and he would still be obliged lo grind his grain. It would in fact be a doubling of his iri- bute. For it is no argument to say tliat he could build ,■> mill, if he choose, for that would be to relieve him from one burthen by imposing on him one which he could not assnmt', The capital of the tribute is the total gross value of the droit de hdndlitf;., but the bannal mill, by the law of 1G8G, is not the property of the seignior absolutely ; it is the property of the seigniory and attached to it ; — because it is the e(|uiva- lent which the law requires from the seignior before he can exercise his right or claim tribute. The equivalent ]lUl^l therefore be surrendered, or bededncled from the tot;il valii'' of the tribute, before the p^-ofitabk; right of Ijannaiity can be determined, and this balance, so o!)taincd, is the ilroit de banalitey in so for as any pc^euniary value can be ascer- tained, which must be paid by the censitaire to obtain lii- emancipation, and if the seignior retains this equivalent on die abolition of the right, its valne must be credited to tlie censitaire, before any jnst basis of indemnity can be ascer- tained or settled, otherwise the seignior will be paid the full value of the tribute and retain at the same time, ^\ hat ilie law has compelled him to expend to obtain this tribute. But it is contended that the seignior by his right of bannality possesses the exclusive privilege of building grist mills, and that, if this right be abolished, he is entitled to an indemni- ty to be paid, if the right be admitted to be just. Surely, it cannot be by the censitaire, for his obligation being a servi- 133 / [ud<-, in law, to grind a portion only of liis wheat at the mill ;ind no more, it can only be llie basir- of his pecuniary liabi- lity. The excess in value of the siMgnior's mill can only ;uh{\ from the fad, that being the only mill owner, he ne- cessarily grinds all oilier grain, not liable to the tribute of hinntUbJ. ]iiu for this excess in value he can, surely, have no claim on the censilairc. It is an accident arising from the exercise of the right of bannality, not appertaining to the right itself, for the prohibition imposed on the censitaire to build a mill, is established only as a meansof protecting the jeignior in his right and for no other purpose. If, however, il be contended that this exclusive right of building mills be ill! iiiliercnt ])art of the right itself, then, indeed, this right iniiiht properly b(! taken into consideration. But the situa- tion of llie cfinsilaire would be infinitely worse than it was lieforc, for, then, he would be compelled 1o pay the capital of his tribute, pay for the droit de movlin cxclusif^ as a part of the droit dc banalitcy and the seignior would still be left the owner of the mill, and the censitaire be still obliged to iiund his grain at the seigniorial mill. For it is useless to deny tliat the censitaire could rarely build a mill or success- iLilly oompete with the seignior in ])ossession of all the ad- vantages arising from a mill in full operation. I am there- lore of opinion that the only just way of (Establishing the right rt'llie soiimior for whicli indemnity is due, is to deduct from i!h; total value that of the seigniorial mill and <'f the expenses incident to its worlcing, for any excess in valuing the mill can only arise Irom the extension of the privilege for pur- poses of manufacture, as before obscrvi'd ; and the balance, if any be found in favor of the seignior, will be the just mea- sure of indemnity ; and if there be no such excess or balance, 'lien the droit de hanalitc should be abolisiied without in- Jemnitv. 'fU ;■*• i'si '■.'■. ' ■?. ' ;.■? . *i ''i' 4 ;'■ 7 '' ,-' •■' ■:';;,* . y'f i •.?iv- -^-^^ ■■ UYixi'' ' 1 Hi ^m^ ■vM- % : !'■ '%.,':' ,-#'Ht-jii't.!'t**''ti #f^>'H|'n:ii';i!! .ii ;' ERRATA. P. 20, line 11th of the note, in lieu of achetent, tc^d ; achite. 26, line 15, in lieu of or read : on, " line 17, in lieu of censure read : censive. 30, line 22, in lieu of funcHonnaires read : fimtion- naries. " line 5, in lieu of Arr^t Marly, read : Arret de Marly. 31, line 32, in lieu of conceded, read : concede. 64, line 24, in lieu of thier, read : their. 56, line 3, in lieu of setled, read : settled. 100, note, in lieu of Daniel read : Daviel. 103, note 1st line, in lieu oi Daniel, read oi Daviel. 108, line 35, in lieu of eigneur read : seigneur. 113, line 15, in lieu of «n conclusing, read : conclusion. 118, line 11, in lieu of concession, read : convention. " line 12, in lieu oi seigniors, read : seignior. 122, line 17, in lieu of prejudiable, read : prejudiciable. 128, line 34, in lieu of laws, read : law. im^ •. :y would even impos • upon me the uLT'-ssity of merely stalin:ir^that my oj)inions were the same a > "hose wliich have alreaciy !)eeu set forth. JJut as it is im- possible for n)e to ai;ree to some of tlu^ Propositions a\ liieli Mil' Honorable President and several of the )uembers of the Court have maintained as bein:' foimded in law, I eann.it. kvv\) silent, I shall avoid all repetitions, as much as lavs 'luuy power, and e>en then, the task will Ix.' an wi-ibior.s Olio. The learned and elotjuenl Counsel, who, v. hile nphold- ini: the n.'speclivc interests of the Seii^iiiors and t)f the (Vw- , and while sup];orting or '•ontestini,' the Propositions ul'ilic Crown, which, as a gimeral rule, ri'lleel the pretea- ^iunsoftlie C('/fS7'taircs, have thrown an additional lustre 'inon the noble profession which they havv'* such numberless ■•iMsons to hoifi in hi.'^h respect, and have i^iven to tlie ("onrt a very wide scope. The llonoral)le Judi^es who have spoken before me, have strengthened the phalanx, which ! am call(!d upon to combat, and 1 liav(> every reason to be- "irve that tlu! lIonoral)'ie and Learned Juctges who are to Uilluw me, will liartlly come to my assistance. Never- 'iif-'less, reiving upon my owi. convictions, I sii;i!!, williou' lurihcr delay, e\j)ress my opii'ioas. i '^'l^) ■V-; '■!>'■' . ■ '\i M. . •'< 2«r With u view of ostf,blif. and had not the control of the non navigable and noa iloat- able rivers, what was, so far as il relates to this, the edbct of the abolition of hi I ^' M -*r ^^ Jt .' , V I ,." \ •:■ t ! T." i.f, ;;fw ^■.m6 ,.-^»r,r;-j. ■ 0mm''i . (T Count IV n|) lit ilic present time 1 1 vv IS n rniitter o TT': nei-'M'iM lew.' illlC sity, iiinl we niii^t here render lionisi^M* to llii' e \\i>(l(.in of the French (Joveinment ; that \vis(h)iii >| itself throiif^'h every h'^'ishilive eniietnient of thai t tendini,' to attain the «,'reat end which it had in view, the e()h>nizati(>n <>(" New France. Had the French (id- verniiient hcen projjcrly supported in its views, it is iii()>t reasonabh" to suppose that this Court woultl not now be called upon to (h'cich; a number of (|iiestions, w hich h;ivc arisen mere Iv I )ccause the svsleui has l)een, as it were (listorti'd to such an extent, that it is diliicull somctiines ti* r'H'o^'nise it. 11. Mefore the Arrets of Marly, was Jheru a fixed rate iii wiiich i,nants were to be uiade in this Country? I am afriiid that, with tlie best intention in th(,' W(;rid, tlii- (piestion has been rendered more complicated, instead u\ \)v\uif math: more clear and simple. It will be said that I allude to those who have made this important subject the obji-ct of tiieir serious consideration ; becausi', apart iVoii/ those men who are com|)etcnt to fathom this subjecl, tlien are many others \\ ho are satisfied to I'clio l)ai'lv tlio :/eiieriil or tiie party cry, no matt«!r if it were raisi-d in favor of tlic Seii^nior, or, if in a more vociferous manner, it wi're raised in favor of the Ctv/.v/V^/Z/T. The Jut and others, ended, hy means of the sanction that chiss of j>ersons obtained from some tribunals, ended, I repeat, by assuming the appiirciu fjrm of a system, when in reality it was only founded on prescription, as if, by such means, an abuse could be con- verted into an established right. Such a thing can no more take place than prescrijjtion can take place in the face of a title. The Crown of France therefore usetl the only proper means. On all occasions, the Seigniors opposed the piiilan- ihropical views of the mother Country ; and, at the j)resent day, we are called on, upon the American soil, to dt^eide if such a system as that which the Seigniors invoke in their favor, does really exist ; and which would be nothing more, after all, than the old European system almost in its en- tire purity: a system which started into existence during the times of barbarism, and was strengthened by the succes- sive encroachments made upon the rights of nations, whose weakness and ignorance were made such good use; of for that purpose. We are conversant witli the history of this institution Tlie learned Judges who have more particularly made it their study, have exj)lained it to us : it is therefore useless ibr me to do it. I shall at once come to the (luestion in ))oint. I must first state to you, that, notwithstanding all my researches, I have been unable to find the Edict, esta- blishing a rate, which it is |)retended does exist for this Country. If ever sueli a one did exist, it is not to be found. Nevertheless, from the time of the establishment of the Country up to the time that New France or Canada wa» oeded to England, there were a series of Edicts, Decla- rations, Ordinances and Decisions, which are nuich more conclusive than one solitary Eilict could be, and which might only have been the expression of a passing thought ; i,->r.' whereas llic others which have been publisliej at dillbrent periods, are the expression, not only of one thought, but re- present and express a decided, fixed and consistent reso- lution to act according to a certain principle, the only one at tliat time which could be realised. For this reason, in- >t('iul of allowing the Seignior the right, as in France, of oppressing the poor peoi)le, the French Governnicnt endea- voured to enforce, in favor of that numerous class of society, the Cmsitaircs^ the humane, christian and manly idea it hail conceived, which was merely to oblige the Seignior to con- cci^^:- at moderate and uniform rates, which, instead of being an obstacle to the fulfilment of the humane projects of the Crown, would have facilitated the accomplishment of them. That is the secret which reveals to us the true state of iintiers at that period : the peaceable diffusion of the lights ol th(! Gospel and of civilisation were the motive |)()wers in this Country. The love of conquest and military glory took their place in Europe and in France. The causes which pro- duced them were very diifercnt from each other, and the etfects must therefore have been unlike. The fundamental principle of the conc(>ssions here was lo be on the condition only of the payment of a rent, without the Seignior having any right to demand a sum of money as the price of the concession. It is superfluous to state that, at all times, this rule has been violated by a number of Sei- i,miors. Another established rule was to concede, and in point of fact, the Crown did concede at moderate rates, and lor the customaiy cens el rentes and charges {redevances). Although the Seigniors were bound to conform to this last rule, they have also violated it at all times. It is hardly ne- cessary to add that here, as well as elsewhere, a moderate r-nt was almost an essential part of the seigniorial tenure. According to the concessions granted in 1 G52 by the Jesuits, who held \\\G\xJicfs from the Company of New France, up to 1063, when the Company ceded its rights to the Crown, it appears that the rate of cc7is ct rentes was almost uniform throughout the Country. i '\^i J . 1." f 'i ,,M,_ Wi M ,'] tJ'> '■■1 ■ l'' ■i 1 i ^ : . r I i. 1 ■ 'ft k 'r I "I . 'J ;'. f. :f^lsv;' < i In those seigniories wliieli were held iinmodiatoly from Ihe King, the rates at first were of one sol en ar'^cnt tourmis, lialf penny for each arpcnl in front, and one sol of rrws-, (([iial to about six shillings and four pence half penny for tlircc arpcnts in depth, forming ni nety arpvnls in supcrriciej*. This was IJie general and established rate, particularly in the district of Quebec, although it was less in some cases. After I he Company of New France had ceded its rights 1(; the Crown, a number of concessions were made, and in most of them, with the exception of those in the island of Mont- real, the rates were almost uniform, being about oiu; penny for each arpent in superlicies, and one capon ol the value of ten pence, or halfabuslud of wheat in lieu thereof; which amount to about one penny for each arpent granted, if the wheal be valued at twenty pence. As the object at present in view is not to fmd a mean proporlional rate, but is to ascertain what was the general rate in \\\\> Country before the Arrets of Marly, it is not necessary to consitler what I have just now stated as an established rule ; for, in the district of Montreal, the price was generally one sol and one pint of wheat, for eacii arpent in superfi- cies, and half a bushel of wheat, for every twenty arpctits in superficies. IJut in the seigniories which belonged to reli- gious communities, capons were stipulated in lieu of a rent in money. It appears, however, that the most general rate in the Country, and the one which I consider as being the rule, was one sol for each arpcnl in su})erfieies, and one j)enny ot ecus anil one ca])on for each arpent in front. This gene- ral and I may say almost uniform rate did exist in the Country ; it was known and acted upon. And a most re- markable act is that the rate had never exceeded two som for each arpent in superficies, although, in a number ol cases, it was only one soii^ when the Arret of Marly »f the 6th July, 1711, relating to Seigniors, arrived in the Country, and was enregistered in the ofliee of the Superior Ctuirt of II ' and in most 9 ir QiK'bcf", on ilio ')\]i DiH'oinbcr, 1712. Even in lliis /l/vv7, indcpcndcnlly of other sources ot" wliicli I will shortly make niciition, I lind the proof oi" scvenil iniportanl facts. 1 ^ . That the Seigniors were at that time, as they had previously rll. refractory, and ,. decled to attend to the coloniz.uio 'j» n lie ("ountry. o c riiat they refused, under ditrerent ■IclU'f to conce(h" lands to tliosi; uihahitants who askc< liifiii to concede. 3 - . That their zeal in seconding tlu; licncvolcnt views of the Crown, consisted merely of a scnti- iMciil of egotism, whic-li induced liuMii to act in this manner, N) as to he. abli.' to sell thosi; lands to the inhabitants who were desirous of obtaining concessions, and at the same lini'- U) charge tJuMU the same dues as were |)aid by the old s w -hid 1 were mos t ad vantaijeons fir tr.nle. I iilso find in it the \:i\v of llu^ Coimtry at thai 'iiu:; to remedv such great abuse the law which I men- lion is as follows: the obligation, on the |)art of the Sei- :,'nii>rs who hud uo lands cleared, nor.>eltlers upon tli(>m,w'as to s unilercuiti vation, and to placi? sciiha-s upon iheni ):it lliejan; williiu one year, from tlu^ day of the publication of the said Arnil ; \[\ didault whereof, at the vnd of that time and with- i-unitcd ' > His M;ij;'sty's domain, at tin; instane(i of the Attorney 'ii'ucral of the Superior Council of (Quebec, and by vir 'lie of the Ordinances to be made in relation thereto by ili"' Majesty's J/ieutenant (Jeneral and by the Intendant of 'ln' Conntry. I also remark in it an order of His Majesty to all the Seigniors in Xew France to concede the hinds with- in tl K'lr scigniorie ICIll, s, to the inhabitants who might re([uire act from the on condition of the payment of a rent, and not to ex- m any sum o( money in payment ot thc.se con- 'T' ijr J , =; . ', ■ ' ' ■ \ ' ' t; i • I :|';1 s . ■1 f t 1 .'■■;< 'f' ' ) 'i. , ■ r ! '?' 'l'^'^^ ,),|, v'i ■EH j3 '■\ »&#' 10 o- cessions. In dcfuuU wliorcof, the settlers were allowed to demand the lands by a summons, and, in case of a refusal, li) apply to iho Governor and Lieiilenanl General and totln' Intendant of the Country, whom His Majesty commands tn Errant the lands in those seii^niories, which the settlers inav have demanded ; and the dues to be paid by the new settler.x were to be handed to the Receiver of His Majesty's domain in the town of Quebec ; and tlio Seiijniors were dcbarrcil from having any claim whatever upon them. I also find in it a very significative word applied to "the same dues a? *•' were paid by the old established inhabitants," 1 mean, tlie word paid^ which sullieiently indicates that money \va< what was intended. If you examine this Arret with attention and reflect upon it, how is it possible not to perceive that the King made an (mactment, and it nmst have been a 1; .. , that those conces- sions should be given for " the same dues as were paid 1a "the old established inhal)itants ?" Were there then, at that time, any dues whatever ; was there any fixed rate what- ever ; was there any rule ? unless you imagine tliat the King was telling a falsehood, or did not know what he was sav- ing : this is a supposition which cannot be admitted lor an instan\ This Arret therefore proves the all important fact, that before it was promulgated, there was some fixed raio. some rule. In the face of so clear a law, it is therefore an error to state that, before the ^/Yt7 of 1711, ther^' was nd fixed rate what^n-er in this Country. It was quite natural that there should be one. The same great mind wliicli ha proved that there was a rate, whatever it may be, I assure you I shall not omit establishing what that rate was. On the 15tli of Jun;-, 1708, a judgment was rendered by the Intendant Jlautlot, whitth, among other things, com- manded the Seignior of lioeaneour to grant a deed of con- cession to one Perraidt untler tlie same clauses ;uid condi- tions as Ikj had granted them to his other Cr/isitaircs, other- wise that the said judgment should be in the place and ars ])efore t'le Arret of 1711, tlie In- ti-ndant acts according to what then was ;ui established rate, a rule ; otherwise Ik; woidd have left the Ccusilaire to ilie mercy and discretion, or rather to the indiscretion of the Seigniors. On the 15th of Fe!)ruary, 171G, the Intendant IJegon |)assed 'A Decree obliging the inhabitants of Dernaure to e.\hibit to tlie Sicur Auberl, Seignior of tlie i)lace, the titles and d(,'eds by virlae of which they held their lands &e., &c., in ()rd<>r ilmt the Sieur Aubert might grant them titles " under tlie " s!imo clauses and conditions jis the old titles, without " lu)\v(;ver allov/ing any new charges to be made." (Ed. aiulOrd. V. 2, p. J 49.) fA ■':.' ■{ AH' 1 ;:| • l4, i„ ■■ ' « If i. .!*■ 12 />• . < 111 llie very face of siicli words as iIk^sc, and of Midi piv,. liibitions, will any |)i'rsoii iiiainlain tliat. the Sciii-niors wci-. not obliiifcd to coiict'di' at the old rates, and that it was oi;- tional witii them to increase those rates ? On the 2Sth of June, 17:21, the Jntendant IJeiron p ismiI another Decree condemning lli(! Sieur Amiot, Seii^nior ( i Vineelotte, to estal)lish tiie boundaries of the lands w hidi |,, had promised to his settlers l)y writ in^;^ uj)on the e()iulili(j!i^ in( ntioned in that Decree. Some inliabitants of F^ebras, of Saint Xieiiohis, anioii!/-' other i^rievances, coM!|)lainc(l that, notliwithstandin'^r i,;. promises in writinij, to irrant them lands upon the same con- ditions as were meni' )ned in the titles already iifranted i)v liim, he was desirous of makini? tlii'm pay other diic^ iLai, those allowed by the Arrrt u[ 1711: adding', at tlic >iii time, that those conditions could only have relerciu- ■ t some dues \\ hicli the Seii^niors alone had a rii^lit to slipiiiaii I'or ; they i'urlher sl;iled ;il the time, that they wei-e oljjlp'd. either to submit to conditions which were so severe and -. exorbitant that it was impossible for them to subsi>t, or the. had to abandon their farms. The Decree is based u|)on the Arrcl of 1711, lor it i^ therein stated : "• Seeini^ also the said Arret of the Klw/^ " Council of State, bearin;,Mlate GthJuly, 1711, and il hcii:.' " considered &c., &c.," terminates as follows : " We prc- " hil)it him from im[)osin'^ any other tax u[)(>n the said laiid- " tlian the rent."' Does this prove that if was optional with the Seiirnirr^ to establish sncdi rales as they thou<,dit proper, and, is it iir as clear as day that the Sei<,Miiors could not even take as ;. precedent the old j^^rants into which had been iiitrodmi c tlie rii^ht of exacting' dues contrary to the Arrel el' Kll 'J'hey sliould be at the same " r<(/cs us flip ii^ranls ic llic eli' settlers, not in the sei;2;niorv, but tlirougluail the Coii!!;:;- [)ursuant to the cstablisluxl rule, that is in confortaiiy v.i;; of Mich pivr 'iufuiors wci- a1 it was 01). , Scii^iilor ( i luls w hicli |,r lir <•()lulili(J!!^ Ins, aiiKinLf^' slaiidin'^r li'.s lu' saiiic coi:- y i,M-unlL'd l)v ■r (lues ihai, i!t tlic saiii" n't'l'l-ClU-' Ir It to slipiiiai' U'crc ohii-vil. ■severe and -^ l)>i>t, or llic ni, (or it i> )f the Kiii^''^ and it lii'ifL' 1 : " We piv- he said l;ii!f-i- he Seii:nii> a/idis it ih vn tal■ ,'.A' \ V *.' .; i "?.-'-" i ■£.' ■ ■^;-M M'- !• ii i ,'. \ I f 1 Ug Afosf (Iccidcilly t.li;i) is anotluT proof wliicli iiuiicntrs an cstablislicd rate, a rule, sorriclliiri!,', in one word, which did nol depend ii|)on tlie will oI'iIk* Sciiijnior. Il'vou (•(niple this wiili tlie rents {droils de ridcvanccs) imposed npon the old settlers, aeeordini,' to the terms of the Arn'f of 1711, and also the j)i-ohil)ition to add new clirjri^es, as slated in llic Or- «Iinanee of IJegon, of the 15tli February, 1710, you will easily become convinced that there was some certain rale in ihis Country. On the 2.'j of February, 17-13, the Intendant Iloccniart ren- dered a judtj'tnent eondenminj^ the iSeit,Miior of IJeiliiier td i(ranl a deed of concession to the Fabricpie of ]5eriliier, of ;i lot of land given by D.une de V'illemur, \s.v. Anionq; other thini^^s that jnd<>-ment decided tli;;! " tin,' "■ new purchaser should bo bound to pay to the projjriclor " of the said scMij^niory the rr'ua el rentes^ at llu; ciirUmiary " rate of one so/ of rrnlr for each nrprni in superficies, and " three capons f )r the wdiole lot of land, and Iv.'o sols ef " rT//o." (Ed. and Ord. t. 2, p. .581 and seq.) The slii^iit variance which is to be remarked he.-c dof* not f)revent us from recognizim^, in this jud:4;ment, w lial 15 perfectily apparent every where else, that tlu ;•(> was >\\v\\ ;> thinf,' as an ordimtrjj nifc, no mattf-r wiiat it may have Ijccm. It is tru(! that tJu; L,n-ea1(>st number of these judi^meiits and ordinances are subsequent to the Arret of Marly, but lor all that, they do not the less prove the fact l!:;;t sonic ordinary rate, some rule, althoug!i it w.'is a luodciale rate did exist. Were it necessary to add any thin;^, I should appeal (ov as- sistance to tlie Arret of tlu; Superior Council of (^iieuec, of the ;>9tli of .^Tay, 1713, which |)roliil)its the Sienr Dii- ehcnay I'rom concediniif any lot of ^-roiind wilhin tli'' Bonrg d(> Fargy at Ijcauport, at a higher rate than one w/ of tYV?,y and ow. chicken of seigniorial rent for each arp<')il. ^ .^. 15 g !t is a mntler of vnry sli;^'!ll iiuporfanrp, tliat it liupjxns to ho oniv a lot of ground ; tlic rate ol' orio so/ and a I'liwl is not tlic less acknowlf(I:(cd as a rnl(!. Ti'insr rules lidil /Hvoin/' csliiM/shrrl hi/ custom, as it is stated by M. Cn^nct. iDcs Ccnsivcs, p. II, cd. of 177').) Tliey tliorerovc did exist (1) in till" CoiMitry, they wen' jaiown and iinivcMsally HcktKnvlc'dg.'d, notwitlistjindiii;,' sonit* slight vairanccs cf vorv little iniportnne(\ 'I'liey were in accordance villi tln^ King's intentions and favored, in tlie most adniiral^le manner, til • realization of the i;i'eat idea which presided over the co-- loiii/.ition of the Country, [f you wi !•<> to looli o\('r all the concessions, with very few exceptions, you would lind tli(^ rill ■ to he one .vo/, and in proof of lli;s, there are liie four i'ullowin!,' concessions : 5 March, 171 I, I.st pari of Mi(/c [sirs, t^ranted ft)r the puyaient alone of 2i) rols and one cap(• ',; I ^ ^ ) Si / 1'. ) '•■|: '.:t! ' \r ■r i (1) llo s;iy3 t1i,i,t llin ratas c»f;iMi.li'3 I fir cdii-o liMfT in IhU Province aro iipd .vn/ i.f '■0!n lor civrh iirjuii/ in (Vimf liy t'li-ly in cl:!|itli, IV"U -Ii nin-cii 'V, one Tit iMp.'ii Tu:' f^'h (irpeii! in t'lvmt, or twority solf. !,)itrni>l-i, ii/r i;- 'on^ to lli • eh li, c iiii'l plci.^iii.- of ;'i' S'l^'iiior, or li ill'a li'is'i.'! oi' wiM', nl" .■t-ii'i J'^ii T r,: it s^'i'^nriiriiilr, to;;otlicr •(illi (lio ot!i 'p s.!i;^iiiori,U iliu'.-i, ;\ii I tli'.-i i-i in i-on.Jo:|ii(.MU-o of t!io ili'a !■< of concession w:ii!i till- Iiitonilants ii I 1 irr.inlo.i in |ti) Ix'iiiir'.J n cue, of Inn l-i within h\^ rrn.'.ire. M Cii;,'nL't ■^K:i on to sinlo l!i:i(, no K lict of llio K'i:r^', r\n lio foun 1 in »lic :in iilvo.^, 'ix'H'^ lli'j rito of cj/is- f.' rnitn-i ■•i''i'jiit:nr!(i'i-.'i wli'di llu! So;i;niniw slioull iiuiio-e. I D.-ij rul.'s liiivo Ijo ! )ai ) L'-'taoii.-lij 1 liy cn.rloin. Tli'i lun;^ concc'lcij iho liuni Hilhin li'j c'lsn'/v, nt tlio^rj r;it(.ii. Iii.stru", rcMiirk-i M. r4;;ii<'i, tliiit llu; Inn l-i nic not loiKc ij(l at eijuil iMtos ; tint in tin ilistrict of MouIivjI. lliov aro con.-clcl nt I'-i.''!".' r.>,'"itliin in th'< 'liyh'i •(. of Oii"l)o- ; uMlimt .1 m'lt, husiyii, Ijc -ii;! i ianJs ;>t M'lirtroil ara inoro vilualilo tlim :it liio'icv '^i; nii'^ht, I tliinjc, account, for llii< viriiMon in ano'hcp manner. Vcrv f.eqnontly 'hf. c!UH() of it is to !)(' Mitriloilc.l to what ii so wpH oiint'il unt hy .M. Iiai;.l .t tha c'ior. in liiMi,.U>3ror V.\t 'iioir, 17ii7, to M. il'> I'ontch irtra'n, A largo r.uiniiLT of l!ii) sutllcvs prcfiMTC'l sulniiit'iii;^ to til') [lavinent of vorv om.ToiH 'iiii'<, rji'ior tliHi cxposi! tlii>in<'?lvcs fi lii|.|. their WM'k, wiiich Ihny jicrfinncil npon the 'Tcri,''!) of ni>!i'3 vviil.tou prom so-i, a:i 1 wlii/'i llio Sciitnior.-i snlistHjaDnilv rfli«n I to ''"■'>'! ''/ g'viiij con.'ejjioad uuloss uaJjr t!ij '."^n li'.ions ivhiub tii iv \ri;h..'.l t > iu;- t't'«e. Xli :h. \ ■• 1 I 1* -i; '. « 17 Octohor, 1717, Ist part of the Lake of Two Moun tains, conceded at 20 sols and a capon for 1 x 40 arpculs, and Gd oiccnsy without its being pobwible, &c., Sic. 13 April, 1727, Jief St Jean, to the UrHulines of Tlirn- llivers, 20.vow.s' and 1 capon, for 1 x 20 arpents, aiulUdo* cens^ without its being possil)le, &c., &c. It is true that there is a slight variance as to the depili, but it docs not prevent the rule of 1 sol from appearing even where as the ordinary rale, and even as the rule whieh wn- followed. If it were optional with the Seigniors to impose such rutcH as they thonglit pn)j)er, in no place would we find a |)ri)lii- bition to exceed the rate, and if in answer to that, you tell me that dillieulty is overcome by servic(^s rendered, I Hliali ask for what reason the Governor Vaudreuil, in the oun- cessions made by him lo the Seigniors of Montr(>al, on the 17th of October, 1717, of the seigniory of the Lake of Two Mountains, speak, as had been previously done in other concessions, with suc^h d(H'ision, such clearness, of ihr simpl(> rent {simple litre de redcvances,) and why does he pro- hibit the insertion, in the concessions of any sums of money or of any other charge &c. ? How does it happen tlint in \\\i' I .etters Patent of the King of France, granted on the 27tli April, 1718, confirming this concession, the King allow the lots of land of which there was at least one quarter cleared, tobe sold or granted at higher rates ? The Seigniors did not rc- ijuire such a permission, vmless they were limited to a cer- tain rate. As to those persons who sup|)ort the exorbitant pretentions of the Seigniors, I cannot see that they can do otherwise than suppose that the King did not know what he was doing. For my part, I shall willingly allow them to lake every possible advantage of the position they have a^ sumed. I think I have fully established tliat there existed a ge- neral rate, a rule, in the Country, in relation to concessions. " ■■ t' %' Ml that has to ho dono now is to dctoimino what that xwh". was. I shall do so while c'X|)lainin<^ the rluiractrr atui <'fr('clH of tho 7nv'7,v of Marly. I point out s(>v('ral dilhTcnl vysfenis, but I shall insist upon that ono aloni; whirh ap- pears uiainfainablc to inc. III. What were tlK' cH'o't, and <'hara ruislakin in thcui. A iiuiiibcrof farms which had been conceded by Ili> Majesty remained uncultivated and uninhaljitcd,andc^'rtainSei;;niors, uiuler diilercnt pr('t<'nhexac- 'mg any sum of money on account of such concession^ ; ^ttherwiso, and in ease of a ndusal, tlic inliabitants had u \t 1/ . t r 't ri^lil to (Icinaiid tliitsi; l.iniis hy rn-'ii)- iA' a .sumriions, iind if il were not <'()iii|)li(Ml with, '/ ..j,. ,il loilii* liovi'iriorinid I jiiili iiaiil (iciicrul, und lo the . •'; i ,;,t 'IiIm; said Count rv, w'Un had iiistriiclioiis iVoiii I lis .'.iajcsty to rraMl such larnii* in thr said !-('i;,'ni()rifs as such inhal)i!aiit.s iiiiy;ht rcre d(d)arr{'d I'nun hiivini^ an\ >:huui N\ hatc'ver \\\)(>n theiit. Ijcfore the ptissinL^ of the Arrr-/ t»f Marly, whereof the oh- jeet and intention w as to l)rini» the Sei,i;iiiors to reason, i! A\;'s a matter of ahsolute n"cessily, as well as of jjfood polj- fV, that there should he a lixed rate, olherwise, the Sei;.:ni()rs would have heen free to impose any rate, however hiijh ; :jnd l>y tlius imposin-j^ hi'j[li rates, they would have remleri'd abortive those very laws w hieh had heen inach; to eO'ect the seltleiMcnt of the Country hy faciiitatin'^' it. We see, never- thides'jjthat the Seit,'niors made a mo(dveiy ol" tho.«'e laws, and paid no attention whiitever to the benevolent, huinatie and christian inJentions of tlii- Iviriij^, and appeared to he cun- (U'rne,! very little rdiont their realization. So far as they are concerniNJ, this Arrrt becomes an am'- (juivocal warnini^ in ndation to a rule about which it \v;is impossible to be mistaken. And if you do not see in lh;il, MS (dear as tln^ li'.,dii at noonday, I shall not say, the esta- blishment, but the decdaration of the previous existence of ;i fixed rate, I shall allow lhos(> who shut their cys to the light, not to see it. As far as I am concerned, had I, at the |)rcsent time, any doul)ts as to th(> existence, in New France, Ixd'ore 1711, of an ordinary rate, whicdi hy ihiJi mean became a lixed oih', as it has already been remarked and proved, I do not know how it would be possible forme to entertain th()s{! doid)ts in the faet^ of su(di a I'ormal (le(dara- tion as th(.' one contained in that Arrets which expr(•s^e(l ;in idea whicdi is reproduced in the Arrets of 1732 and of IM'J- l'cf<_iio nil, the Seigniors were bound to concede at niode- II I 19- rale rntcs, it was fi matter of oMi^'ation with Mifin. Tlni ol)lii,'nli(»ti to (Id SI) was as ^'n-at with tliciii, as the ohlij^'ation to ijrant the lands was. It was not precisely a IriHt, '•'Jitlei- rv»H/H/\," as we \i!i(lerstati(l it ^'enerally, l»ut it was a kind id'trasl, and without clispulinu; about mere words, I think iliiit we can mention, withont fear, that the Seigniors had (i()t analisohite ow neislii|), hut a modilietl, (inaliiied and eoti- (litii)n;d one; the threat of re-iituofi to the Kini,''s domain, phires all doiiht on that head out of tin; (luotion. Siieli then is the markeil eharaeterislle of the Ain't ol Marlv in relation to Seii^Miiors. As to the motives which iiidiiecd the Kin;^' to issue it, they are suHieiently a|)|)a' rent : the slate of matters at the time, and the correspondence of till' Inteiidanfs, in which the exactions and encroachments of the Seii,Miiors are fully laid open, iid'orm us (juile sullicicnl- k of lli(»>e motives, withoul its heeomiu'^' necessary to re- peat them. I cannot admit that any douht can exist as to the eliaraeler of those laws, but as douitt exists elsewhere, I sliiill take upon mys(df to stale with Merlin, {/I'/k ro. /oi\ <^ 10.) " 'i'he laws should be interpreted by their mo>t natu- '• nil sense, by that which has most analoi'y witli the sid)ject, *' iind which is the luost inconfornnty with the intention of *• the legislators, , and which ( (puly leans most in fav(>rof ; for '• lliut purpose it is necessary to consider the nature of the law, '• Its njoiivi's, the connection it has with other laws, the ex- '• ceptiotis by whieli it m ly Ik; r(?stricl''d, and, at the same '• time, everythini,' which miijfht tend to explain the spirit "of it.'' For the present I shall not say anythiny^ about as- 'iTtainin',,' if tho-;e laws, both in relation to the Seii^niors, and those more particularly concernin:,' the inhabitatits ol New France, were laws of public policy {(Ponlrc piihlir^) niul if private individuals could derogate from them ; at a kite perioti, 1 shall have an o[)portunity of speak ini,' on tht; subject. I shall remark, for the moment, that, in tlie Arret of Marly ndativc to the inhubitantsi, you find expressions V'S ^ijVf i i" ^•\ I 22- 2(). What was the orit,'in;il ralo in this Connliy bcforo 1711 Lot us talv'f Olio sal and \\\v canon. So. lly :ii)i)Iyinu: wliat has jiisl bt-cn said to each scj- i'niorv : we should tnkc two so/s as Viw. <;. ncral lalc one so I and a capon as the ori.'^ina! rate iUU niib In ojiposilion to those three hypoliiesis or systems, ii he snid ihiit we cannot, either for the whoh- (.'ouiiliy in ral or lor each sei^niiory separately, take llie hii^he -! or tl irw owest ral as tlie rnh". The h)west rate, as w(dl as thai w nch is hii^her, may p"rhaps not he the ,%'eneral rate. The ori',niial rate in eae!i separate sei'^niory, may perlia]is not l)e the ori- t^inal rate eslahlished thronifliont the wlioh; (Joiinlrv, I Hal therefoi" reject it. It has beeonu" neeessarv from wliat prf- ee;h's lo (Mi.|uire v/hal was the general and cusloniary rale Ijcfore 17 1 1, s) that we may be ena hied to deduce si )m' raji' ; this is what I have done. My resoarches have h'd me to oiu' sof ol' ccns ( I n/ifr^ I'ov each arpoit in superficies aiifl oiic capon lor each arpnd in front, and six pence of nv/y. Alter a close calculation, without attcndini^' to v»-iy small fiaclieiiN, it is a mailer of liltle importance that the sum of Iwo.w/.t sliould he lotmd, beinii^ the amoiinl \\ hich il is \t'ry reasoria- b'v coulended, lias neviU" been exceeded in llie co.'K es.-ions. he Sei'.{iuors iiiust sulaiut to this resull It u III ni'ccs- >iary conseciuence of ihe principle which ! have a!)ove esta- idisMcd iis ;)wevcr IS a matter wilh wlucii 1 have nothini,^ to do. In my capacity of Judij^e, it became my ihity to try and ascerlain what the i^cneral rate was, in \.'>x(\vx lo deduce some cc riain rule from it I shall make one ohscr- valion more ; lliat rate is w :\ lovv', I may be t.ihl ; accord- in:^' lo my opinion, siicli an objection should nol be in,:(lo us(.' of, if vou v.'cre lo consider that the wus and llio.--e due:* v.e iiier al only the acknowledii(rr;'(l(Hl. lint in trulh, can yoii In' really serious when voii apply to the Jiid'f's to obtain, in an indiivi't manner, ^\':;it v.)U could never have dared to hope to obtain iVoiu \\v' Lc'^nsialm'e r 'I'lial is what I cannot understand. Fiiitlier on, while speaking of the character of the Ari'tUs III' M Illy, I answer the o!)jection urisint^ IVoia the lael tliiit liicii' is nt)t ijcfore this Court any recinest for tlie resiliation of the con'raeis by which the Cc'/sifairrs have bound lliem- ■iv 's to pay a rate exeeedinii^ v. hat was le-al. We 1 lave n^jtliia.'.,' to do aI)out the resilia!i(tn. TIk" Coiut has noihinj,^ It do but to di'cdare what is tin; h\^al rate ; it ir; the Coin- iiiissioucas tiatv to atteuil to the iemainder. I I lave only oul' more ooservalion to maki It i s a mailer I'l priiiciph; lor \iH' to vote a;L![ainst the answer which the t'.)urt has ,^dven to the :3.'3tli (piestion of the Attorney (jcne- .mI. The Court maintains that the Cci/si/furrs, to whom con- i'( s>ioii.s had been made, I'nan th(> time of the cession, and nri'vioiis to the passin .( of the Sei"n iona 1 A<-t (»r iHOi, at Jii;,'li(a' rales than were customary beiore the cession, havi.> II ) rii,'lit to be exonerated iVom tlie payment of the amount I >:((v-dinii^ those dues. It' I look upon th(^se clauses ol" the li' ids of concession, as null au'i void, wiiica are contrarv 1^1 ill" law of public order, and a\ hieh form the subject i!iatl(a- of this ijuestion, it is incumbent on me not to drav.' from th(.' conse(pienees of those principles ; I tlu're- lUC i'>n' aeknov.ied'fe them as and mv opinion is that the i''iis'ftair';<, who may happen to I'.r. in lliis piirticuiar p(;si- 'i'>i!, have a ri^lit to be exonerated from the jjaymeni of the ■tiiiDimt exceedinijj ihe Icj^id due ;iai(l v.ithout \\ Inch tli''V may have eiiu' jiulei)te<| in that amount. it d oes not ci'inc within the limits of my duty to speak of the propriclv »r iiiiproj)rii'ty of such a demand bein:^' made by the C(i).si- l-'ii-fs il diey shoidd make it. 1 have nothing; to do here i>ut to express my opinions as a -lud^a-, and f sliall exjiress li •'■in without liinderuncc 2Ag IV. Are the Edits^ Arr/'fs and Ordonnancea rdalivc to the rales of frranis, laws of |)nl)lic order : could they liav(> Ixi .. legally deroi^alcd from, by virtue of any private agn'enicnts ' The (juestion here is about the colonization of a vast Country. The Crown thinks of realising the great iind •jeautiful tiiought of difl'using over this continent, the bless- ings of the Gospel and civilisation which martrli in its footsteps. That thought is manifested in a thousand dif- ferent ways, and it hfis ])ecorne jjartly realised, when, also, it is in danger of being entirely suppressed by a class ol men who recjuire something more to induce them to < arrv out His Majesty's intentions. Decrees are issued ; their aim and object is to carry out a great and noble plan in the in- terest of an entire and immense Country. The Seigniors were not \\\i\ only class of jx'rsons who were cxposi'd to undergo the punishments deept>ed against those persons who niigl.l violate those laws ; the inhabitants of the Country in gene- ral come under the scope of the law which concerns tlieni all. The end and object of those two D(?crees were there fore the same. It will be willingly acknowledge'd that sd far as the cliararter of the feudal tenure and the essence of the contracts are coacerniMl, those laws are laws of publie order, but nothing more. Is it not true that, if I have es- tablished in my system, as I think I have, that the Arrd (A Marly acknowledged the existence of a lixed or general rale, or, in a word, a certain rule, in that resjx'ct it is a law of public policy, as well as in respect to the remainder.' Therefore, if I have sullicient reast)n to maintain this, it niiis! follow that no person had a right to derogate from that law by any private agreements which would be rendered, tor that very reason, null and void. The same reason become"^ applicable in the face of such facts as these. Tlie Arrets of Marly determine what has reference to the tenure and to the essence of the contract : every body is agreed that, m that respect, they are laws of |)ublic policy {(Pordrc pii//lii.i Why are those Amis laws of public policy in that re:-pect - Hecause they were essentially important to the establi*-''- 2b g iiient of the Country, ^vhich was the great object in view. Well, but was not the lowncss and the unilorniity of the ratew ecinally as important and essential for the establish- ment of the Country ? By alIowin ' I 26 ir rfniinciatioii ciiii 1)(' m;ul(! to public law, il caiuiot he (i.. ro^alcil IVoiM, whereas |M'ivate individuals may dero'/a' iVoiii a purely private law. VVe can cai-ily CDnceive tlmt i each p<'rsuii has a iii,dit to sacriliee his own private ainl per s>)iial int. Test, ()!i the ediitrary, no person has a ri^'Iit to c im nroiuise thi •iieral and puhlie interest. Turliier on, This (list incl ion hein,'^' onr-e idaeeil iiDcn " such a i<);){iii:.'", il niu>t, as a niatlerol' necessllv, !)(> a|);)lic ••' not otilv to the (•t)!istiliilinn;d laws, •h 1 hut also to a II ti ii; ollii r " codes which have nuieli to do \\ itli the i^^encral niicri'^N, '' the niaiiilcnaiii'c or\,hic.li is of the ^'reatest ini[)orlaiic!' ti *' tlie whole state." ••' At pai^e 1(1, ^N IH : " ju lh(> Coih' Ci-'il, we Mi-et wilh ;i " certain uuuilier oi'nrovisions, ".liicli, at lirst si^rht, woai I ippear to have !)een lutrodiN I'd men ly witl I a viev.' to vate inleresi, hut which, .<-;io;;s ic ., I'overu 1!m' eiciuur.aitv d HP |)Ul)l:e la I woidd answer tli;it what von can renoiiih loinlho<" \\w < merely has ndercnci' to private inluid I mvdit WiWi \\\\\\ 111' lin'-i)ar. '.\\:\ ol the lilier. aws Ml ndation to the powei' ot'llic part of ihe priviile !(/rm av, '■' //•';',) and Cored! tli;;t can the hushand rciioi nc pow / r ;■ a Iiu>l)a!ivl ? ("an any individual, at his own V, I i 1 in |)!i' 1- (lec:are luni- tv) be ■Mtnuat • or li niate,t ; 1 r ol' a'^e o'' under a:;(', capable or iucajjable oi' ■•,ucii .:u.l siuii a ilun^', o, iiiakmi,' a will or a tloiiaiDiM^ //•!' r/rns ^ Certainly not becaux', amoni;.'t other n: son. all tli'>(> laws, \n relerruce to suiii le-Ufers, e>M' tialiv iorm ■> nar! oi the puhlie lav.", ol \al;' i,. iivid:;a!s canno! deroijale from. aw wliicii .> c c;uuit)t. iv> Toullie!-, V. 1, p. 8c-f, N"o. 103), i.van;. " privat( ni^reouc ii!s, dcro'jfate from those laws wliicli n'.dU' '• to pidilic order and L^ood morals." 27 Cl :iM jviioiuii '' 1e illt'T.'^' : )()\V('r ol ill" •ivalc hiv.v 'noiiiic;' l.'i- IS (i\\ ii V, il! or i 1!> ■::!:;- )!i' ol illlil!^' oiialiop. id- I shall eI()S(! ihcso c.ifalioiis hy slaliii'j^ v.itli l)stioii here is not abowl )'''-ilialio!:. The cnlv queslion hen^ is to Ixiiov."V\liat is th(> l<>;:al rate and t) 'it'ci.'re what it i.- Tl le duty ol ascerlain;!!'' '.he amount iif indeiimily ha > devolved upon l!i" C'ouiiaissioners. I do nut see arc dillieullv in it. I'olli for the ('oi:;l and for lh».' {'mi: lllli.-;-n •neis it is merely a (iiiest ion of overchar.'.. ( \' . iliid 'he Courts of lavv' in Canada, al any pciii.d and hi'ii, and have luey still, at present, povscr K> cniwrce ihe /•;-,,'.V(.f .Marly ? Hvl'ie Ordinance of llie !7lli Ceo. Ill, wlKeh e>1.il)li in !••.;, I uals liicli I); d any reference to their propei;i(>s or lo their civil ii;'iiN. The Court of Kinif's IJencli es;abii-h(>d bv the ;Mth (iea.II[,\vliieli repeals the Ordinance of i^th (u-o. Ill, nil t! ludicial riirhls ol the Itilendanl in l!ic letiuu'cs A manner. A iirr.on may very W(dl be allowed to ima.'^-'me tha' tlu' ! f -A\: 28 g power.s of tin* Court of Kin<>['s Honch surptiasod tliospof tl,p Court of till! I'r>.''volt', of tlio Iloyal Justice, and iIk^ Intondaiii or Superior Council, (lie latter Ixiing bound to juil^'e accord- ing to the laws and ordinances of our Kingdom; whereas the Court of King's Hench, (sec 8,) had full power and ju- risdiction, and was competent to hear and detcrmino all «'omj)laints, suits and diMuands of whatever nature they might l)e, relating to all rights and actions of a civil nature, and which were not spr.'cially provided for in iho laws and ordinances of this Province, &c. The only exception was in relation to what came under the jurisdiction of the Adrni- ralty Court. Therefore, the tribunals, the Court of Comirion pleas lirst, then the CoJirt of King's liench, and those wliicli sincHj then, hav(' succeedcti it, could and can at the preseni lime enforce tlu; Arrets of Marly and the Arret of 1732, and follow up the jurisprudence (established, in relation to such matters, before the cession of the Country. VI. Is it true that those Arrets have ceastd to be put in force ? No, assuredly not. The aflirmative is quitt; unmain- tainable. The Seigniors themselves put them in force. As myoj)inions on this subject are the same as those ex- pressed by the Honorable President of this Court, and as I am desirous of avoiding repetitions, I shall refer to what Iip has said on the subject, adopting as I do his observation.-* and arrangements. Vri. Th(^ right of banality : what is its c!iaract(!r, from U'hence has it arisen, in one word, what is it ? During the time that article 71 of the Custom of Paris was in force, it only existed by virtue of agreement. Con- sequently, it was inadmissible into New France, unless by agreement. Therefore it is only necessary to ascertain from w!)ence it proceeds, that is to say, what is it& source in this \iU'. nnruam- 2dg Tounlry. The Ordinance of KJTo and llie Am'to( 1080 will answer that (piestion. That is the founihition of the source (if the rif^ht of hanality in this Country; for it wonhl he ab- tlie banality of the mills worked by water. I am aware ihat a ft)olish objection is made to the phrase, because the word it has been oniitttd ; but in the name of couuuon sense, can it be pretended lor one moni«nt, that tlu; obligation which is mentit)nt!d licro, 19 that of the Censitaires^ to pay the rentes ! And, if they had no deeds, they were not of that class of Ccnsituins^ Id whom it is pretended that these terms of the Arret have reference; if they had deeds, in their capacities of Cinsi- taires^ they had without doubt bound themselves to pay tlif seigniorial dues, so that it is quit<; out of the (lucslion to j)ut such an interpretation ui>on words which, notwithstand- ing the omission of the eV, evidently denote the oblii,'ati()n entwred into by them to carry their grain to the mill tube ground. JJy the assistance of this rciasonable interj)relati()n, it has become possible to understand what the King meant to say in the Arret of 1G86, which did not establish, but merely settled how the right of banality should be exercised in New France, by coupling that Arr^t with the Ordinance of 1G75. What becomes conclusive on this point, is tliif, Xhat Art. 71 and Art. 72 of the Custom of Paris, being al that time in force, the Ordinance of 1G75 emanating from the Superior Council which could not in any manner net contrary to the /c«/;.v and ordinances of the Kinij^doiu, that ordinance could not set aside those two Articles of the Cus- tom of Paris. And the Arret of the 4th June, 168C, altliougli emanating from the King himself, had only in that resi)ect the effect of a judgment subject to the Custom of Paris ; that is to say, that by virtue of an agreement, there was in NewFraiice, a right of banality ; not a general banality, that would be absurd, but a banality agreed upon, established f i 31 A' bvtlie Ordinance of 1075, and regnlattMl by tlifi Arr^toi 1686. It is true that there wore some Censitaircs who had not bound themselves by their deeds to take their grain to the mill to be ground : they would not be subject to the banality. That is the very thing now under consideration, it is the legal and logical consetiuene*; of the law. As a nuitter of course, a like coiiseiiuence would follow in the casj; where the Seignior, having neglected to build a banal mill within the year should have lost his privilege of banality and that the same should have fallen into the hands of the Cfc'«,vi7am*. The same rule should apply in those eases where the Cen- sitdire ac(piires the right of banality. And the same conclu- sion must be come to in both the hypothesis which 1 lay down : in the first place, the almost entire universality of the persons who should not Iim ibjected themselves by their deeds to banality towards tin .seignior; and in the second place, the case where a large number would have bound tlieiuselves to banality in favor of the Seigniors, previous to its being forfeiu-d, and a small number who would not have bound themselves. In that case, those who before the for- feiture had bound themselves towards the Seigniors, would, by that very means, become bound towards the Censitaire to whom the right of banality had beed granted ; and as a matter of consequence the others would not be bound. If, previous to the Ordinance of 1675, there had becm, as it has been prt!tended there was, a legal banality and there- fore a universal one, we would not find in that Ordinance the order that, those who had bound themselves by their titles, (ij'C., would be held to carry their strain to be ground, <^*t'.. And if, as I imagine, the Arr^t of 1686 refers to the Ordinance of 1C75, and is connected with that Ordinance, and in the ^ame manner regulates the right of banality which it had to establish in Canada, that is to say, the conventional banality qualified by that Ordinance, and which might and should be ('alh.'d banality canadicnne, it must follow that the Arr4t of 1686 it not a universal title of banality in favor of the Sel- goiors of this Country. IMAGE EVALUATION TEST TARGET (MT-3) /. 1.0 I.I 1.25 ■-IM It 1^ IM 2.2 1.8 U 11.6 V} ^ /2 ^l c^ > > y /^/ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 873-4S03 # ,v ^- 1>. i\ \ ^\ !i^ n' |l .': 32 g There is no reason therefore for stating that it was a lo^al banality which was introduced into New France, and lliat the Arret of 1686 has become a universal title for tiie Sei- gniors. But you may perhaps tell me that the Crown has acknow- ledged that the Arrdt of 1686 had produced that result. My answer is that I do not base my opinions upon the ad- missions of any individual, but upon what I really think is the law of the Country. If per chance our ideas were not clear, as to the character as well as weight of the Arre't of the Council of State, of the 4th June, 1686, relative to banal mill?., it would be very easy to render them more clear, by reading, in the Repertoire de Jurisprudence of Merlin, Vo. Arret, Arret du Conseil. " Les Arrets du Conseil du Roi sont explicatifs, on " simplement confirmatifs d'une loi precedcnte, faite par Edit, " Declaration ou lettres patentes.''' Therefore the most we can say is that the Arret of 1G86 is explanatory or confirmatory of the Ordinance of 1G75, which refers only to conventional banality, lo because ii speaks for itself, 2o if it were ambiguous, it should be in- terpreted in favor of those whom we are desirous of binding to banality, 3o because that Ordinance emanating only from the council, could neither revoke, modifiy and still less set aside the Articles 71 and 72 of the Custom of Paris. So far as stating that the King in Council, by a simple De- cree, could do so, instead of having recourse to an Edict whi'ch is a law passed for the purpose of prohibiting or or- dering any certain thing, that is an absurdity. It is one of the characteristics of the Arrets of Marly that they do not attack any positive law, any text of the Custom of Paris; they only confirm what had been sanctioned by pre- vious laws, and confirmed by rules universally acknow- ledged and received, or they prohibit what has never been expressly allowed by any law or any text. If the Arr^t of e, and that 33 g 1686 be not coupled witli the Ordinance of IG75, it is with- out effect, because Articles 71 and 72 of tiie Custom of Paris are there to prohibit the right of banality of any water or wind mill, unless it be agreed to. This proves still better and without the possibility of its being rebutted, that there never was any legal banality, as it is called, es- tablished in this Country: they are vague terms, void of sense or meaning. One word more and I shall have done. It would be more than astonishing if you assigned to the pretended legal banality in Canada, the rights which the Seigniors attach to it, I mean, not only the right of grinding all the grain gather- ed upon the land, but also all sorts of grain, no matter whether it exceeded or not the quantity necessary for the subsistence of the family. I have only one question to put. How could they supply sufficient for that, and where would they be after the expiration of twice twenty-four hours, since the inhabitants are not bound to leave their grain there ? As to the grain intended for exportation, whether gathered or not within the censive, and which the Seigniors contend the inhabitants should be bound to have ground, it is quite suffi- cient to mention it, in order to render palpable, the redicu- lous exaggeration of such a pretention. With reference to another extravagant pretension of the Seigniors, that of caus- ing the demolition of the mills built by the Censitaircs ; it is without foundation ; there is no law to sustain it. Moreover for my part, in my system relative to running streams, which I am going to explain, I must say that I cannot for a moment adniit that pretension. It must be understood that I admit the right of the Seigniors to recover the indemnity of what the Censifaifts might have had ground for the requirements of their families elsewhere than at the banal mill, if they had bound themselves to the banality, but I deny the right of causing those mills to be demolished which had been erected by the Censilaires. I have expressed my opinion in the case of Monk vs Morris, upon what we have been pleased to call the juris- i|ii 1^' rift y '• ■ ' I"' ■; t'* ■■i 34 g prudence of the Country. I have but one word to add to- day. It is this, that if it be the duty of a Judge to conform to a series of uniform decisions upon a doubtful question but one equally balanced, and to regard as the best interpreta- tion of the law, the judgments rendered at the time or shortly after the promulgation of that law ; it is also the sacred duty of that Judge to prefer the law to erroneous decisions, how- ever numerous they may be, when it is evident, as is the case here, that those judgments are based upon an error so pal- pable that it strikes the eye at once. In my opinion, the first judgment was erroneous ; the second one could not be true if it were in conformity with the first. The third could not cause two errors to produce one truth, and so on, no more than 1x1 equal 3 and 1x1x3 make 6. VIII. Are the Seigniors the proprietors of the running wa- ters, and of the unnavigable and non floatable river« ; does that form a portion of the feudal tenure ? If the Seigniors are not proprietors in their capacities of feudal Seigniors, were they proprietors as Seigniors high-justiciars ? and after the abolition of this high justice (haufe-justice), did they hand down this right of property ? Finally, if the Seigniors, in their capacities of high justiciars, were not the proprietors of the waters, and had not the control, of the unnavigable and non floatable rivers, what was, so far as it relates to this, the effect of the abolition of high justice ? Every thing relating to these questions is of great interest and of the highest importance to the Seigniors and the Censi- taires, and to society in general. We find in the roman law, and it is the law of nature, that large rivers are public pro- perty, and that every person is allowed to fish in them ; the unnavigable rivers, not being public property, belong to the persons through whose land they pass. They can therefore fish in them throughout the extent of their own land and make use of them as oi their own property. Tiiis agrees with the principles of french jurisprudence, as rtiay be seen on looking at the notes of Ferriere, p.p. 3 et 4 of v. 2, of his 35^ translation of the Institutes. Nothing is more in conformity with good sense and with justice, and it was nothing less than the feudal system which could have furnished a pre- tence for calling such a principle into question. The en- croachments made by the Seigniors upon the properties of their Vassals and upon the roads, they extended by a kind of pretended analogy, to the waters ; and following the same plan, they arrogated to themselves, as feudal Seigniors and as high-justieiars, not only the control of the waters which they pretended was derived from high justice {de la haute- justice,) but also the proprietorship of the unnavigable and non floatable rivers. In support of, or rather to render cur- rent, what I would call false feudal coin, there have been found a certain number of writers, feodists, as you may be pleased to call them, whose pretensions, I may say with Championniere, are quite incredible, and prove to what ex- tent they can go when it becomes necessary to systemize any pietension. r ii r ■ c 'A ,"' ■ ' 'I '• i' ; !<' i ''.■;■' 5:.. ''■'■■ \ Before beginning to cite any authorities, for, says the same author, the stibstance of a large number of them is founded, at the present day, upon citations of Arrets, or upon what is said by commentators, I must remark, with Merlin, that rivers were in existence before seiguories were, and that it is impossible to look upon the rivers as seigniorial grants. Navigable rivers belong to the whole population in every Country. They are called public property. It was only by imagination or rather by a perversion of opinion that it was ever held to be a maxim in France, that navigable rivers were the property of the Crown. This is not a matter to be suprised at, when we hear Freminville {Pratique des ter- fiers^ t. 4, p. 426,) amongst other presumptuous assertions, tell us, that the Sovereign, as Lord and Master over every- thing in the Kingdom, distributed the Jiefs and seigniories lo those persons upon whom he chose to bestow them, and gave them the full right of property in the lands and in the waters upon or crossing those lands. Certain paid writers and feudists have speculated heavily upon this question ; and in i!j. u- . ,„ . . . -, . (,^ )ii ".J" 'W' 1 36^ a Country where everything tended towards oentralisatioii, such doctrines were likely to make tiie fortune of tliosi.' M^ho supported them. The King never was absolute pro prietor, he was merely the administrator of the naviguhlr rivers in the name of the public which he represented. So far as the non floatable and unnavigable rivers are coneerncci, he never had and never could have the ownership of tlieiii. He could take possession of ihem as being the most j)o\ver- ful, but he could never take the ownership from those who alone had a right to it by the law of nature. Those rivers belonged, as they do at present, to the soil and to those who lived on their borders. The King could not make them over to the Censitaires ; and it, was not necessary for iheCemUaires and for those persons to wliom the banks belonged, to ac- quire from the Seigniors the rivers which formed part and parcel of their land, just as much as the soil which it was necessary that they should w^ater. Every time therefore that a Seignior concedes or reserves those rivers, he does a useless action, or he reserves what could never have be- longed to him, and the Censitaire acquires nothing more that what he possessed with the land which belonged to him, and he loses nothing of what essentially and necessarily belongs to the soil. It is therefore an error, a sophism to state that the Seigniors did not make over the ownership of those rivers ; if these latter did not acquire it from the King, the Censitaires acquired nothing themselves. Upon those grounds we are led to ask if the Seigniors, as high-justiciars, ever did acquire such ownership. As to tlui ownership I will answer that it is out of the question. As to the control and superintendence of the rivers, the Seigniors, by a kind of pretended analogy, as I have previously said, at- tributed to themselves, or, in other words, usurped that control and superintendence which the most moderate of the writers have appeared to look upon as a remuneration for the time and expenses, &c., of those Seigniors who were charged with the administration of justice. For my part, I do not even admit this system. But admitting that there was some Jv:V 31 g fuundiUion for it, it appears to nic that it would be nothing but reasonable and legal, that high justice {haule-juslice) being once abolished, the i)ayiuent of it should also be done away with. If I were asked what effect I would atribute to a conces- sion, made by the Seignior, of an unnavigable and non floa- table river, or rather of the privileges which the Seigniors, liigh-justiciars, (hauts-justicurs) attached to it, when they fulllUed the duties of high justice ? my answer would be, that they could not make over any right of ownership, since they iiad none themselves. They could only transfer such privileges as they might possess. If they did possess them legally (which I am very far from admitting,) the moment that high justice [haute-Justice) was abolished, any accessory to it must have fallen to the ground. It does not appear any where that, before the Country was ceded, high justice had ever been '•nforced in this Country. At the same time, it is certain that it was formally abolished in the seigniory of Sillery, and in the Jief belonging to the Jesuits, in the town of Three Rivers. This was effected by an Ordinance of M. Raudot, the Intendant, on the 22nd. October, 1707. (See Cugnet, Extraits, tf-c, p. 25.) The conclusion to be come to, so far as the Seigniors of Canada are concerned, is quite clear : never having had any right of property in those rivers, and only possessing the privileges, which at a certain time they may have exercised through usurpation or from high justice, [de la haute-justice,) which has since been abolished, they cannot at the present time make any claim in that respect. Those are my opinions, and I think that they are \ven founded. It is through reflection and by reasoning that I Imve come to the conclusion which I have just mentioned. Let me now see w^ho are around me ? If I am mistaken, it will, at all events, be a consolation for me to share, in good fuith, in the errors of several eminent jurists. ;ii' "t. . 'I r;H : m. 'M '-■,'f 1. ■ V! ,r ■'.'■ : '^: ■:n ■-. 'm ^U -M SSg Speaking of the objection raised on behalf of the Seigniors, in relation to the effects of the law abolisliing seigniorial rights in France, (Art 1 of the law of 26 July, 1790,) Merlin, Q. D. P^che, § 1, No. 2, expresses himself as follows : *^ The objection supposes, as a matter of fact, that some old *' laws were in existence, which attributed to the Seigniors " above mentioned the ownership of the unnavigable rivers, as *' there were some which attributed to them, as having supe- *' rior and mean jurisdiction, (/f S9g " really been the proprietors before the Decrees of the 4th of " August, 1789 ; but that is very far from being the c ise, and " it is even so far from being the case, that we might, by " imagining the seigniorial jurisdiction to be still in existence, " or what would answer as well by looking back at the time " which preceded its abolition, maintain that the rivers do not " come under the jurisdiction of the Seigniors. That is the " result which must necessarily be arrived ,J- iijjon a delibe- " rate examination of the Ordinances and Customs, and of the " greatest number of the authors who wrote long before the " Revolution. ... If you look at the Ordinances, you will find " that they assign to the State the ownership of the navigable " rivers (1), but you will not find that they say anything about " the rights of property which the laws of nature and the ro- " man laws give to the owners of the adjacent lands over the " small rivers, which by themselves are neither navigable nor " floatable. ... If we look into those Customs, we will only " find four (2) which state that the Seigniors are the proprietors " of the small rivers ; and it is not to be doubted that there is " no person but who will say to himself ; It is not possible that " a stipulation so contrary to natural liberty should be thecom- " mon law. The object of it was too interesting to escape " being noted down by the writers of the Custom, if they had " looked upon it as a general law. It ought therefore to be " confined to the limits of the Customs which have establish- " ed it." Bacquet, Traite des droits de Justice^ ch. 30, No. 25, tells us " that neither the King nor the Seigniors have any more " right over the unnavigable rivers than over any other pro- " perty belonging to a private individual." Boucheul, on article 40 of the Coutume de Poitou^ No. 6, states " that the small rivers or streams belong of right to the " proprietors of the land which forms their banks." (1) Ordinances of Charles VI, in 1407, art. 2; of Henry II, in 1554; of Charles IX, in 1572; of Louis XIV, in 1669, tit. 17, art. 41. (2) Hainaut, ch. 134, art. 12 ; Troves, art. 179 ; Vitry-le-Francais, art. 121 ; Ni- vernais, tit. 16, art. 2 et 3. ,' 'I, n '■ ■ i I. ', ... i:t,.\1 I > i|;J;r; ' ■fill M^: 1* -nil ' T'' ' * ''> I ■ t. % 40 g Guy-Papn is of the saiiu; opinion, he asks in iiis 51 Jih question, tttrum barones possint prohihrre in svis lerris^ ni' quis piacari habvat in rivis labentibus in svis tcrris ; and he refers to the 171st question, where he states the nej^ative with this restriction " unless there be a custom to the con- trary." Simon, on the Ordinance of 1GG9, tit. 17, art. it, remarks that " the proprietors of unnavigablc and non floatable " waters, and those through whose lands they run, may make " use of them for all their re(juiremenls." Domat decides it thus, {Lois civiles^ liv. 11, lit. 6, m'.. 1, No. 5) : " Those streams which are not in public use, and " whicii belong to private individuals through whose land;* " they pass, do not establish the boundaries, but each proper- " ty has its own boundaries as prescribed by the title or by " possession." Then look at Merlin : " No jurist has treated this question better that Souchetha* " in his commentary on the Coutume d'Ang-ou77iuis, printed " in 1730." .Championniere says, speaking of Souchet and of the man- ner in which he treats the question, " perhaps it would only " be the truth, were we to say that he is the only one who " has really treated the question." Upon the honorable testimony thus given to the superiority of Souohet, by two men like Merlin and Championniere, who have had the modesty to mention that superiority, we may well be allowed to attach some weight to the opinions and to the assertions of a celebrated author who, in com- mon with Merlin and Championniere, did, at a comparative- ly recent period, view, in its proper light, that question, which only became one because the matter had become con- fused, and who, in the same manner as Dumoulin, proved alone against the opinions of all the others who did not wish to acknowledge him in the right, that a. fief and justice ^^: 41 g have not/iiuff in common., dared to tiiinU for liiinsclf, and se- parated from llic shuopish crowd of writers, in the pay of the Sei'miors, wliose whole knowledgj', as Championnien? says, was composed of citations from //rr(?7,v or from commenta- tors, a distinction characteristic of inferior minds. Li.'ilen to tiic words of Souchet, v. 1, p. 28G. " The Ordinance of 1GG9, says he, only acknowledq'es the " King as proprietor of those rivers which carry boats, that is " to nay, which are navigable. It does not allude to the rights " of property cx(;rcised by those Seigniors having property on " the small rivers, and which are neither navigable nor iloal- " able of themselves. " lie is one of those auth6rs who have made a distinction " between small rivers and rivulets ; others have placed rivers " and rivulets in the same category. Guyot, in his Traile dcs " Ficfs^ says that the distinction between rivers and rivulets '• has fallen to the ground. The distinction is really useless : •• the ri'dits of those living on the banks of rivers and rivn- •' lets are the same." " Guyot, Lebret ct Chopin are the only authors who pretend " that the Seigniors are the proprietors of rivulets. All the " other authors agree that they belong in partto the individuals " along whose land they run, and that they are part of the " property ; that they all have a right to use the water " for watering their land and for steeping their llax in. " The Roman law has put a restriction upon that law, which " natural justice would dictate to every man. It is, tnat while " making use of this great blessing, they must not injure any " person : dam tamen hoc sine incommodo cujus quam fiat, , . . " Of what use then to the Seignior can the pretention be " which they have of maintaining themselves in all the rights "' which, as they say, they had under the old system, over the " unnavigable rivers, since it has been proved that under the " old system, they had no right to the proprietorship of those r f : 1:1 ; ■ '1 'Ik 'n •' '\'^^ ' . J .. •:l5:i i'< '■,;;• I. !^? ■ ■ '■ t'<' ' ■ V '-.1? ; ■•• ''jif'V' ■■■;■'' '?•' ■ m i ■ 42 g *' rivers, at least in those customs whielidid not expressly ^jvo " it. MoMt assuredly that pretenstion is not maintainabh*, but " it will appear unieh less so when we shall cornpan* it with " the principles by which we have prev iously established that, " even supposing the proprietorship of the rivers lo bo j^'ua- *' ranteed by the old system to the Seigniors, it could hv in- " voked by them at present, because they had lost their (|Uii- " lification of justiciars which was their only title, or more " justly speaking, their only pretence. " That being laid down, it is certain that they cannot have *' the exclusive right of fishing in the rivers. They would " most certainly have it, if the rivers belonged to tlieiii, an " their ponds or their private waters did. But as the rivers " did not belong to them, by what right did they claim tlio " exclusive right of fishing in them ? "The right of fishing, continues Souchet, is a right inse- " parable from the property, as the watering of the lands, it " is a particular custom belonging to the property. For these " reasons, Guy Pape maintains that the Seigniors cannot " prevent their Censitaires from fishing in the rivers which " run through their lands. " The proprietorship of a river would be an illusion, wilh- " out the right of fishing in it, and using it freely lor the " irrigation of the land. It is unquestionable that the pro- " prietors of lands have the right of fishing in the rivers which " run through their lands and which water them. " If, under the old system, all those who knew how to place " at their proper level the attributes of the seigniorial jurisdic- " tion, where is the man, at the present day, who would dure " to think and speak otherwise, now when the seigniorial ju- " risdiction is abolished, and that the privileges attached to " that jurisdiction, are done away with ? We will therefore " come to the conclusion that, in every possible respect, the " Seigniors have really no.right whatever to olaimthe exclu- " sive right of fishing." i:i rivers which 4Sg I shall now return to Merlin, nnd I will cite some pas- »agt'8 from hi» article " Co«r#^*£iM," Q. D. § 1. " Till! first principles of reason teach us that rivers exist«'d " before seigniories did, and that it is conseciuently injpos- *' sible to look upon the rivtirs as seigniorial grants, and " therefore that the control which the Seigniors exercised " over the rivers up to 1789, was neither the price, nor the " emanation, nor the modification of any right of property " given up to the public by them. History and the first prin- "ciples of reason both teach us that seigniorial jurisdictions, " at their origin, were only public duties confided, by the " higher functionaries, and by the King to subordinate agents, " which jurisdictions having become hereditary by conti- " nuance, do not, for that reason, lose their original and pri- " mitive natures of jntblic duties ; that for this reason they " never could assume the characteristic of properties ; and if '' they nevar had that character, with greater reason still, " they never could transmit it to objects over which those ^ duties were exercised ; and therefore that a Seignior could '' not consider himself proj)rietor of the land over which he " had jurisdiction, nor of the rivers under that jurisdiction ; " that he never had any right over the rivers, but merely a " power of administration and that, most certainly, the right " of administrating a public property does not confer the " ownership of such property. " In the ancient reports of our Jurisprudence, we find that " traely the rights exercised up to 1789 by the Seigniors over " the rivers, had no other foundation whatever than their " right of jurisdiction." Merlin cites Boutiller, Despeisses, Boutaric and Loyseau, who have supported the same side of the question, and he rloses this part of the subject in the following terms : " It is well established that the rights exercised up to 1789 '■ Lty the Seigniors over the rivers, were only derived, as we '^ have before stated, from their jurisdiction, and from thiS),it :■%-- 'II I -, r t H :i-' *■':» .i;;f •: f. ''*■, ':.'■ ■i ■ . ;'A '' f >■- ■'iS '•t' 'Mlj. ''\' .,';;|!'i-l'! '0:1' 1 }k-% ■. ■■* 'W n t .* ' M- 1^ •' '■■''■^1'. >!i; ■y,-- yr itii- § ^^a-' 44 g " must necessarily follow, thatthcir right of jurisdiction being " abolished, or to speak with more exactitude, the |)iiblic " duties which had been delegated to them, having been done " away with, the power, with which they had been charged, " or with which they stated they had been charged, by the " hereditary representative of the Country, being revoked by " the nation itself, the salaries and emoluments attached to " those situations must, at the same time, cease." Troplong, Prescription, v. 1, p. 190, which I only cite in relation to the jurisdiction, says that : " The feudal power had invested its Seigniors with tiie " right of superior jurisdiction (haute-justicc) as an attribute " of their power, and as that power led to expenses, the " Seigniors taxed their treasury with the payment of certain " amounts to enable them to meet those expenses. AmongsL '* these revenues were the ownership and control of small " rivers," Troplong, in the same part of his admirable treatise on Prescriptions, proves that those small rivers, or unnavigable and non floatable rivers did not belong to the Crown, but were the property of the persons owning the land on their banks. And he also goes to show, in what respect and how, by the right of accession, an island rising in an unnavigable river belongs to the person owning the land on the bank of the said river. I now have only to cite some passages from Champion- niere : {Eaux courantes, p. 691, No. 395.) " Such, says that distinguished writer, is the descrijition *' presented to us by the law of custom in relation to small " rivers, for at least twelve centuries. The possession of " those streams of water has never ceased to belong to those " who owned the land on the banks ; the rivulets have not " ceased to water the fields and pasture lands for the benefit II r I 1 I ! ' I \ 45 or " of llic farmer. No general law ever Sf'parated those two " essential c'iemcntsofproprictorship. I defy any person to point " out any time wiien it has been otherwise, when the proprie- '• lor, at the time he sold the land, did not sell the waters '• running through it ; when the h(Mrs did not divide the rivers " at the same time as the lands watered by them ; when the " proprietor of any quantity of land did not believe he was " entitled to unite the running streams, to direct them and " to maive nse of them as lie did of his fields, his forests, his '"' vines, and his other properly, without however intc^rfering " with any rural servitudes, or with certain local and csta- " bHshed customs, or any certain exceptional rights, arising '• from oj)pression or from agreement, whicii hid been done " away with, were reformed, or were fallen into desuctiidi' " ulinost every V\-Iiere." " You will remark, he goes on saying, that in the acknow- " ledgedelementsof the administrative i)ower, in transactions " between j)rivale individuals, they do not sell and do not "divide among themselves the highways and public places " and other portions of land which the seigniorial jurisdiction '■ has taken pos:5essicn of ; how then is it to be supposed that, '• in the face of a general and legitimate law in relation to the " right of property, the Seigniors would have allowed them " to perform daily acts of possession in reference to those " rivers, and have sanctioned them afterwards." It is hardly necessary to remark that this short passage •'xprosses the entire idea of the author, and that it exhibits, ;it a single glance, all that the attentive perusal of Cham- pionnieie's work contains upon this interesting and impor- i:int snbjeet. This great writer, who has so ably traced the urigin and discovered the character and genius of the t'udal institutions, the history of which he has written with ;i^ much iin])artiality and fidelity as ho has displayed in de- V'loping their progress, shews the rights, and makes known ti!t;ir encroachments, abuses and untenable pretensions, and '■> therefore very worthy of the consideration enjoyed by him ■\ • m-t % 1' -if A '1 .-. :;«' ■m ■ '; ).l . ' ■ W'-^ -»' -i'!? /■■■■; 'fiV;!> M , ■■ i.S m •J ■ 'A' }$:'f ^'. . . "J'-W '•I J. t 1- ; I '■'■ ! l'» 3S'--.; '*> 46 g in consequence of his admirable work. It is a matter much to be desired that, instead of attaching so much importance to the exaggerations of certain feudists, those who are searching after the truth, amidst the confused opinions of those writers, " whose knowledge is composed of cita- <* tions from Arrets or from commentators," would tal- Jo- 6. ittached to the lest. 314. § 2, No. 8. A7g Bacqnet, Droits de Justice^ ch. 30, No. 25, Loyseau, Des Seigneuries^ ch. 12, No. 120. Choppin, Du Domaine, book 1, tit, 15, No. 6, Gallon, tit. 31 de VOrd, de 1669, Coquille, Gout, de Nivernais, ch, 16, art. 1. Legrand, Coutume de Tropes^ art, 179, § 1. Marcilly, commentator on the Custom of Troyes, art. 179. Bouhier, commentator on the Custom of Bourgogne, ch. 62, No. 106. Bouvot, commentator on the Custom of Bourgogne, cited by Henrion de Pansey, Diss. feod. Vo. Eauxy § 13. Fabert, Coutume de Lorraine^ § 301, p. 481, Ancien Repertoire^ Vo. Riviere. Pothier, du Droit de propriete, No. 53. Chabrol, Cout. d'^Ativergne, v. 1, p. 53. Herve, Theorie des matieres feodateSj v. 4. Authors who assign the ownership of the water courses to those who live on the banks, (1) Boerius, decis. 382, Nos. 4 and 5, Domat, book 2, lit, 6, sect. 1, Boucheul, Cout, de Poitou, art. 49. Hevin, ConsulteSy 5^ Ricard, Coutume de Senlus^ tit. 13, art, 268. Ferriere, Institutes^ book 2, § 2, Trait6 historique de la iSouverainete du Rot, ch. 9, No. 12, Authors who assign the ownership of the waters to tlie feudal Seigniors. Lebret, Traits de la Souverainete, book 2, ch, 15. Gayot, Traits desfiefs^ v. 5, ch. 669. Henrion de Pansey, Dissertations f^odales, V. Eaux, § 7, (I) To these authors, aays Chaapionnidre, we must add those who are cited titprH, N». 381. -M4 . I. ■-■' HP ;J^ IS. ■:' t.'' vli' 'i^- '^Ki(l ■ M ,1. - '' '■'■■ ' , <{ >. 1^! -A I'll « V ■^i, ■■'!•■ i"-' I f 48^ Basnagf', Coutume de Normandi(\ art. 20(J. Ilerve, Tkeorie dcs mat teres feodalcs, v. 4. ' , ! ' - Authors who assign tlie ownership of tlie small rivers to the Seigniors liaving superior jurisdiction. Laroche-Flavin, Traite des droits scigne.iiriavx., cii. 17, art. 1. Dcspeisses, tji. 5^ art. 3, sec. 9, No. 1, Bobt', Coutume de Mcai/x, art. 182. Bretonnier, sKr Henrys^ book 3, ch. 3, quest. 35. Laplace, Vo. Fletive, No. 70. Pelee de Chenonteau, Cont. de Sens, p. 21. Lapoix-Freminville, Pratique des terriers, v. 4, p. 42G, " I shall close what has reference to the authors (say- "■ Chanipionniere, at page 703, No. 402,) and at the " same time the chapter upon the law relating to rivers, by " making known the opinion of two celebrated jurists, who, " it appears to me, give a summary of the whole subject. " One of them is Souchet, the last commentator upon coin- " mon law, and who, according to Merlin, has treated the " question, relative to rivers, better than any other autiior." Cliampionniere adds in a note : " Perhaps it would be " true to say that he is the only one who ever really treated '• the question. The argument is a very long one, and I onK "• give the conclusions here." As I have cited that passage from Souchet previously, 1 ri'fer back to it. " The second one (says Championniere, p. 706) is Merlin, " most decidedly the best jurist of modern times, and tli" '• best informed on seigniorial law " Qnestio7ts dc Droit, Vo. Pedic, § 1. It has been already cited, and I refer to it. Champion- niere closes with some very judicic us remarks. He say?: If* 49 o- ^ The rcadcj" may have pereeivecl liow exactly all the infor- '' mation contained in this book, applies to the doctrines ol' •' Merlin ; therefore, on the one side;, the most conscientious '' and minute examination confirms the accuracy of the theo- " ries of the most eminent jurist of our age, and, on the other " hand, the result of my own labor will be corroborated by *■' knowledge of a high order, and by the authority of n " great name." Quite recently, since the able arguments of the Counsel, I have observed, in the notes of one of them, some citations from Demolombe, in support of the pretentions of the Sei- i^niors that they are the ])roprietors of the small rivers. Demolombe has merely touched upon the subject ; and most certainly, without classing him among "those whos» knowledge is comj)osed of citations from tlie Arrets or from commentators," at the same time that I pay homage to his talents and his great learning, I must say that he does not appear to have taken much trouble to search into the (lucs- tion which we have at present before us. On his way he has gleaned in the field of the celebrated jurist whose opinions, he says, he does not agree witlr and he has cited some authors. Nevertheless his superior mind was struck whh two things ; in the first place, that the feudists rather establish the state of the possessions than the justice of them ; in the second place, that at the time of the Revolution, the accredited opinion was that the small rivers did formerly l)elong to the Seigniors having suy 'rior jurisdiction. And it does appear to me, as it did to Demolombe, that " those authors rather established the state of the posses- sions than the justice of them." And without absolutely denying that the " state of the possessions, that is to say in other terms, the social facts themselves, the customs and traditions were at that period the principal component parts of the public law of France." We must not however admit for that reason, that the Seigniors had the full and entire possession of the small rivers. > ■-. ; ''v']'y'i\ > .1'; .f.f. '■■•f.A ,^- . "If 'fi'' -Ki'M ^r^^f. ■■ i 50 g Ah to the " opinion," referred to by Demolombe whea he say« " that, both before and after the Revolution of 1789, nothing was more accredited," it does not established it aji law, and if such an opinion were accredited, which might happen, it would prove at least the grave and perniciougi error which existed in relation to those pretended privileges, as well as in relation to a number of others which increased the mass of overwhelming abuses which shook the social edifice in France to its foundation, and necessitated the re- construction of it. Demolombe is the most recent writer on these subjects, or rather, the one who, in the lOth vol. of his Cede Na- poleon, which he continues, is the last who has cursorily mentioned it. I therefore sum up my opinion in two words. The Sei- gniors never were the proprietors of unnavigable and non floatable rivers, and if they did attribute to themselves some privileges on that score, it was either the consequence of en- croachments or of the confusion which they brought upon the ^^Z" and the jurisdiction. Besides the superior jurisdiction being abolished, the accessory which, at the most, could only be the consideration, falls to the ground with it. IX. Legality of the reservations : what is the law in re- lation to them, and what is it in relation to the charges and prohibitions ? In the system adopted by me and which I have previously explained, it is strictly logical only to acknowledge, a? being authorised by law, those reservations which are ex- pressly allowed by the Custom of Paris, unless the latter ha& been modified by the law of the Country. As a matter ol course, those must be admitted which have been sanctioned by what is properly called the law of the Country. It is unne* cessary to add that the same rule should be followed with regard to the charges and prohibitions. I therefore reject, as illegal and null, all the reservations mentioned in the I 51 g compendium of the Propositions of the Crown, fronn the 39th to the 42(1 inclusively. See the Propositions of the Crown on this subject (1). But I think that the Attorney General has admitted, as being legal, some reservations which, to my mind, are, together with a number of others, quite void and illegal ; but I must give some explanations. ■:#i: (l) 39. 1. Custom seems to have sanctioned the reservnti^ f timber for the build- ing of the raanor-housie, mills and churches, without indeiunity ; moreover, such ruserviitio s wore made for the general good, and were calculated to promote the co- lonizaiion and settlement of the Country ; 2. The rsfervatioB of fire wood for the use of the Seignior hiis not received the sam« innctinn, and is repugnant to tne principle of the fuudul contract, which gives to the Censitaire the entire property of the dominium utile {domaine utile) ; therefore, all such reservutioDS ore null, and cannot give rise to any indemnity ; 3. The samu thing must be said of marketable timber ; 4. The same with regard to the reservation of all mii.ea, quarries, sand, stone and other materials of the like kind, except the reservation of mines in favor of the King or Suzerain, according to the conditions set forth in the original grants of seigniories in\Jiet's ; 5. Tlie ST me with regard to the reservation of all rivers, rivulets and streams, for »il kinds of mills, works and manufactures, unless the soil as well ai the waters have been reserved ; G The Seignior could not legally reserve the right of diverting and directing, at his will, the course of streams, and of cutting canals through the farms for that pur- pi).«e, except for the use of seigniorial mills, (moulins banaux), and, in every such «iMO, he Wiis oblige i to indemnify the Gcnsitairr.s ; 7. The leservation of the right of taking the land requisite for the building of any kind of mills or manufactures, with or with )ut indemnity, is null and illegal, being contrary to the principle of the feudal contract which imports an alienation entire, »n1 for ever, of the dominium utile (domaine utile) ; 8. The same must be said of the re?orvation of the indemnity for the value of the lands of the Censitaires required for the construction of railroads ; 9. The payment of the cens et rentes and other seigniorial dues, should be made at the seigniorial manor, or, at all events, within the limits of the seigniory, and not elsewhere ; 10 The reservation of the right of fishing and hunting on the lands conceded, is illegal and null, as having a tendency to deprive the Censitaire of a jnirtofthe dominium utile (domaine utile) ; Non (if the reservations declared null and illegal in the above enumeration, give to the Seigniors a right to be indemnified for the suppression of them, in virtue of '• the Seigniorial Act of 1954." 40. It mu.'it be held, that all the reservations, stipulated in the deeds of concession, spurt from those set forth in the original grants of the Jiff, or recognized by common law, or those sanctioned by usage, such as the reservation of timber for the building of the manor-home, mills and churches, are null and illegal. 41. Prohibitions of the following kind stipulated for the advantage of the Seignior, viz; 1. A prohibiti k i i ..- n 66 g >Tii,d to s:iy : " There is not a iiiaxiiri of tln^ eoni- •' man law more cert, (in, than that a cdniiiu'red peojjh-, •' retain their ancient ciisforns, till the c()n<|ueror shall " (l(!clare new laws. To chani,'e at once the laws and nian- "■ ners of a settled Country, must !)<> attended with hardshiji ''and violence. And therefore, wise coiK^ierors, having • |)rt)vided for the se('iirity of their dominions, pnxMMul •• gently, and indtdf,'e their con(iuered snhjects in all local " castoms, which are in their nature indilferent, and which •' have been received as rides of property, or have obtained '' lh(! force of laws. It is more material that the policy " should be favored in Canada, because it is a ^'reat and •'ancient Coh)ny, long setlled, and much cultivated by " French subjects who now inhabit it to the niunber of "eighty or one hundred thousand." Messrs. York and l)e Grey spoke to the sauK^ purport, so ilid also all the eminent men of that day in England, w lio hid any regard for their own character. It is hardly necessary for mo to remark that, sinc^e the Proclamation of 17G3 could not and ought not, in any case, to have caused the result which is attributed to it, in regard even lo a con(iuered Country and with iiiuch less reason, <'ould it do so in regard to ont; whi(,'h had only been ceded. I must now stoj), it was not my intention to discuss lh\i* question ; nothing more should be said about it ; I merely intended to say a word in passing. In order to avoid repetitions, I will refer thot^c jjersons who are curious about the matter, to vol. 2 of the Decisions of the Tribunals of Canada, p. 405 and svq. ; tl:crc it w'U IK k0\ \ .. " .Jfl' r*" ■T':i,rr-f 53 3 , ( * * 58 g he seen that I treated the subject, at length, in the memo* rable case of Stuart vs. Borrowman. Moreover, it appoar* to me that the consideration of this question, is a ma\ter ol very slight importance here, since even the men who at- tribute to the Proclamation of 1763, intentions which the King of England never had, and results which it never could have produced, acknowledge, or I should rather say, arc of opinion that the Act of 1774, reestablished the old law* of the Country. I have alluded to the subject, merely from the fear that if I did not, my silence would be looked upon as if I assented to what I consider as a serious leeal and <-onstitutional heresy. I am not aware that it is very necessary to speak of \hv two Imperial Acts, I mean the "Canada Trade Act" 3 Geo. 4, cap. 19, and the "Tenures Act, 6 Geo. 4 ; according to my opinion, the questions which have been brought up before us, are not affected by them. All that we could possibly infer from these statutes, is that it wa-" thought necessary in England as well as in Canada, to le- gislate upon the Seigniorial tenure. Moreover rny ideas and opinions upon any intervention of this nature, are quifi- settled. The Act of 1774, "Quebec Act," is formal and deoi- 8i\c. It \fi oiily necessary to read the end of that section ; it is only susceptible of one interpretation. The Imperial Parliament does not reserve the right of changing or mo- difying the laws which it guarantees ; on the contrary, tliosif laws are to be the rule, " the principles, on which all mat- " ters in dispute, relative to the property and social rightv* " of the Canadian subjects, shall be decided, till such time *' as they (laws and Customs of Canada) shall be changed or " altered by Ordinances which may be passed here- " after, in the said Province by the Governor, Lieutenani- " Governor or Commandant in Chief, by and walh the con- *' sent and advice of Legislative Council, which will bv " established there as mentioned in that Act." Without, in the least, commencing to discuss the qnet*- tion about the Sovereign powers of the Imperial Parliament 59 g in relation to the Colonics, and to every tliinq coneorning ihein, upon which I have my own opinion, it appears quite evident to me, that if the Imperial Parliament possesses the unlimited power attributed to it, it might, in 1774, just a? well have delegated its power, to legislate upon our laws, to the Colonial Legislature, rather than keep the power in its own hands and exercise it itself. Those persons who imai,'ine that the power of the Imperial Parliament is un- limited, would have some reason for denying that the Act of 1774 has the eflt'ct wdiich I attribute to it, if the Imperial Parliament had been satisfied with deciding that the laws of the Country would be the rule and principle upon which all disputes relating to property and to the social rights of the Canadian subjects, should be decided. But how can such a pretension be maintained, in the face of the solemn and decided declarations of the Imperial Parliament, that matters should remain in that state, until such time as those laws should be altered by the Legislature of the Country. It is an absolute and formal renunciation, and a delegation of its authority to the Colonial Legislature, so far as a cer- tain particular object is concerned. Mere good sense makes us understand in an instant that such was the intention. What kind of guarantee would the Canadian subjects have had for the maintenance and pre- servation of their properties and possessions, and of their " laws, usages and customs and all their other rights as citizens, &c.," if that power which agreed to maintain tl em, could at will and at any moment reduce that Act to a dead law ? P'or that reason I am of opinion that the Canada Trade Act and the Tenure's Act, so far as they relate to the pre- sent question, could not, and cannot at present, have the effect which some persons attribute to them. It is not out of place to call your attention to the contrast presented by the Imperial Act of 1774, when compared with the Edit de creation of the Superior Council of Quebec, m 1653. The first was the act of a constitutional govern- l ■#■ W 1 4 .'I ■\ \' ■'-•,i'i. ■■M ■tl; ■:: . .I'd'i till I', -.-I! if ■" )!! ii iV .vij; $ .!. ," ij'. -1 00 g mcnt which guaranlecd us our laws and formally acknow- ledged the existence of tiiem ; tlie latter was the act of an absolute government \\ hich, not only subjected the Superior Council of Quebec to the laws and Ordinances of the Kirii^. dom, but reserved also to itself the sole right of uiaking alterations in them. From these obs(^rvations, it appears quite natural and ron- sDuable that we should consider that those two Statutes have nothing to do with the (juestion with which we have at- tempted to connect them. I will now sum up. The feudal system, as it existed in France under llio (control of the Custom of Paris, has been considerably ino- ditied in New France, and the Seignior, from the frcedoin he possessed in France, relative to his right of gr:uiling and alienating huids, has come in New France under tin- con- trol of a legislative power which was bound down by the particular circumstances under which an immense Country was placed, and where colonization was the great aim of the Crown of France. The intentions of the King became o!)ligatory, so far as concessions were concerned, in liir same manner as a settled and low rate was one of the most proper means to attain the end in view. It is therefore not in the least astonishing that we siiould find that rule record- ed in the laws of that time, and imbued all through with the force of custom, that rule which becomes a general one without however being universal, for the very reason that d number of Seigniors had the unheard of pretention of making' rights for themselves, in the same manner as, at a later period, they established privileges commensurate with the extent of their violation of tlu; laws. The important period of the legislation of Marly decided a question of great ini- j)ortance. Those Arrets, being the expression of that legis- lation, are, as they should necessarily be, laws of public order, both characteristically and essentially, and with regard to the means of carrying them into execution, having, at all times, in view the great project of colonising New 61 o- France. The result is a serious matter in itself and is of ffreat practical importance. The advancement of the Country depended upon their observance, and a contrary efTect was to be expected from their violation. For that reason it is not astonishing that no person was allowed to depart from them by any private agreements. It is not sufficient for a Country to possess laws, it must have such a judicial orga- nization as will enforce the execution of those laws in such a manner as will guarantee the attainment of the object they have in view. We find therefore, both under the old and new domination, that machinery indispensable to great works, the wounderful ensemble of which would, without doubt, have worked well if the Seigniors had not thrown obstacles into the way of the well working of that machinery, which had been so judiciously set in motion by men whose talents equalled at least the narrow minded spirit of criti- cism of those who did not understand them. Although tlie action of the Tribunals was frequently impeded, it is a manifest fact, which contradicts, in a formal manner, the pretension of those who were desirous of obliterating the most important part of the ancient law of the Country, by trying to stamp it with desuetude. And certainly that is a most singular kind of desuetude which could be established by means of the continuance of action on the part of the Tribunals, before the cession, and for a short period during the existence of the military Tribunals. That desuetude was in the least quite as strange, which they were desirous should result from the fact tliat those unabrogated laws were laws no more, because wc do not find that those in- fractions of the laws were punished at every moment ; thus establishing the maxim, that it is necessary to multiply the violation of the law, in order the better to establish tts ex- istence. I think, in my humble opinion, that I have deter- minea ihe interesting and important question relative to the waters, both navigable and unnavigable and non floatable, in the only manner which it appears to m?, is consonant ^ith truth. The contrary opinion is, to my mind, a manif«»t J. : f'' -m I i ■,« m 5 ,1 -v-'"^ i\ ■'■■''( 'ii^- '■ ■-■ ■.'■»:, ii 1 , 'mi' i ■,i \ ^kx^. ■ f. .I-I- i.1 t ' '..' M. /li'i '*'■ 6 u- error which ha» nothing, (I will not say,) to justify it, but which it could offer as a pretence, except the feudal system such as encroachments and the opinions of superannuated feudists could produce, when they dreamt of a promised land for tlie Seigniors. The right of banality is a system quite peculiar to the Country. It never was introduced into New France, it was established there. It appears to me that, from the confusion of these two ideas, has arisen the error which I have tried to guard against, in relation to its consequences in this Country. According to my opinion, both the reservations and pretentions of the Seigniors re- lative to waters, should suffer the same fate. They are en- croachments which must, in great part, be done away with. Although I do not rely upon the declarations of Mr. Hoc- quart, in whose favor we are desirous of admitting that, in that respect, he had an intimate knowledge of the King's intentions, without however giving him the same credit, in declarations which he makes elsewhere, about other mat- ters ; nevertheless I shall cite the Arret issued by him, pro- hibiting the imposition of corvees. In the midst of the dis- puted claims of the Censitaires and the Seigniors, appear certain rights which are sacred for botli of them, and I there- fore acknowledge them. I grant them to the Seignior? ; the Censitaires are bound to pay the Seigniors those which are mentioned below according to the valuation to be mado pursuant to law. They are : The cens et rentes^ the lods ct ventes, the right of banality such as established in this Country, provided that it lias been stipulated. " These are the rights, dues and reservations which should " be valued, in order to ascertain the full amount at which " the seigniorial rights should be redeemed as required by " the Seigniorial Act." I differ most materially from the majority of the Court upon several important points. Sometimes I stand alone, at other times my name is inscribed with those of several ;i. ii '( ■■■ 63 !»• 'I; t o my opinion, other members of ihis Court ; sometimes also I agreed in opinion with the whole Tribunal ; finally I will be seen voting in favor of the first part of an answer, when I do not compromise my opinions, and voting against the second part of it, not because it may be altogether erroneous, but because at the same time that it asserts a truth, it sanctions an error. I do not agree witli the 2nd paragraph of the answer to the 41st question of the Attorney General where mention is made of a droit principal, which I reject, although I am of o])inion that the suppression of the prohi- bitions mentioned in it, not only renders all claims on the part of the Seigniors in tliat belialf, illusory, but also that they had no such right whatever. All those votes are given from profound conviction, and from a principle quite as sacred for a Judge as for every other man, I mean the right and duty of always acting according to one's convictions and never against them. . .^ ;r -y.^y :\h !■■', i .l. -I . ■?''■■' J--> ■ ■ gniovs, appear the Seigniors ; *s those which Lon to be mado ht of banality ed that it has 3 which should lount at which as required bj ■\''l '4. ■:-l Jj- :f ■;: (If f |:;| ■ !f^^^! rt I ^' I! ^ 61^ France. The result is a serious matter in itself and is of «,'rcat practical importance. The advancement of the Country depended upon their observance, and a contrary effect was to be expected from their violation. For that reason it is not astonishing that no person was allowed to depart from ihcm by any private agreements. It is not sufficient for a Country to possess laws, it must have such a judicial orga- nization as will enforce the execution of those laws in such a manner as will guarantee the attainment of the object they have in view. Wo find therefore, both under th^ old and new domination, that machinery indispensable to greai works, the wounderful ensemble of which would, without doubt, have worked well if the Seigniors had not thrown obstacles into the way of the well working of that machinery, which had been so judiciously set in motion by men whose talents equalled at least the narrow minded spirit of criti- cism of those who did not understand them. Although the action of the Tribunals was frequently impeded, it is a manifest fact, which contradicts, in a formal manner, the pretension of those who were desirous of obliterating the most important part of the ancient law of the Country, by trying to stamp it with desuetude. And certainly that is a most singular kind of desuetude which could be established by means of the continuance of action on the part of the Tribunals, before the cession, and for a short period during the existence of the military Tribunals. That desuetude was in the least quite as strange, which they were desirous should result from the fact that those unabrogated laws were laws no more, because we do not find that those in- fractions of the laws were punished at every moment ; thus establishing the maxim, that it is necessary to multiply the violation of the law, in order the better to establish Its ex- istence. I think, in my humble opinion, that I have deter- mined the interesting and important question relative to the waters, both navigable and unnavigable and non floatable, in the only manner which it appears to me, is consonant with truth. The contrary opinion is, to my mind, a manifest ■} 'it-: ■11 :^ , ^■''•■'■\ .,....■ -iil m.'^ J' -s.'t' 7^: 'i\V'' I ^^' i i f • ■ A It (' li 'si «; •I ^ 1} I* f IS I ,1 62 o error which hag nothing, (1 will not say,) to justify it, but which it could ofl'er as a pretence, except the feudal system such as encroachments and the opinions of superannuated feudists could produce, when tlicy dreamt of a promised land for the Seigniors. Tiie right of banality is a system quite peculiar to the Country. It never was introduced into New France, it was established there. It appears to me that, from the confusion of these two ideas, has arisen the error which I have tried to guard against, in relation to its consequences in this Country. According to my oj)inion, both the reservations and pretentions of the Seigniors re- lative to waters, should suffer the same fate. They arc en- croachments which must, in great part, be done away with. Although I do not rely upon the declaralions of Mr. Hoc- quart, in whose favor we are desirous of admitting that, in that respect, he had an intimate knowledge of the King's intentions, without however giving him the same credit, in declarations which he makes elsewhere, about other mat- ters ; nevertheless I shall cite the Arr^t issued by liim, pro- hibiting the imposition of corvees. In the midst of the dis- puted claims of the Censitaircs and the Seigniors, appear certain rights which are sacred for both of them, and I there- fore acknowledge them. I grant them to the Seigniors ; the Censitaircs are bound to pay the Seigniors those which are mentioned below according to the valuation to be made pursuant to law. They are : The cem et rentes^ the lods et vcntes, the right of banality such as established in this Country, provided that it has been stipulated. " These are the rights, dues and reservations which shoukl " be valued, in order to ascertain the full amount at wiiieh " the seigniorial rights should be redeemed as required b) " the Seigniorial Act." I differ most materially from the majority of the Court upon several important points. Sometimes I stand alone, at other tirae.s my name is inscribed with those of several I. L 63 a other jiieinbern* of this Court ; sonic lime ti idno 1 agreed in opinion with the whole Tribunal ; linally I will be seen votincf in favor of the first part of an answer, when I do not conii)roniise my opinions, and voting against the scv. d part of it, not because it may be altogether erroneous, but because at the same time that it asserts a truth, it sanctions an error. I do not agree with the 2nd paragraph of the answer to the 41st question of the Attorney General where mention is made of a droit principal, which I reject, although I am of opinion that the suppression of the prohi- bitions mentioned in it, not only renders all claims on the part of the Seigniors in that behalf, illusory, but also that they had no such right whatever. All those votes are given from profound conviction, and from a principle quite as sacred for a Judge as for every other man, I mean the right and duty of always acting according to one's conviction?^ and never against them. > r-:H'» I;- '■. ■■':■'•■ ';^ ■) /«:,.'■ 2,:, ■'.•■r^r:.' |l';t . ' ■•■ic 'fii''' 1 -■ rM ■T^^'fT' ?w al (t 0! Ih P 1 iM 1 IV OK TUB HOAORABLE JUDGE iirEUEDlTU. PART I. CENS ET RENTES. Sectioiv 1. PJi^hts of Seii^niors under the Custom of Paris, as to the I'oncession of their lands. The learned Counsel, in their able and elaborate arqu- inentsi, have treated the important subject which now en- 1,'a^es our attention, under four distinct heads : 1st. The annual rents, ecus et rentes, payable to Seigniors ; 2d. The nature and extent of the right of banalite ; 3d. The rights of Seigniors in the rivers watering their seigniories ; 4th. The reservations and prohibitions stipulated in the contracts of concession between the Seigniors and the Censi- laircs. In the remarks which I am about to make, I shall adopt 'his division of the subject, which appears natural and con- venient, slightly altering however the order from that given above, so as to make my observations on the fourth head (the reservations and prohibitions) follow immediately those on the first — the cens et rentes ; as it appears to me that the 'luestions, under both these heads, must be determined by a rtii'erence to the same principles and rules of law. ■ ! .'(■'♦■ ' S '• ' I , > v.; ■■ ii". J^if*fet- w ■ 4 2h Acrordini,' to lliis division time that law w^as introduced into Canada ; and then consider how far the question is allected by subsequent legislation for the Colony, or by the tithes under which the Seignior? hold their fiefs. Sometime was allowed to elaj)se after the first settlement of the Country, without any express provision having been made, to determine what portion of the laws of France should be observed in this Colony ; but such a provision was plainly necessary ; for France was then divided into the pays dc droit ccrit^ in which the Roman law generally obtained, and the pays de droit coutuinier, in the dillerent parts of which about GO general, and 300 special or local Customs, had force of law. (2) (1) Question of Attorney General, no. 25. (2) Repertoire de Guyot, vol. 5, p M5. On compte environ 60 Coutiimc? gene- ral«s dans lo R'tyaumo, c'est-il-dlro, qui sont observeos dans uno province ontiorc, et environ 300 Coutumes locales qui no sont observces que dans uno soule ville, bourg, ou village. i II 3A JUIO Villo, ^OViTg, Hy llm edict of IGOiJ, csfablisliin^' lln; f ' ,i il Siipcrirury iliul Court was rt'(inire and orditian(!ei oj" France, and to proceed as nearly as possible according to till- practice; of the Pdrlement dc Paris. Furllier provi- -^jon on this sul)jc(;t however was rcupiired ; for the f,'eneral laws and ordinances of Franc(>, did not rcfjfulate the tenure .»f land, and wen; silent on a variety of other subjects, in rcl aion to which it was nec('ssary that the Colony should liiive some certain rules of law. Wo find accord! nii^ly that the Kdict, establishinf» the West India Company, bearini^ date the followinj,' year, in art. 33, declares that " the Judi:f(>s appointed in the said " places (Canada bein<>[ one of them) will be held to give " Jiidi^mcnt accordini^ to the laws and ordinances of th<' *' realm ; and tlu; oflicers of Justice bound to follow and to " comply with the Custom of Paris ; according to which, "the inhal)ilants shall enter into contracts, without it«* " being lawful to introduce any other Custom in order to " ensure uniformity." Some persons hold that llie Custom of Paris bee ime of necessity the law of the Colony as soon as the coi ntry was settled by subjects of the French Crown. But this s not cer- tain. On the contrary, according to the President IJouhier, (1) (iuyot, and many other Jurists, that Custom had no ^rreater authority, than any other beyond the territory for which it was specially framed. (2) We find, as a matter of fact, however, that a number of the grants, made even before 1G63, refer expressly to the Custom of Paris as the law by which the Colony was to be governed ; (3) while a few refer to the Custom of the Vexin (1) l^ouhiar, vol. 1, p. 373, Coutuma do Bourgogno. (2) Repertoire de (Suyot, vol. 5, p. lio, spoaldng of the CiLiitoni of Paris. " Elle "n'a pa.s plus d'autoritd quo los autrea hor.s do son twrritoiro." But soo Ferriore, Diet, do droit, vol. 1, p. 590, and Coutumo do Bari.^, 1 vol. pp. 19 and 21, folio edition. (3) Seo the grants nos. 15, 17, 19, 20, 21, 22, 23, 25, 27, 29 in Mr. Dunkin's abstract— Tho usual words are as follows, or to the following effect : '' Le tout sui- " rant et conforinoment a la Coutume do la Prevoto ot Vicotuto do Paris, que la com- '■ piignio cntond etro observoo ot gardeo par touto la Nouvella-Franoo.'' See al,. equij)i)etl and ready for sea, \vliic!i the Company mciv lo vicinal and to man with such conmianders, soldiriN and sailors as they might think fit ; the said vessels to hr kept in order l)y the Company and to be employed lor tlicir beneiit and advantage ; and in the event of their dclcrioni- tion from any cause whatsoever (save and except the vt-ssi'ls being taken in open warfare by His ]\Iaj( sty's enemies), the Company were obliged to substitute otl ers in their jjhice : such other vessels to be kept in a fit and })roper state i'or the advantage of the Company. It is thought by some of the learned Judges, that under this charter, the Company were obliged to concede the wihl land of Canada to any French subject wishing to >c'Ule lliere ; but in this o})inion, I am unable to concur. Had il been intended to subject the Company to such an obligalion. il would obviously have been necessary to make some pro- vision as to till terms upon which ihey might be conii)i'lled to make concessions of land ; whereas nothing of the kind was done. If the power of determining the terms had been left to the Company, the suj^posed obligation in favour of the ])ublic, could not have been enforced ; and if tliat power had been given to the King, there would, in ellecl, have been no grant to the Company. The terms of the act liowever, according to my views, negative in the plainest manner the existence of any such obligation. The grant is made upcrpeluite auxdits cent associes, Iciirx hoirs ct aijans cause, en toxte propriele, justice et seignciirie : the only limitation, in relation to these land, being Ju the words po?ir jonir toutefoh des dites mines confornicnient u Vordonnance. The Company it is true undertook to convey to the Co- lony 4000 persons, and to provide them with " board and , ill. danl general dp oncur. llud it t associes, Icun 11 h " lo(l,i,nrig and all lliings generally, wliieh may be necesnary " to life, (luring tjiree years, aft(!r which period the said as- " sociates will be diseiiarged, if they so desire it, from the ''obligation of providing for liiem, (the j)ersons so to b« "conveyed to the Colony) by giving them a si/l/icicnlqtnin- '• till/ of cleared land to enable them to support themselves," iir to provide for them otherwise in such way, that they !riii,dit by their labour and industry, subsist in the said Country and support themselves. But assuredly from this qualified obligation to grant (hd red land to 4000 persons, we cannot infer an obligation to grant uncleared land to all their fellow subjects. The onl\ other words in the act, referring directly to the sub2;ranting of land by the Company, are those to be found in tiie lifih section already quoted; but I cannot comprehend how the clause, " it will be lawful for the said associates " to improve and ameliorate the said lands as Ihcy may " ckem it necessary and destribute the same to those who " will inhabit the said country and to others in suck quan- '• lilies and in such manner eis they ivill think ])roper ", can. be converted into an obligation, to grant land in such qudiitities or in such manner as any person or persons^ other than the Company, might think proper. There can be no doubt that the King desired, as the pre- amble to the act dcselare*;, to establish a jjowerful Colony in ills north American dominions ; but we must recollect, that the Colony was to be founded, mainly by the exertions and witli the means of the Company ; and we must therefore consider, not merely, what were the intentions or wishes of tlie King as one of the contracting parties, but, what w^ere the terms and conditions agreed uj)on by both parties ; and we have no right in looking for those terms or conditions to go beyond the charter ; which was prepared evidently with much ability and care, and wdiich is very explicit as to the nature and extent of the rights and obligations of the Com- panv. 12 /i It: is liowevcr coritciKled, that, although the charter doe. not in express terms contain an ol)iii,^•ltiqn to siih-concidf. yet such an obligation must necessarily be inferred lioiii the nature of the grant. For my part I must say, that I cannot see in tlie facts, anything to warrant such an inference. I find thai four years after the grant of Canada to the Company of hi NoKvrllc France^ Charles the first of England granted the province of Maine to Sir Ferdinando (Sleorges ; that seven years afterwards he granted Maryland to Lord lialliinoic. and that Charles the 2nd in his time granted Pennsylvaniix to the celebrated Wm. Penn ; and yet notwithstandiiiif the vast ext(,'nt of the territory thus granted, it never, so far a- 1 am aware, has been supposed that the grantees could U compelled to alienate any portion of the land graaled to them. Story ai p. llOof the first vol. of his Commentaries on the constitution of the United States, says : " that the charter con; " titiited Penn the true and absolute proprietary of the Ter- " ritory thus described." And at the next page lie says: " Penn immediately invited emigration to his j)rovinee by " holding out concessions of a very liberal nature to all " settlers." Thus admitting as a matter of course, that Penn could hold out such concessions as he thougiit lit. The mode in which these and many other like grant!;, were made by English Sovereigns, and colonies esta- blished under them at least in some cases (1), show's that li new country can be settled, without subjecting th(; pro jjrietaries, as they were then termed, to an obligation to make subgrants. The fact that Canada was given en fief does not make in this respect any difference : for a grantee en fief^ by ''"-' common law, is not under any greater obligation to alienate ( 1) Story, same vol. p. 94. 11 II 13 h uiV porlion of his property, than a granico in free and omnion ssoccage. Upon the whole liien, I am of opinion that the obligation !(i siib-c;onc'cde, which C(n1ainly was not imposed upon the {'onii)any by the cxprej^s terms of their grant, and which is It vmiiince, with tiie wlu)h,' spirit of the feudal tenure, can- not, ;is has been contended, be inferred from the nature of iliat grant, or from the circumstances under whicli it was made. The King of France probably felt satisfied, that the in- .evests of tlie state, and tliose of the Company, in this res- pect were identical. If experience hid shown this not to bo the case, the King for tlie pul)lic good, by his legislative power, could have deprive the Company of the whole, or of ^piut of the land granted to them ; not rightfully however vithout giving them a reasonable indemnity. SECTfOiV 3. Hii^niorial grants hij the Company of la Nouvelle France. From 1623, tmtil 1G63, excepting for a short time, after the taking of Quebec by the English, in 1G29, C.mada re- mained in possession of the Company of la Nouvelle France. During the existence of that Company, they made about 'wcnty eight extensive seigniorial grants (1) in Canada ; to each of which I shall now advert, in so far, and in so tar only, as they relate to the clearing or sub-conceding of '!ie land granted. I confine myself to the conditions bearing on these points^ because it is only in so far as the Seigniors were subject to 'iie obligation of sub-conceding their lands, that it is con- ll) The Company also granted several small lot.s of land cnjief, but those from 'luir size, did not admit of sub-concessions being made in thorn, for agricultural purposes. It is therefore needless to refer particularly to the conditions contained in ^ws8 grnntg. See no. 40, Mr. Dunkin's aUstract, 40 or 50, arp. granted en Jitf. ■^O' 44, ','0) arpgns en finf—i5, 10 arp. en fief. M h ton(?od, or cnn be cdnlondcd that tholr rit,'ht of properly ;i< Seigniors was liinilccl. Tlu; 13lli legal proposition suljiniitcd to our eonsidenitioii l)y tlie Crown Ollieers is in tin lollow- ing terms : " Tlie ancient, laws of lli(> Country ohlii^n' ili^ " proprietors of firfa and seigniories in Canada to comcciI,. '' their lands a litre dc rcdcvaiicvs, wiien thereunto reciuind^ " and their right of property in those lands was limited anil " restricted by su(:h obligation to concede." The right df property in tin; Seigniors is here distinctly and riglitiv ad- mitted, and the limitation or restriction contended for, is that (mly which results from the supposed obligation to con- cede. No one who has read the titles luidf^r wliieh \\\v fi(j$ in Canada have been granted, can hesitate to a(hnif (iftlic obligation to sub-concede be left out of the (piestion) ilnit the owners of them, have as li'gh and as extensive esiates in those^Vyi", as it is possible for Seigniors to have in tlnir fiefs under the Custom of Paris. The most zealous advocates of the interests of the Cnm- taires, do not contend that there is any thing in the naliirc of a trust or agency, in the estate which Seigniors have in that {)art of the lands which they clear themselves, iinr in the domaine direct which they retain in tiic lands wliirh they concede. The su|)posed trust is confined to tlie vincon- ceded land, and is founded on the obligation to concedf ilie $ame. I therefore deem it unnecessary to dwell upo.i ihc portions of those titles which convey a right of properly tn the Seigniors. That right is not, cannot be denied ; all that is contended for, against the Seigniors is, that tlii* right of ownership was limited as regards uncleared land, by an obligation to concede it. What I now wish to show is, that the obligation in question was not established prior to the arret of 1711. In adverting to each of the titles for the sake of facility of reference, I shall speak of each Jief under the number, and by the name given to it in Mr. Dunkin's abstract ; which I have found most useful. Indeed w^ithout some such 15 A york', as the tillos liav(> not hem priiilcd iiccordinir to tlic irdcr of their diilcs, it would hv. iiii|)(»ssil)lt^ to I'oriii an i.xiict idea, as to the conditions of tlio grants, at any par- ticular period ; or as to the diamine that took ))l;if'(', in those fondiiions, accordinij as the settlement of tlu; Coiuitry ad- vanced. Fellowini^ then the numbers given in Mr. Dunkin's ab- stract, we find that two of the printed grants were made b*-- fare the Charter of 1GJ8 to the Company of New France, which has already engaged our attention. Grant from the Duke of V^entadonr, Viee-roy of New-P'ranee* to Louis Hebert. No. 1.— 28 February 182fi.— This deed in the recital self* forth that the grantee, Louis Ilebert, was tlu; head of the first French family settled in Canada, that he iiad established hini- sell' un certain lands " near the Great River St. Lawrence " alilic " place called Quebec ;''' that ho had " by his labour '• and iixlustry assistetl by his domestic servants " cleared u nfvtain portion of said lands, enclosed the same and built a house thereon, &.C., of all which he had obtained from the Didcc de Montmorency the previous Vice-roy "■ the gift and grant " in perpetuity by Letters patent dated the Ith Feb. 1G23." The deed then, for the above " stated considerations, and '' in order to encourage those who might thereafter desire to " people and inhabit the said Country of Canada ", ratifies the grant which had been so made to the said Ilebert, " to " have and to hold the same . \fief noble unto him, his heirs " and assigns for ever as his oion lawfully acquired properti/^ " and dispose thereof fully and peaceably, as he may think " proper, the whole depending on the Fort and Castle of '' Quebec, subject to the charges and conditions which sliall " hereafter be imposed by us." The same deed contains in favour of the same grantee, his successors, heirs and assigns, " a grant of the Fief St. Joseph >l '. if . t 16 A '>r Kpinay " to possess, clear, cullivato and inhabit the sam^- '"'• as lu! tiiay deorn fit on tlie same (conditions as the lirsi di*. ■•' nation." Xo. 2. — 10 Mantli 1G2(), is a ^rant by the same Vicc-rov U) the Itcv. Jesuit Fathers, " as ii perpetual and irrcvocahle "donation" of the seif,Miiory of Notre-Danie des Ani^'CM— '' it beinj? our will that they peaceably enjoy all the wtii.ds. " lakes, ponds, rivers, rivulets, &c., &c., which lu.iy be " Ibnnd within the limits ol' the said lands, on which ihfv '■'■ shall have tiie right of erect ini,', if lliey think (it, an hahita- '•' tion, dwellinif novic-iate or seminary for themselves, and '^ to educate; and instruct the children of the Savages." This grant contains no furdicr conditions as to selllemenl, and does not citlu^r directly or indirectly rtdcr to any obligiiiion to sub-concede. We now come to the fu'st grant made by the Company (d fa Nouvdlc France. No. 3. — 15 January 1G34, Beauport. — This deed of eou- eession recites the willingnt^ss of tht? Company to dislrihiitc the land of the Company to men " a])le to have them (dear'd and cultivated " ; — but does not contain any slipulalion as lo the clearing or sub-infeudation of the land by the grantee. It does liowev(!r contain a clause to the following eli'eet: '' That the land should be held subject to fealty and homage. "•which the grantee should render by one full homage at '' each mutation of possession of the said land, with a piece '' of gold weighing one ounce, and one years revenue of "• what the grantee shall have reserved to himself, after he " shall have granted en fief ox a cens et rentes the whole or '•'• part of the said land." The learned Counsel for the Crown, drew our attiMilion particularly to this clause, which is also to be found in a few of the subsequent grants ; but I must say it does not appear to me to have much bearing upon the present eon- I' n 17 A trovcrsy. It iibolislics \\u\ droit dc quint^ and modi I'u^s ilu* droit tic r('/if'/\ ill relation to the firf's fo which it applies ; hut it cannot Ix; rL'i,'ar(lc(l as compelling,' the ;^M-antecs to snb- inl't'ii(lat(! the land m'ranled t(> I hem, and indeed has no ten- dency in that direction. The clanse in (|uesti()n doid)tless eonlcm|)lates the proha- bilily ol" sub-concessions bein^' made ; but this assuredly iiU'urds no proof of a lei^al obli^'ation to make such sub-con- cessions. The only other stipulation in the grant no. 3 of IJciUiport, huvin<( any direct bearing upon the improvement of the land granted, is the following: "That the men, " whom the said Gilfard or his successors, shall send to \ew- " France, shall serve to the discharge of the Company in di- ''luimition of the number which it is obliged to send to " that Country, and, to that end, he shall deliver each year a " list of them at the olliee of the Company." \(). I, — IG february 1G31, the next grant, is one of GOO arpens, near Thre(>-lli\ers, to the Jesuits, &c. It contains these words : "to cultivate and erect the necessary build- " ings on which (said craet of land) the said Rev. Fathers " shall send such persons as they may choose ; — and when " the said Rev. Fathers send persons to cultivate the said " lands, they shall every year transuut a list of them to the " oflice of our said Company, so that it may be assiu-ed " thereof, and so far discharged, they being deducted from " the number of those whom it is obliged to send over, &c." Grant no. 5, of Lauzon ; no. G, Bcaupre ; no. 7, Isle Orleans ; no. 8, confirmation of grant of Notre-Dame des Anges ; contain clauses to the same efl'ect as to the men to be taken out by the grantees. (1) Xo. 10, part of Grondincs, a grant to the Duciiess d'Ai giiillon for the H6tel-Uicu, near Quebec, contains a like obligation. (2) (1) No. 9 is a grant of 12 arpons, site of Jesuits' eollego. ('«) Xo. 1 1 not printed. iMA 18^ No. 12, part of Dautrc, The mode in wliich the obli- gation to furnish the list of men is worded in this i^naut, shows the importance the Company attached to it. " And ihe " sieur Bom-don and his successors — as well as others to " whom grants have been made, shall be held to hand, in " every year, to the secretary of the Company, a list of ihc " men whom they shall send over to New France, so that the " Company may know by how many the Colony shall have " been augmented." No. 14, Dcschambault.— " And the said Chavigny (grantee) " shall send at least four working men, quatre homines dc tra- " vail, to commence the clearing, besides his wife and ser- " vant maid, and that, by the first ships which will sail from " Diepi)e or la Rochelle, together with goods and provision? " for their support during three years." No. 24 is another grant to the same person on the same conditions. List of men to be delivered each year. No. 15, a portion of the Island of Montreal and St. Sulpice. Grantees prohibited from conceding lands to persons already in Colony.— Grants to be made to those only who may b( willing to go there for the express purpose of settling thereon so that the Colony may be so much the more extended ; ar in order to commence the settlement of the said granteci lands, the said grantees shall be held to send to New France a nvmbcr of men by the first shipment which the Company shall make, with the provisions necessary for their food, and shall continue from year to year, so that the said lands shall not remain uncultivated, and that the said Colony may be so much extended. List of men to be forwarded annually by secretary. No. IG is King's ratification, &c. No. 17, Riviere du Sud or St. Thomas,— contains no direct ulains no dkeci 19^ obligation to send men. In the preamble, the readiness of the Company to make grants to those " willing to under " take the cultivation of some portion of the lands granted " to our Company ", is set forth ; and the settlement of the lands granted is referred to indirectly thus ; neither the said (grantee), nor his successors, nor any other persons, who man go to the CoHntrij to inhabit and cultimte the lands hereinabove conceded^ shall have the right of trading for skins and furs with the Indians, is:c. No, 19, grant of part of Daatre ; nos. 20 and 25, St. Gabriel and St. Ignace; no. 21, Portneuf; no. 22, Repentigny, La- chenaie and l'Assom])tion ; no. 23, I3ecancour ; ;ire all made iiictlect on same condition as no. 17, that is to say, without any express obligation either to sub-concede or to clear ; the intention of settling on the land being however adverted to in the preamble, as an inducement to the grant ; and the duty of clearing the land being indirectly adverted to among the amditions of the deed, thus : " Neither the said (grantee), " his successors or assigns, nor any other persons who may " go to the Country to inhabit and cultivate the aforesaid '* lands, shall have the power to trade for skins, &c." No. 27. The grant of Vieux Pont (.j S(iuare leagues) is made in consideration of the " zeal (of the grantee) for the "extension of the Colony, he having already brought under •'cultivation several lands which we have herefoiore "granted to him," subject to feudal and seigniorial dues agrcal)ly to the Custom of Paris, — but without any other conditions. No. 28, Jacques Carlier, is, as to conditions, same as no. 27, Vieux Pont. No. 29, Sillery, confirmed by no. 30. is a grant to the •Jesuit Fathers for the benefit of certain converted Indians, and is made without any conditions as to settlement, &;c. ■I :. ; ll F 20 h No. 32 is also a grant to Jesuit Fathers, Notre-Danio dcs Angcs, &c., not subject to ;iny conditions as to scttlcnicnt. In tlie recital in the deed we iind these words : " Et de plus " que, par leurs constitutions, ilsne peuvent accepter aucune " fondation qui les oblige a autrcs charges, qu'a cellcs aux- " quellcs, en consequence de leur institut et de leurs voonx, " ils se tiennent volonlairement, et desquelles ils s'acquittent " si dignement, qu'il n'est pas juste de les y contraindro, ni " honneste de le stipuler d'eux." No. 33, Gaudarville. The grant mentions in the recital that the grantee " is desirous with time of settling in New-France, " and causing lands to be clcaied, improved and occupied " by as many families as possible, in order to fortify the " Country against those who might be disposed to make anv " attempt upon it." The grant however contains no condi- tion as to clearing or sub-conceding. . i No. 34 annuls the grants nos. 14 and 24 to Francjois de Chavigny, on the ground that he had left the Colony " and abandoned all that he possessed there" and regrants the lands on the conditions of the former grant to the wife of said Chavigny. No. 34 b is grant of St. Ignacc, -^ league by 10, to tlie Rev. Mercs Ilospilalicrcs de Quebec^ without any condition as to clearing or sub-conceding. No. 35, augmentation of grant no. 3 to Gifi'ard of Beau- port ; — no new conditions. No. 3G. Grant of Mille Vaches ; — no condition as to clearing or conceding. No. 37, augmentation of Gaudarville, — recites continual irruptions of the Iroquois, massacres of inhabitants, aban- donment of the place, &c., so that it runs the risk of being entirely lost on account of its not being within the reach of ETard of Beau- idition as to 21 h assistance, and its wanting the presence of some powerful person, who, with the aid of his friends, might withstand the efforts of those barbarians, by causing some place of refuge rechdt to be erected there, and judging that Louis de Lau- zon. Seignior of La Ciliere and Gaudarville might under- take the defence of the said post, &c. ; — grant made and on condition of fealty and payment of one year's revenue at each mutation ; — no condition expressed as to clearing or sub-conceding. No,38,Neuvilleor Pointc anxTrembles; no. 39, St. Etienne; No. 41, St. Pochdes Aunais. — No. condition as to clearing or snb-concer ii;g. Xo. 43, A. D. 1G5G, Point du Lac or Tonnancour. This grant is more explicit as to the settlement duties that are to be performed than any of those that precede it. The words are as follows, "the said (grantee) shall cause " the said lands to be inhabited throughout their extent, and " \ ': to be done thereon within four years from this date." Bu' w.;'de of fuliiiling tiiose obligations is left altogether to ti ' /etion of the grantee. No. 4G, part of Montreal, on same condition as former grant of part of same seigniory, viz : no. 15. This is the last of the grants en fief of any considerable extent, (1) made by the Company of la Nouvclle France; and it ap})ears to me sufficiently plain that they did not sub- ject the grantees to any obligation to sub-concede the land granted to them. Assuredly an obligation to sub-concede, is not expressed in any one of those grants ; and when we bear in mind that such an obligation was unknown under the Custom of Paris, which is referred to in many of the grants, as the rule by which they were to be governed ; it (1) After this date, by title no. 47, pertain small islands wore added l)y tlio Com- lony to the seic^niory of Becancour, and by no. -19, Jean ]5ourdon'.s-house and 60 Mpents of land wore erected into a./(>/'; but for the reasons already mentioned it is needless to refer to the oonditions of these titles. f '•■ 22 A seems manifest, that if that obligation had been contem- plated by the parlies, it would have been expressed : whereas not only is no sucli obligation contained in any ot the deeds ; but in some of them the power to alienate was expressly limited. (1) SECTION 4. Seigniorial grants by West India Company. Early, in the year 1663, Louis the fourteenth deter- mined to re-unite Canada to the Crown of France ; and the company of la Noiivclle France^ which was then far from being in a prosperous state, having become aware t)|'tlie King's intention, on the 21 febry. 1603, executed a deed of surrender, which WaS accepted by Ilis Majesty. In the following year, a charter was granted to the French West India Company; under the first article of which the Lee- ward islands, Canada, Acadia, Virginia, Florida, &c., is:c., were granted to the said Company " in full property and " seigniory with rights of juslice, &,c." The permanent proprietary rights of the Conijiany were, by subsecpient clauses, (2) limited to such lands as the Company should conquer, inhabit or cause to be inhabited, conqucrir et habitcr, during the period of forty years for v.hich they were to have, under their charter, the exclusive trade of the countries granted to them. There is nothing in this second charter which requires tlio new Company to sub-concede any j)ar< of the land granted to tliem, on the contrary, under the 23d clause, they could in this respect pursue wiiatever course they deemed best. That clause is as follows : " The said Company shall " have power to sell, or disjto,sc of the said land by way of (1) Seo titles 3, 12, 15. (2) Sec. 1!). of the charter of the French West India Company. Edits et Onloti nances, vol. 1, p. 45. 23 k " eiil'rofmcnt^ either in the said Islands or continent of Ame- " r/m, or elsewhere in the countries granted npon paymeni " of^ and for such ccnx el rentes, and otlier seigniorial riglits " as may be deemed proper^ and to such persons as the Com- " panij may deem fit." Having thus very briefly adverted to llie rights conferred on the West India Company, 1 now jjass to the conside- ration of the grants made after the date of the charter to that Company. — No. 49 is the first of those grants. — It is a grant lo the Jesuit fatliers, of a small tract ol land, and was made on same conditions as the grant no. 4, hereinbefore referred to. (1) No. 51, Sfe. Marie, is merely the promise of a grant, and was made " in order that the grantee might work the- reon unmediately." No. 52, Labadie — was made on condition tiiat the grantee shall cause work to be immediately performed thereon and render the same more valuable " — a la charge d'y faire tra- " vailler incessamment, et la mettre en valeur suivant ct •' conformement aux intentions du Roi." No. 53, Tonnancour : — " A la charge d'y faire Iravailler suivant les intentions du Roi." No. 54. By this grant which is direct from the Crown, Desilcts is erected into a Barony and three Royal Burghs are attached thereto. The grant recites, as the reason of the conferring of the dignity, that the grantee had cleared the property called Desilcts, and that the King was de- sirous to promote the settlement of New France by marks of honour where grants well cleared, &c. No, 55, D'orvilliers. — This is the first of a number of grants made about tjiis time to the ollicers of regiment of Edits et Ordou (1) This grant was mndo bofuro tho registration at Quobeo of tho charter in favour of West India Company. 24 h Carignan, which was disbanded in Canada on condition that tlie iiKMi should receive land and settle there. (1) The preamble is very full, and explains clearly llie in- tentions of the French authorities at that time and \$ therefore given at length. (2) " His Majesty having always sought with care and that " zeal whicli is suitable to his just title of eldest son of " the church, the means of making known in the most nn- " known countries by the propagation of tlie faith and diJi'u- " sion of the gospel, the glory of God and the christian name, " first and principal object of establishing the french " Colony in Canada, and acccssorily of making known to " the parts of the earth remotest from the intercourse Avith " civilized men, the greatness of his natne and the strength " of his arms, and having judged that there were no " surer means to that effect than to coiupose this colony " of persons properly qualified to fill it up, to ex- " tend it by their labour and application to agriculture and to " maintain it by a vigorous defence against the insults and " attacks to whicli it might bo exposed hereafter, has sent " to this Country a number of his faithful subjects, othcers " of his troops in the regiment of Carignan and others, mosit " of them, agreably to the great and pious designs of his Ma- " jesty, l)eing willing to connect tlicmsclves with the Country " by forming therein settlements and seigniories of an " extent proportioned to their means ; and the said, &c., &c., " having petitioned us to grant him a part thereof, we, &c., The conditions as to settlement are : " That the grantee " shall keep house and homo on his seigniory within one " year; and that he shall stipulate in the title deeds which " he siiall give to his tenants, tliat they shall be obliged " w'ithin one year to reside and keep house and home on M (1) Oarneau, toI. 1, p. 202. (2) A preamble in noariy tlie samo words 13 to bo found in sovoral of tho grints uia4o about this time. 25 k " tlic concessions wliicli lie shall have granted to them, and '' tluit, in del'aull thereof, lie shall re-enter /y/t'woyon?ocours, lUmouski, Liinoraio, (irando Allao des Monts, Sto. jAlari^uerito, Martiniiire, Vineclot aiign. Lac Mitis, Augn. Lotbinidre, Durantayo, Lako Madapcdiac, Lussaudiore. 20 h affairs of ihc e promiili,'!iti(iii about 111 sei- the condition*, its made by t!ic ouso and iioiut In about 15, (I) of tho HI j^'rants, madL' botwcon the dis- solution of the West India Company ami the (irrct <»f 1711, the grantee is rc(iiiired tocommcnee lo clear his land within ;i specified time ; and in about 32 (2) other grants mado (hiring the same interval, the grantee is obliged not merely '' to begin to clear " but " to clear " the land granted ; a certain time being mentioned in some of the grants for the luliilmont of that obligation, iu otiicrs not. (1) no. 197 1G93 St. Anno ilos Muu*«, 193 1689 Riviiiro Mitis, 233 1G9J l)lUltL'llil, 234 do l''o.ssiinilmult, 243 1681 Itoiivillo, 244 do li(!l(ril, 246 do t>t. Denis, 255 1G93 Oil Kiehelieu, 256 do Cnurnoyor, 269 do On liiil.olieu. 260 de On liiclifliou, 264 do licnuclioinin, 2G6 (to (Jraml I're, 327 1701 at. Charlff, 317 1706 St. rani. Each of tlio 111 ovo fifteon grants containn a cliiuso n.« to tho keeping of house and home, excepting no. 197, St. Anno des Jlont.'', and no. 1!)3. riviiiro Mitis. (■.') 107 1G3'2 JJonliuiiimo or Uolair, KiH 1G33 E'joiiloiucni'i m do Rivii'tii (III Loup, on haut, 170 do Islo .^IallalnO| Ac, 173 do Lu!'.«auiliuio, 174 do riorrcviilo, 175 do ]5aio .St. Antoine, 176 do Yaniaiika, 178 do Madawa^ka, &c., 181 1681 Isli! vcrte. 271 1G9G Lc-isard, 274 do De.-aulnet.s or ChaudiOro, 282 do fli-and^'abns, • 283 do T..fji:i,i;o an'l Thibiorgo, 284 do Port L)anioI, 286 1G97 St. Anno do la Parade, 298 do Riv. do Bonaventuro, 300 do Jolliet, 301 do Lepage and Tliibiorgo angn., 304 do (Jrande Riviere, 308 1698 Hubert, 321 1700 Augn St. Anne do la Parade, 325 1701 Lopinay, 328 do St. Jean, 333 1702 On river Etchemin, 334 do Bonsoeonrs, 336 do Soulange.s, 3S7 do Vaudreuil, 344 1703 Carufel, 345 1706 Belair or Ecureuils, 363 1707 Pasbebiac, 3G5 1711 Ste. Mario. Each of thfl above tliirty two g-ant« contains a clauao aa to tho koepiDg of house Md home, excepting no. 234, Port Panicl. There are si few grants made within thesatpr' period, tlm; IS to say, from IG7 I, when the charier of the Wesi Judiii Com. |)uny lerininuled, until 17 1 1, date of the urrci of Marly, which do not come within any of the foregoing classes, and which I therefore notice separately, hut as succinctly as possiijlc, \os. 138, 171, 203, 273, 290, are additions to former gnni« the conditions of which are made; applicable to the iKldiiid. nal grants. No. 211, incdudes a like additional graiil. Nos. 160, ISO, 1S8, 189, 293, 302, 30G, 307, 310 nndjm relate to Islands or *^rcves adjacent \o foruKM- grants whi( h are added thereto. Nos. 101, IC"), 286, 312 ct 313, are grants for reliirjrn' ]inrpos(?s, and do not impose any obligation as to cleariiii,' o- suij-eoneeding ; — and no. 211, includes a grant lor a iik- purposes. — \os. 302 et 305, are grarftcnl for a lislier\ \\\\<.\ slate([uarry respectively. No. 177. Heanmont contains the clause astothe kocpiu- of house and home, and further re<|iiir(>s that the said giaatn shall " furnish the said land and seigniory with buildiiv,'- and cattle," — et garnira la ditc Icrrr. ct wignvurie de hnli- mens ct hestiaux. No. 311, A. D. 1698, augmentation of I.ongucuil, is made in consideration of grantee having expended 60,000, on a former grant and contains no conditions as to clearing or suli-cuu- ceding. Tlu; seigniory of Longiieuil was afterwards enctcd into a Barony for distinguished services of the "ijenioiiic ' family. See no. 326. No. 354, A. 1). 1708, Monnoir, contains a clause as to the keeping of house and home, and anotiier recpuring the grantee " to clear and cause to be clearetl die said land after the present war;" but the first only of these obligations is made a cause of forfeiture. The proviso is thus worded, "die '* said grantee shall be held to have these presents coniiruicd ',310 !in(lJ,H). ;n h •* witliin on*' ycMir, iind iiflcr the waid conliriiiatfoii sliiill lirivc " Ixiii ((htiiincd ami tlir |)r('.-h)ntreal, who |)roi)al)ly knowiiifj; that the im- iiR'diato clearance of the land ^'ranted was utterly imprac- licablc, caused his ifiaiit to he so worded, as to prevent it from heinL( liahle to lorleiture, for the non-lidtilmeni ot' a (ondiiion, the uceoinplisliment ol' which was impossible. No. 355, A. I). I7()H, Honri,'-!Nrarie ; no. 301, A. U. 1710, aii<,Muentation of liom,'ueuil ; tio. 302, A. I). 1710, Moiii.irs ille ; no. 303, A. I). 1710; l)e Ramsay— an; made upon coiulitions in substance tlr same as those mi the urant jjl, of Monnoir jusl adverted t .■ No. 301, A.l). 171 1, aui^mentation .^Grcndines — \hv, last 'j;ninl but one before the arret of 1711, (•< made i; conhide- ration of services ot the t(rantee as Cdpitaine do. ^' ''re de sa rote for a period ol 20 years, and o{ his havini( • '.u^i' fnmi- .1 ing or sub- ^il- ly, and contains no eondititms as to ceding. LMiil, is niadcir. Here it is to be observed, that although but comparatively h'W of the grants prit)r to 171 1, contain a c«>ndition rcipiiring ihe grantee to (dear the land granted, vi t af» (.-arly as 1076, 'he King of France, in his instructions to Messrs. Froiilenae and Duchesneau, ordered that the concessions of land should be made upon condition that the land should he cleared and improved WMtliin G years from the dale of the grant. — Messrs. Fronlenac and Duchesneau seem to have paid no attention to this order, for although < • made numerous grants be- iwecn 1070 and lOSO, that condition is not to be lound in any one of those grants. The successors of Frontenac and Duchesneau, namely, ivlessrs. De La Barre and Demeules, inserted the conditoi m question in almost all the deeds granted by them during the first five years of their adminis- u •'. 32 A iration. But in 1G85 they granted the aiigmcnlalion of Lolbi- nierc to the Sieiir Do Lothinicre, tlien Lieut. General of the Prcvolc tie Qiicbcc^ \\ith()ut that clause ; and in a conside- rable number of deeds, later in date than that just rnentiumd, the condition in ijuestion is also omitted. It is not the los? true however, that many of the grantees, avIio subsetincnilv to 1G7G, obtained land without any condition as to the clear- ing of th(! land, were, by the royal ratifications of their grants, expressly subject to the obligation of clearing and iuij)rov- ing the property given to them. (1) Some of the ratifications, however, although subse(ii]pnt to the instructions of 1G7G, do not contain any such c(«- dition. (1) SECTION G. Arrets de Retranchcment . Having thus reviewed the printed seigniorial titles prior in date to the arrets of Marly, and having also noticed tlir edict establishing the Conseit SiipCricur of Quebec, ami considered the charters of the Coinj)iUiy of la Noiirclh France and of the Company of the West Indies resj)ectivcly, I shall now advert to the other laws generally relied on as j)roving that, even before 1711, Seigniors were under a legal obligation to concede their wiltl lands. I refer to the four arrets de retranc/icmeul, as they are generally called. The first of these arrets bears date the 21 march 11jG3, and a translation of it is to be found in the third V'ol. of the Seig. Doc. page IGO. (" Edict of the King of France^' 2\st Marsh lGG3,revolv(ii;i grants of lands tiot cleared.) " The King having caused to be laid before him, in his " council, his edict of the present month, whereby His (1) Seo particularly Uie Royal Ratification?, nos. 163, 133, 223, 3GG, Ac, which cm braoo a groat number of grants. (1) Sir: or instance nos. 191, 193, 211, 252, 253, 324, Ao. 33 h lation of Lolbi- Genoral of the d in a conside- iust mentiunod, t is not the les? subs('(jiic'nily as to I lie clcar- 1 of tlieivi,'rant.<, ig and iinprov- igli subse(iiipnt any such cm- ial titles prior u dso noticed tin- u Quebec, and i( of /a Mill will es respeetivclv, tl ly relied on ;i.>' .1 re under a legal a efer 1o the four u ' called. a 21 march llJG3, a lird Vol. ofihf IGGS.rcvolrinj 11 (1 jrc liini, in hin It whereby lib u It i, 3GG, Ac, which cm Mujesly, in consecpiencc of tlu; irrant and surrender by the persons interested in tlie C()jn|)any of NCw-France, resumed all die rii^dits which h;id been i^niiUed to them by the deceased Kini,', in conse(pieuce ol' the treaty of the 2!)ih of April 10 >7, and Ifis Alajesty, liavinnr been informed that one of the chief causes of the said coiuilrv not havin"- become as populous as uui,dit be desired, and evcji that several settlements have been destroyed by the Irof/itois^ is to he found in the o-rmits of large (/tfnut/fics of land which have been given to all persons inhabiting the said ' coiinlrii^ tv/io not having ever had nor having the poirer of ' c/mring the same^ and liaviui^ established their residence ' in the midst of tin- said lands, have, by that means, been ' placed at a great distance from each other, and even irom 'oljtaining succour from the olJiccrs and soldiers of the • :,Mrrison of Quebec ami other places in the said country ■and thus it even ha|)pens that, in a very great extent of ■ eountiy, n^hat little land there is in the environs of the ■ ilin'/li// ;;s the third, l)earing date tlie Ith (hiy of June 1G75, nl' willed we have also a translation at pai,^' IGl of the third vol. u{ Seig. Doc. Arret of the Kinit, {4lh of June IGTo), for rnhicin^^ the mi- cessions winch are too fxfetisive, and for mahbig a crnsns. " The King having been informed that all the subjects " who have gone from Old to New France, have obtained " grants of a very great quantity of land along the rivers in the " said country, which they have been unable to clear by ri'a- " son of their too great extent, which is an inconvenience t(i " the other inhabitants of the said country, and even pir- " vents otlier Frenchmen from going thither to settle, v. liicli " is entirely contrary to the intentions of His Majesty as lo " the said country, and to the attention he has been jjleascd " to bestow, for eight or ten years, on the extension oi' the " colonies which are settled therein, inasmuch as a par! only of the lands bordering on th(! rivers is cultivated, the " rest not being so, nor admitting of becoming so, hij nasoii " of the too great extent of the said grants and a /rant of '■'■ meaiis in the proprietors thereof; which requiring a n- " medy, — (( M " His Majesty, in his council, hath ordained and doth or- " dain that, by the Sieur Duchesncan, councillor inhisioun- " cils and intendant of justice, police and finance in the said " country, there shall be made an accu.ate statement " of the quality of the lands granted to the principal inha- " bit'ints of the said country, of the number of arpenis (or " other measure used in the said country) which they con- " tain on the borders of the rivers and in the interior of the " lands, of the number of persons and cattle fit for and em- 35 A hiciviX fill' tuti- ■' jihi/cd in cultivating and oloiiring the suino, in comcqucncc " of which statement, one half of the lands which were granted '< before the last ten years, and which are not ch^arcd and ciil- " tivatcd as arable or as meadow land, shall be struck out '• of the grants aiHl j.- ven to such persons as shall come for- " ward to cultivate and cltar Ihcm, " His Majesty ordainelh that such ordinances as shall be " made by the Sieur Duchesneau, shall be executed accord- " ing to their form and tenor as being supreme and of ulti- " mate resort, as decrees of a superior tribunal, His Majes- " ty, to that end, attributing to him plenary jurisdiction and " cognizance. " His >rajesty thus further ordaineth that the said Sieur " Duchesneau do give j)rovisioua!ly grants of the lands " which shall have been so struck ofl', to new settlers on eon- " (lition, however, that they do completely clear the same " within the four next ensuing years, in default whereof, at " the expiration of the said time, the said gf;ints shall be and " remain null. " His iNIajesty enjoins, &c., &c...... given in the King's ^ Council of State holden in the Camp near Namur, on the "4th day of June 1675." The fourth and last of the arrets de retranchemcnl bears date the 9th of May 1679. It recites the arret of the 4th of June 1675, and sets forth that the intendant Duchesneau liad prepared a statement or land roll, such as the King had ordered ; and that it appeared from that statement, that the grants of land were of sucii extent that the greater part thcr(!of was useless to the proprie- tors, for want of men and cattle to clear and improve it, " f'aute " dViommcs et de bestiaux pour les def richer el mettre en va- ^^leur ;^^ that the lands remaining to be conceded were dif- ficult of access, not being near any navigable river, so that many of His Majesty's subjects who went to the colony, 1- t it i^W^ 36 h abiindonetl the idcJi of srltliiii,' llicre ; lli«' urff'/ liiniupon ordi-reil lliiit tUr. (irrct oC IG75 r^lioiild be cxcfulcd .icionliii,' to its U'lior, and dcclaivd dial one Ibiulli of all tlir \\\\u\< conceded bclbre llic vcar HIG.";, and i(')iiainin;j- inulnnvd at die liiiu! ol die |)assinif <»! die (irn L slioidd In' taki'ii I'mii/ tht' proprietors ".iid posscssorn lia-rcor; and I'urtlicr dial eaci, year llicrcaftcr, one twcnlietli ol" dit; uiirlciircd rcmuiiulir (it each grant should be taken from tlio owner and distribiiicd among His Majesty's sid)jeets resilient in llie ( olony, wlic were able to (udlivalt; the same, ox to Frenelmien going lo the colony to settle there. These arrcfs are constantly referred to as sIk )\vin'' at Seigniors, even at that time, \v<'re under the ohtigatioii in sub-infeudate their lands ; but, in my ()i)iidon, they l'iirni>h no evidence on that ])oinl, the only one in r had n^fused to suh-concet!c tlicii lands, or that they were liai)le to b' couipidled to do so; iim do the i-naeting clauses lend to impose any sucli oldiijalldii, )|r;i( These arrets do not even purport to he based on any I of the conditions upon which the grants were mad*;. They alTeet e(pially ail the grants, irrespective! of the con- ditions stipulated, or the tenure under which thi; land wa^ held ant ipu 1 make no distinction between the grantees who had, and those who had not bdlilled the conditions iuipi )set! n pon them. The first of these arrcHs declares ' iliat one of tli<> cliiei " causes of the country, not having become as ))opulous as " might be desired" — is to be found in the grants of large (juanlitics t)f land which had been given lo all jiersons in- habiting the said country, who nut havinii; ever liud^ nor hav- ing the power of clearin/', which the (uvncr liimscH' (•onld not clear, was not likely to be ehiared in any other wav ; tliiis ii,aiorin.£( siilx-oneessions as ;i means of setlini,' and improvini^ the wild lands of the eoimtry. The enacting clause, in aeeordrmce with the preamble, re(|uires the gran- tee* to cause the " lands contained in their grants, to be rli'ared within six months, I'rom the date ol'the publication ot the said «r/v7," but (h)es not contain any order of" any kind as to the sub-conceding ol'the lands. The second and third arrcls de relranr/icDienl, in like man- ner mention that, "part only of the lands bordering on the " rivers is cultivated, tlie rest not l)eing so, nor admitting of '])!'coming so, Ijy reason ol'the too great extent ol'the said " i,Tants and tin; want of meiu/s in I he pro/irielors tliereof. ■" — N'ow, if, at this time, it was understood ihal Seigniors were lo cause their lands to be inijjroved l)y means of sub-conces- sions ; and if it l)(> trne, (as has been contended) that Seig- niors, from the first settlement of tli aiix pro- " prit-taires faiilc (Vhommts el dv hvsliaiix pour Ics (K'-iViclier " et iiicltrc en valeur." If llic King un(l(;rsloocl tiiat these lands had becm given to the Sfiigniors merely to .sab-concede them 1o others, and iliat to sub-concede their lands was their paramount duly, how could he have said that the greater part of those lands were useless to the proprietors for want of labourers and ciiltle, fantc (Vliommcs et de bcstiavx punr Ics dcfn'r/ier el jncllrt m valeur ? Opinions are divided as whether the arrets de retniftdie- ment e\('r were carrii'd into ell'ect. As that point is of vnv little practical iuiportaiice, I slui'l content myself with ob- serving thai ! Know oi no instance in which tliey were ac- tually enforced ; that is lo sjty, I know of no instance in which a Seignior was deprived without compensation, ol' all his rmcleared land by virtue of the first arret dc ■•(Iran- clienietil ; or of the one half of his uncleared land by viiiuo of the 2nd and 3rd of those arrets, or of tlu; one fourlli or of one twentieth by virtue of the 4tli and last of those arrety. Doubtless many tracts of land, which had been granteil either en fief or otherwise, were afterwards re-uniled to the Crown domain. IJut so far as I am aware, this occurred in cases only where the grantees had failed to fulfd the coiuli- lions of their grants ; and therefore may have l)een done, and very probably was done under the gentjral law of llio country, and in ^iir. .aanec (f the co)/tracts between the King, as Seignior suzerain, and his Vassals ; and not in plain violation of those contracts^ as ordered by the arrets de retranchement. It is (juite certain that those arrets, of themselves, did not operate a defeasance of the grants. The first cirrH gave the parties against whom it was directed, six months from the time it was enregistered, to clear their lands ; and it was af- 30 h lenvanls modi'^'cd by the other arrc/s, which re(|iiiird ihiit a (certain porliononlyof the uncleared hinds should be resumed. In order to enforce tliese arrets^ some |)roceedin/" under th(« jjrovisions of the arrrts dc ri'tranclicnicul. A ca-i)i feudal ion of itn/d htnd not made ohligaluni htfore arret o/' 1711. f have now, I hcliiivc, noliciMl all tlio imporlant printed fi^ranls fv///V/'ina(lo prior to the r//-/V'7 of Marly, Jind Jilso all tlic; Icf^Mslativo acts tip to tlio same period, bcarini,' on llic siihject now under (consideration ; and I must say I do not find any tliiniy in those laws, which, according to my views, wonld justify me in asserting that they created or enforecii, or were intended to (!reate or enforce an oljligalion on the part of lI,G owners of Ikfs to sub-concede their wild hinds. Indeed, I cannot lind that they allude to such supposed obligation in any way. They evince a constant d not lo iny views, or cnlou'tti, Ration on ilie r wild lands, ch supposed 41 // nut an acre of land ; wlicroas ihe formor, evon if carried out to the utmost extent, would leave liiui in possession of liis whole firf. 'V\\v iVencli authorities, alllioui(li lliey may, in common with others, liavt; had erron(H)Us views as to colo- nization, know perfectly tlu^ for(;e and meanins^ of words ; and if, from 1G28 to 1711, they had constantly intended to ooiiipel the owners of //Vyi- in Canada to sub-coneede llu'ir 'ands, express words to that edeet would have been found II some of the hundreds of i,Mants math; durini< that long ntcrval ; and yet we have seen that no sutdi words are lo be juiind in any of them. It does seem strange that the laws and grants prior to 1711, which are wholly silent as to sub-concession, should be considered to have as ell'ectually imposed the obligation to sub-concede as the arret of that year, wlii(di expressly •iijoini •d it. Moreover the claust containing ilie condition that the land •jranlcd should be cK ared within a certain time, was t)b- vionsly, even as regards the duly of clearing, a comminatory cliiuse, and could not have been considered otherwise ; for the fulfilment of it was not only nllerly, but plainly impos- sible, either by sid>conccssions or otherwise. The fiefs granted j)rior to 1712, contained, it is staled, ;ii)ont 7,0l)(),()00 arixnits, and as late as 173 I, according lo a census then made, the whole of the land cleared in Canada did not exceed 1S0,7G8 (1) arpents — so that the wlude of the land cleared during a period exceciding a century, did not amount to three per ciait of the land granted prior to 1711. We can thus form some idea as to how far it would have been practic^able for the owners of the Jiefa^ of whi(di we are ni)\v speaking, to (dear the land gra?ited to them, within the lime mentioned in their titles, either by means of sub-eon- cessions or otherwise. (1) Gamoau— 2 vol. p. 440. 42 h Such llion am the grounds upon wliicli, notwitlisianding the sincere respect wliicli 1 cnlt-rtain lor tlic opinion olilio learned Judgcn, from wliorn I have the misfortune lo diller upon the present occasion, I have come to the; conchiNJon that the conci'ssion of wild hmds for the purpose of settle- uiriit wan not made obligatory upon Seigniors prior to the arret of 1711. licfore proceeding to the consich-ration of that urn'/, it m;iy l)c well tool)serv<', that whatever doubt may exist, iistn whether Seigniors, prior to the date; of that law, wcic or were not under a legal obligation to sub-concede their wild lands, there is most assuredly nothing in any of the lau>ior titles of wlii(^h I have spoken, which had any, even the slightest tendency, to prevent a Seignior, when he did con- cede, from ol)taining the best terms [)t)ssible in his own favour. In none of those laws or titles, do w«^ find any trace of ;i lixed rale at which, or of any particular conditions upon which a Seignior could be rccpiired to concede his land. A careful review of the grants and laws prior to the arret of iNIarly, must at least prove this much, that, up to that time, the parties to deeds of concession coidd exercdse the same unrestricted freedom in those contracts, that they could in making any other agreement, and that, in this res|)ect, common law, namely, the Custom of Paris, remained changed. With these remarks on the legislation and iitle!< ])ri()r to the arret of 1711, I now proceed to the consideration of that arret which is doubtless one of the most important ol our iin- our colonial laws Section 8. Arret or 1711. This nrr^t contains two distinct enactments ; of these, one relates to those Seigniors who had no domain cleared or 43 h settlers ('stal)lisli(>{l on tlicir srij^Miiorics, (lir otiier to certain St'i:,'ni()rs who liati r('riisc borne in mind that the lands to be alfected by this law ex- tended over a vast rana^e of country of al)ouf lodO miles in fem^lli, and that they, therefore, w^ere necessarily widely dil- ferent 'roiii ea(di other as to y this law o\- 1 :>(»() miles in ily wid(dy dil- (1 sitnalion, i' ^ nnicasonablt' ondcnce wliiel: r. uniroriu rale ttif llie wlude colony liad Ix'cn rrppaledly and slroni^dy iirijed upon the I'reiKdi minister, hy Mr. U,m(l(»t senior, ilieti iiilendanl ill Canada ; his proposal l)ein<,', " that his Ma- " jesty should ordain that they (the Seii^niors) should oidy " taki" lor eatdi arpeni ol' the contents of the i^ranls, one sou of rent and a capon lor each arpent in I'ront, or :i() ^^ Sims at tiie clioice ol'tlie 1,'ranli'c." (I) \Ve know also, Iroiu the printed correspondence, that ihis subject was lor some I iuii! under the ccuisidcration ol ilic authoritii's in France ; and wImmi, with thes«; Tacts Wcl'orc lis, we ('(tiiipare the |)roposal, made by llauilol, with Ihf «)•/■/■/ actually promiili,'ated, it secius dillieult lo iivoid tlu? coricliisiou, thai that proposal was deliberattdy rejected; ctrtain it is, that il w as not adopted. It iias however been contended, that the obligation \o vulwoncede, must necessarily have been nii;,f!itory, unless a certain rate had been established, at which concession." should be made. I'lie argument, I lliiidi, has little weijjfht- The obligation to sid)-conced(' would indeed have been nu- gatory it" no rule liiid been laid down, according 1(» which thai obligation could have been enl'orci'd ; but there is a tiianilest dillerence bi-lucen the establishing ol' such a rule, and the lixingof a uniform rate. Mr. Raudot re|)eatcdly and earnestly suggested llu; latter alternative; His IVIu- jt'sly in his council ol stale, alter the subject had for some Ijcen under consideration, adopted the former. Under lion law, if a Seitrnior aiin.'ed to concede land wilh- IlllK' 10 comi out naiiiing the rate, il was determined according to that Usually paid for the adjoining lands in the same seigniory: and this rule was adopted as lo concessions to be made by ilu; governor and inlcndani under the arret. In doing this, the King not only did not establish one uni- torin rate, but, on the contrary, sanctioned an almost in- finite variety of existing rates ; and virtually j)ermilled the (1) t Vol. S. D. J). 9. 46 A estahlisliment of ollicrs without any limit as to numlicr or amount. And from tlio ollieial corrcspondcnc^c, to whicli 1 liave aln^ady adverted, we must presume that this was done advisedly. Mr. Raudot, in his h'tter of 10 Nov. 1707, li;i(i eoMipiained " ihat^ in (i/iiiost nil llir sri<<;ini)rivs^ l/i>' dins arc " (lid'vrcnt ; some |)ay in one way, others in anotlier, accur- " dini,' to the dillerent characters of the? Seigniors by wlioiri " the grants ivere mad(,' ;" and, in liis h'tter of tlie IfSih of Oct. of the folU)wing year, the same intenchmt says : " It " wouUl also be necessary, with regard to the srfi>-)n'(iriul " (liu's^ to mdkc them vnifomi hij rcducin)^ them all to tin; saiiic '•' scale^ and for this purpose, my Lord, I have the hoiioiuio " send you a memorandum contdinin'j; the dues ir/ncli I '■^ have foiaid in srvrr/d deeds of eoneession all ditjerenl from '•'• etteh other.'''' We fmd the same wortls in the letter nf ilip 10 .July 170S, from Mons. de Ponlehartrain to Mr. d'A- guesscau. And yet we see, that, with these facts Ixlnv them, the King in his council ordered tlie governor mid intendant in Canachi, in case ol' a refusal on the part ot liic Seigniors to concede their lands, " to concede to llic said " settlers the lands demanded by them, in the said sei- " gniories, for tlu; same dues as are laid upon the' oilier con- " ccflcd lands in the said Sfiii^-niories ;" — thus adopting and sanctioning, for each seigniory, when the governor and in- tendant were recjuired to intervene, the rate usual there at the time of the making of the sub-eoneession demandi d ; tiiat being the interpretation put by the colonial aufliorities, on the words " in the said seigniories," and the only one of which tliey are susceptible. It is to be observed that, although the arret lays down a rule for the concession to be made by the governor and in- tendant in case of a refusal on the part of a Seignior to con- cede, it does not attempt to define what should be deemed a wrongful refusal to concede on the part of a Seignior. The public cfTicers named in Ihe arret would tlierefore have had to determine, according to the particular circuins- 1 aiitlioritifs, 47 h l.mocs ofoachcasr, wlictlicr llic rcfnsal, on tlic part orific Scii,mif)r, fo concede was jiistitiahh! or not. And in tlir event oCfliero bcinir no refusal to concede, Lnt an olli-r to do so, on terms not accepted by tlie applicant, the ^m- vfTMor and intendant woidd then have had to decide whether the terms proposed by th(; Sei-^niior were such as he could legally exact. Hut if their was no refusal to concede, nor disagreement l)et\vcen the Seignior and the Cvtisilairv ; if, on the contrary, ihpy had agreed as to th seigniorial y cnlerlaincd 1)1' the ihir- ic rates and seii^niorii's ot s to be I'onnd nlrrprtted lui ] hij (I. /c^riT'' els {Inrvfh) s of any law justify the between tlic lis of law, ii i had it h»"«'» c attempt to interpret the ar/Y'/ of 17 1 1, by the ijrants to the Seii,Mii()rs, by usage and by judgnienis, woidd not have been necessary. But as that mo(h' of inteiprctation lias l)een ndiod on, I cannot pass it over altogether in silence. As to the grants to th(> Seigniors, it is obvious tliai each irraiilce is bound by iIh> icriiis of his own contract ; and (Mjnally so that the grants to wliicli lie was not a party cannot be biiiditig upon liiiu. There are, it is tnu', four grants en /f/'inade siibseipicully to the ^d for 'he last 90 years. In line, it is hardly necessary to ob^t>rve that it the Seigniors were bound by usage, they could \n) released by special contracts ; and it is upon such contracts that they claim their rents. 50 h It limy liowpvcr ho |)rct('ii(lc(l that tlio Scijrniors wore not boiiiul merely hy ns!ii,M' ; hut that th(.' ust!ii;i: i/iferpnicd /'^ lav\ and that the hiw thus inter))rete(l hound the Sei<,fnioM to eoMced'' at a fixed rate. I reply tlial, ilthe hiw, olits own I'orei', -lid not hind the Seignior to concede at a fixed rate, and it" the supposed usa;,'e, hy itsell', could not (h) so, I am at a h)ss to undor- stand l)y wliat mysteriouH process the hiw and usaije to- gether can he ma(h3 elU'ctual to do that Avhich neither the law nor tiic usage, se|)arately, had any power to accom- plish. It was my intention to have noticed each of th(> judginents ol the intenchmts, whicii have been cited hy th«! h-arned counsid for tiie Crown, as tending to cstal)iish a uiiitorm rate ; hiit the ()i)servations wiiich liave heen made in re- lation to tii(iM, hy the learniMl president of this court, so com- pletely exhaust the suhject, and an; so conclusive, that I deem it needless to dt) so. VV'ithout liowever entering into details, I may observe that no case has been cited, nor I ix'licve can be cited, in whi(di the rent agreed to in a '••^•gular contract of concession was ever reduce ! uierely on tlu; ground of its being iiii^hcr than tiie rents customary, at the pcrioil of iIk^ making of the deed of concessit)ii, ox at any olhcr period. Moreover, I'von supposing (what certainly is not the ease) that the jiidg- raents of the inteniiants did tend to establish that the rent, voluntarily agreed to by a Seignior and settler, could be re- duced, on the ground already mentioned ; still it is certain thai the courts of justice of the col(»ny, ever since the cession, have held that the parties to a contract of concession wt^r«' at liberty to make any agreement they liked, as to the rate of rent to bo paid by the Coisilaire to his Seignior. Now, if this court, in interpreting the arret of 1711, is to be i^uided by former judgments, assuredly the uniform decisions of llie British courts, ought to be deemed of higher authority 51 /i ihan any ollirrs ; snpposin<^ such otli(>r.s to rxist, wliieli however is not the ojii^o. Upon the wlioK* tlion, as to this part of the mattrr now under our consicli'nition, lam clearly of opinion lliat the oblii,'alions imposed upon Seii,'ni()rs by the arn't of 1711, cannot bo extended by reference to any usage or juris- prudence ; and that the provisions of thai arret, inter- preted accorditig to the plain and natural meaning of the words in which it is framed, do not jireehuh! the parties to a deed of concession, from cllcetually agreeing upon any rate of rent they think fit. SECTmN 9. Sei'icn/orial .'nee of opinion which exists between the Judges, as to whether, prior to that arret^ the owners o( ficfs w^ere under a legal obligation to make con- cessions ; I deemed it my duty to notice such of the con- ditions of each grant as could be deemed to have any bearing on that point ; but as we are all agreed that there can be no doubt as to the existence of the obligation in "Question subsequently to that arrety I do not think it neces- .02 //. snry to cnlcr iiilo the same details willi rcspcci lo flu! -- 'I'he lust lour of tlit-.-^n gninUs, in a'.ijition to ilnuse.i ci.n- taincil ill ;io (itm .v, coi\tnin iicImiisc to tlu! toMowing offoct, " the saiil grantee shiill sati.-^fy '. 1)1 thu wurii tio ."i. ',! h ' vo caiL-eiJ to ho doiio tlicioou from this ilay til- nexi !':i I, in (lof iiilt wlieroii ui'O.'^.'ion null, Ac' 'I'lio 2 grant.i tliat proccdu tlio.>e lour, v;/, ; ;.'9 ami I'.iO, rciiiiirc the grantoo.s to oontriliuto to tlio luakiuf? of a cerliiin vulilic roal, :in I ;i like ohligatiou seeins to havo been iniposeU on the grantees of tlio litlos, nos. 431, 439, 440. (4) Viz : I! ..s.38(i, 3H7, 388, 383, 390, 391, 392, 393, 401, 402, 433, 435, 433, 463, 471, 475,491, 49tj, and 431, 439, 440. ■^rni^' 53 h iniis male- lilies, and le granl(jef< olicc tliein iu]r. suhjfcl r condition^ lliirty tlin'i- ' el (Ic I'airf! is (uTil foni Hues aciou- 4) were pro- 'gislcr seciii vr.oro iiTiporlanl, as t\io royal ralillcalions of ihc deeds llm«< iniperleelly re-islered, with, I Ixdieve, a siiiirje exeeplion i<; con- ([.asallc, no. 101) do not (tonlain any clause as to tl ditions upon wliieh sub-cone essions are to he made The lirsi two ^rrants, after the «m'/ of M;irlv, are under the numhers .'3(j7 and .'JflS (in Mr. Diml do not contain any conditions a.s to suh- < ill's sruuniary) and concession. The next four i^^rants, nos. .'309, .'}7(), .'371, ;J7(;, are tl lOHO w hich contain an express oblij^'ation as to the rate; of rent uiul oilier condition sub-concessions. s to be sli])idated by the ,i,n-antee in Ina No. 309 (A. I). 171.3), iH'inn; cjranl of au£,nnentation of lieaimiont, in addition to the chiuse as to the keeping of house and honu!, contains the following (londilion :" a la "charge de conceder les dites terres a siniph- litre de re- " devanees de 20 sols et 1 cliapon pour cliaeun nrpenl de " front sur 10 de profondeiir, et six deniers de ci>ns, sans " (ju'il puisse cln^ insere dans les diies concessions ni " s(»iuines d'argent ni aiiciuie atilre charge que celle de " sinij)le litre de redevances el ceux ci-dessus, suivaiU Ion " inlenlions de Sa ISfajeste. As to the mi tlio 3, 4:}5, 433, 463, No. 371 (A. D 1717), is th.- grant to the semiiary of St. Sulpice of the seigniory of tin; !.ak(> ofTw<. Momiiains, ;ind It contains a clause similar 1o lliat in no. 309, augmentation of M(>aumont, which I have given at full length ; but in the ralilicalion, bearing date the 27 April 171H, the clause, nf* to the making of sub-concessio's, was modilitid by the ad- dition of these words: " leur perniettanf HCNanrnoins Sa 54 /t " M.'ijpKd'', (le vendro ou donncr a redovnnoo.s plus forlos Ic? " trrrcs donl 11 y aurji an nioius uii (jiiarl dc drlViclK:." Aftrrwards. on the .iQ Si'|)I('IiiI)(M- 1733, tlio seminary ob- tained an augiUL-ntalion ol' their grant. TIk; second grant or augmentation contained the chiuse, which was usual at the lime it was ujado, vi/ : " et de faire inserer " j)areilles condiiiiuiM dan.^ le.s concessions (ju'ils leront a " lours tenanciers, aiix. cens, rentes et redevanc(;M ac(;ou- '' tumes, par arpenl de terre de front sur cpiaraute arpents de " profondeur." Willi this clause however, the seminary were dissatislieil, and having remonstrated, asa))pears i)y the cor- respondence to !)(• lound iii the fourth volume of the Seig. Doc., the King, by the deed no. 127, dated 1 March 17.35. being the ratilication of the 2nd grant to the seminary, mo- dified not only the c(»nditions contained in that grant, but also those contained in the first ijrant. Tlie words of the 2nd ratification are: " et de fairc; inserer " pareille condition dans les concessions, par un litre ([u'lN " feroni a ieiu-s tenanciers, aux cens, rentes et redevanco.«i " aceoutuuu's, par clnuiue arpent de tern? dans los .seigneu- " ries voisinos, cu efj^ard a l(i(/U(ilile et situation clcs /icrilai^es " an t'jinps ill's (litis concessiu/is particulitfcs^ ce (pio Sa Ma- *' jeste vcut aufsi etrc obstirve ])our les lerres et heritages " de la seigneurie du Lac des Deux Montagues, nonobstant '^ la fixation des dils cens et redevances, et lUi la iiuanlite '' de terre de chacpu^ conci'ssion |)orlce au dit brevet de 1718 : " a quoi Sa Majestu u dcroge." The changes, which took place in the grant to tho seminary, have caused me to notice; the last ratification in their favour somewhat out of its order of date. I now howr-ver go back to 1727, when the last of the four grants already spoken of, was made ; it is no. 37G, (1727), grant of augmentation of St. Jean. This grant also contain;^ a clause similar to that in no. 3G9, which I have given at full lenglit ; but the Seignior of St. Jean was allowed to 55 h r(»r('ivo as mncli lor a fiirin ol'^iO arpciils, as ilif Sciij^iiior of Mille Isles was allowed to rccrivu lor a liniii of ;il) ar|)rnts ; and iis the Sci^Miior ol' Ik-aiuiionl was allowed to lake for 40 ar|)('Mts ; and yet these are the tyrants conslantly relerred to, and mainly relied on, as provini^ that a nnilonii rate was eiiitablislK.'d lor all conc^cssions math; cn ceHsive. I liiive not seen ilie riitilication, by the Crown, ofthi' ^'ranl of HeJUiMiont ; hut neither the Hoyal ratification of the grant of Mille Isles, nor that of St. Jean, allhoiigh they specially oiniiiierate several conditions as thos(! to which the said grants respectively should he subject, contain any reference l(i an obligation on lli<> |)Mrt of the grantees to conceiie at a fixed rate. The next grant, after the four grants already specially re- ferred to, is a grant made directly by the King to the iuar(|ijis of IJeaiiharnois, then governor (»f the Colony, and to his brother; it is no. ;)77 (A. I). 17<'f)), audit recites that it was innde in consideration of the services of the iuai(H lis as gover- nor and lieutenant g(!ucral in .Vew Franco, and also in c )n- .sidcration of the services which he had rendered during tlie lute war, as a captain in the Navy. It re(|uires the gran- ti'os to reside on the grant, and to c/ciir the land and have it cleared iiiimcHliately ; but contains no obligation, on the part of the grantees, to sub-concede, nor any reference to a fixed rate of trns it rrt/tes. Nos. 378 and 379 respectivoly are the grant and ratifica- tion of the augmentation of 'rerr(d)onn(\ They recite thai tli(> grantee had made exlcn>iv(^ improvements on the former graiil, and that he was under contract w ilh llie Crown to furnish certain lumber, and are made on the same terms as the original grant no. ]2G, w hich reipiires that the grantee " shall, within three years, i)egin to cause; the lands eoni- " prised in the said concession, to be l)rought under cultiva- " tion, and the divisions whereof shall be surveyed and '' bounded within the said space (»f time " ; but there is no obligation to sub concede at a fixed rent or in any way. 56 h Tlic next 1,'ranl is iIh; first oj' \\\o. lliiily llin'c to whidi I liJivc ;ili-c!i(ly iidvcilcd ; it is no. ;{.S() (A. I). r<.li;il| k('('|), (»ii the liiiid ili;dl (liar and " eaiise to he ejeiired th(' saitl tract of land, in d< laiill " w liereol' tlie present eon •(•-■'ion shall l)e and remain null," and that he shall leave the Ivini,'\s lii;,di\\ay and other road wav'!^ necessary (or the pnl)lic use, then continues lims : " v\ de (aire inser(>r pareilles conditions dans les eoncf)*- '■'■ sums t/ii'i/ Jrra >/ scs tntancicrs aiix rct/s rt nnfrs if n- " (It rtificcs nrroiifiniics par (irpcHl dc Imc de front siir 4(1 " ar pruts (IcjirofondcHr. " This claus(> is far frnni heini^ cK-arly worded, lait it secrns to UK! to be susceptible of only two iiieaninL,'s. 'The word? iucr r( t/s rt rriitrs ct rrdrvuHVCS (uroiitinnes iiiii>1 have Ik eii used, eiilier to limit th(! cases in whi-h \\\v. preceding' con- ditions we) ' to be inserted, or to obliife the J4rante(! le make CO icessions at the customary rates. In oilier word-. the cl .asc unist mean, either, that the precediui,' condiliou^i weie to ])(,' inserted in concessions made at usual rates, hat not in concessions made at uiuisual rates : or that those conditions shordd be insi'rted in the concessions made hy the l);ill ( lr;ir iirul >r liind, ill tlrl'aiilt and iTiiiaiii null," ,-!iy iind ollirr lojul •n conliniics ilms ; i daus Ics coiu'C)*- ',s' I't rrn/rs 1 1 n- re (It; front sur 4(t ordcd, linl it seems nine's. Tlie wdrd!" t'.v iMiist have hfi'ii the precedinii; eori- iij;e thi' i;iantee id J. Ill odier \\()l(N, receding coudilion;'' al usual rales, hut lies : or that those )ncessi()iis inadr by i'took to make aia 1 so iinre!is()nal)l(', led ; and the latter, construction of ilm ut r"t ma'j:is vakai ltlK)iiyli this clause ts and prohalily in o I'ar as I kno\v, in : nos. 11)1, 510, all The variations which are to be observed in llie grants l)et\vcen 1711 and I7;JI, when the clause eonlainiiii,' lUe \\(m\'* (in.t: rrtis rt ntifrs if rrt/ri'fnicrs (nionl tones seeiiis l!), of Meaiiiiiont, made in I7l.'i; no j70, of Mille Isles, made in 1711 ; no. 371, of Lac (U;? Deux Montagnes in 1717 ; and no. ;J7(J, of align, of St. .lean, in I7J7, tlu! governor and intendant seem to have wished to do, as far as tlicy could, by eonlraci, stanething not un- like what hail previously bee-n suggested should be done by law. That the King, to say the least, did not attach as much iiiiuortance to thos(! clause- as his ollieers in the colony did, ratifications of tliosi; eoiila(!l3 is evident from such (id have been printed. Soon after the making of these four grants, h(»wever, it became manifest that the authorities in France did not in- tend to ado|)t the clause re(iiiiring Seigniors to eoiKH'de at a fixed rate ; for the grant made in 17:3!), direct from tlw Crown to the manjiiis of Heaiiharnois, then the governor of the colonv, and to his brother, did not contain aiise The ("). any such governor, having thus Ix'come tlio part j)ro])rietor of (me of the most extensive seigniories in Canada, probably did not feel that jJi-cjiKlicc! against the owners of //r/\, \\ hich seems to havi' been entertained by Mr. Kaudot and some of the other intendants. He tl lis as it may, it is certain that the clause r '(jiiiring concessions to be made at a fixed rate is not to be found in any grant after that of IJeauharnois made i)y the Crown in ly^n, and in which that (daiise was omitted. (1) Tli;it clniiso is nut to l)e fimivl in any grunt nimlo liy tlic! K '" ii'iy i;rant niado in Caniidii under direct orders from tho Kini?. .See nus. J7:^, '19:^ mA 50:;. '' ing in Fnmi I IMAGE EVALUATION TEST TARGET (MT-3) // %2 1.0 I.I 1.25 M 1 2.2 M 1.8 U i 1.6 <^ 'W. /a /a (?. V /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 # ^^ iV :\ \ 9) 6^ % V # tA r 6Sh I deem it the more necessary to advert to this point, be- cause an attempt has been made to connect the arret of 1711 with the four grants containing a fixed rate; and in like manner to connect the numerous subsequent conces- sions, which do not expressly mention a fixed rate, with the same four concessions : and tims, in efl'ect, to make those four grants, which are clearly exceptional cases, a guide for the interpretation of all the other titles. In support of this view, it was asserted in effect " that the Jirst four " concessions after the arrets of Marly, all speak of a fixed '-'■ T2LiQ oi cens et rentes ^H hem^ obligatory upon Seigniors.'' That this statement, and another statement to which I shall just now allude, were made in good faith, cannot for a mo- ment be doubted ; but still I am bor.nd to say they are not exact. The first two grants after the arr^t of 1711, are those under the nos. 367 and 3G8, already mentioned, and they do not speak of any rate of ecus ct rentes as being obligatory upon Seigniors. The other statement to which t allude was, that all iht concessions, subsequent to the four that mention a fixed rate, and down to the cession, contain the obligation " dc " faire inserer pareilles conditions dans les concession? " qu'il fera a ses tenanciers aux censet rentes et redevances " accoutumes par chaque arpent de front sur quarante de " profondeur." Now the first two grants after those four exceptional cases, are the nos. 377, 379, the one being a Royal grant, and the other being in the form of a ratification by the King of the grant no. 378, and neither of these contains the obli- gation alleged to be in all the grants after the four contain- ing a fixed rate of ce«5 et rentes. The same obligation is also omitted in four of the subsequent grants. (1) (1) Viz : nos, 493, 495, 501 and 502 59^ I will conclude these observations on the grants after the fl/re^ of Marly, by observing that the clauses found in four grants, obliging the grantees to sub-concede at a fixed rate, doubtless limited in a very important manner the exercice of their rights in the disposal of their property ; but tlie clause requiring the grantees to concede uux ctns, rentes ttredevanccs accoutumes, created a conventional obligation in extent but little if at all different from the legal obligation imposed upon all Seigniors by the arret of 1711, according to which, upon the refusal of a Seignior to concede his land, it could be conceded by the governor and intend ant " for the " same dues which were laid upon the other conceded lands "in the said seigniories." Even however, in any of the four cases, in wdiich the Seignior was bound to concede at a fixed rate, I do not think that a Censitaire could cause an annual rent, voluntarily agreed upon between him and his Seignior, to be reduced, on the ground of its being higher tlian that mentioned in the Seignior's title. The Censitaire^ in that case, would be bound by his own contract, and could not take advantage of the covenant between the Crown and its vassal. (1) It would be like the case of a imembrcment of the vassal's fief which could be impu- gned by the Seigneur suzerain, but not by one of the con- tracting parties. I shall now make a few remarks on the rate of two sols per arpent, proposed by the attorney general, and then closu my observations on this branch of the subject under consi- deration. SECTION 10. Observations on the maximum rate of two sols per arpent pro- posed by attorney general, I cannot terminate my observations on the questions res- pecting eens et rentes without adverting to the maximum rent of two sols per arpent, to which, according to the 25th (1) Sco remarks of Ch. J. Reid, in Cuvillier and Stanly, pp. 33 and 38 of Mr Clierrier's factum. m f..i t: I ' 1 ' - ♦ 60 h proposition of the attorney general, all higher rents shmild be redueed. The opinion that a uniform rate had boon ch- tablished by the old laws of this eolony was at one time so general, and still has so many advocates, that the attoniev general wisely decided to bring the question, as to whether, either by law or otherwise, a fixed rate ever had been es- tablished, directly under the consideration of this convt, so as to have a formal judgment on the subject. The propositions advanced by tlie learned a'lorney gene- ral, as I understand them, .are that the arret of 1711 irrevo- cably fixed the seigniorial dues at the rate then established in the country ; that that rate (being the rate mentioned in the 14th proposition) continued to be observed until the cession of Canada to England ; but that, soon after that period, Sei- gniors charged higher rents, and that these should be re- duced to two sots, per arpent, as mentioned in the 25th pro- position. And the contracts of concession, filed in lliiseaii! 61 h The rents vary in the diftbrcnt seigniories and are 'lot al- ways by any means the same in any one seigniory. In or- der thcreiore to ascertain the clillerence between the average rental stipuhited in the contracts, which are admitted to bo le^al, and the rent which imder the same contracts would ho payable according to the rate contended for by the at- torney general, I have caused the rental to be calculated according to the two rates, valuing the wheat in both cases* in the manner directed by the seigniorial act of 1854. That is to say, taking the price for the last fourteen years (1) and striking out the two highest and the two lowest years. By this mode the price would seem to be five shillings and live pence half penny. A price, I may observe, conside- rably below the present market rate. The first set of concession deeds ])laced before us, are those for lands in the seigniory of Montreal. I exclude all the deeds not containing wheat rents and also all those after 1759, and I find the number remaining is only 20. By these twenty deeds 1,218 arpents of land were conced- ed. The rent, according to the maximum money rate of the attorney general, viz, at two sols per arpent, Nvould be £5 1 6, and according to his rate in wheat and money, it would be £6 16 4;^-, whereas I find by the actual contracts it would amount to £9 11 0. (2) The next two sets of concessions in which wheat rents are stipulated, are those made in the seigniories of Isle Bizard and Isle Perrot, and I have pursued the same course in re- lation to them with the same results. We have 12 conces- sion deeds of lands in Isle Perrot, by which 924 arpents were conceded. (1) The prico has been taken from the books of the seminary of Gt. Sulpice at Montreal. ('-) See Appendix no. I. :v , ' M- 62 h According to the two sols rate per arpent, the lenta! would be £3 17 ; according to the rate of the attorney general, payable in wheat and money, the rental would be £535; whereas according to the contracts the rent is equal to £8 5 U. (1) For Isle Bizard we have 3 deeds ; land conceded 230 ar- pents ; at two so/s per arpents 19s. 2 p. ; at wheat and money rate of attorney general £15 8; according to the contracts XI IG 7. (2) If the rents payable under the above mentioned deeds of concession were reduced to the rent payable partly in wheat and partly in money, as mentioned in the 14th proposition of the attorney general, the Seigniors would thereby lose nearly one third of their income ; and if the rents in the *iamc concessions were reduced to two sols per arpent, the Seigniors would lose nearly half of their income. It is to be observed that the contracts upon which those calculations have been made, are not contracts entered into after the conquest and called in question as illegal. On the contrary, they are contracts made before the con- quest ; contracts which not only never have been question- ed, but which are produced by the crown officers as being legal, and as proving a legal usage, to be urged againf-tthe contracts subsequently made. These statements furnish additional evidence, that, even before the conquest, seigniorial rents were not uniform ; tnd they establish that so far as regards rents payable in wheat, the contracts produced, not only do not prove, but disprove the maximum money rent and the wheat rate, contended for by the attorney general. I shall now terminate my remarks on the questions of the attorney general, relatinj to the cens et rentes^ by recapitu- (1) See Appendix no. 2. (2) S«e Appendix no. 3. I I 63 /i ■ating briefly the concluHion at which I have arrived on the subject — and they are as follows : Istly. That, under the Custom of Paris, a Seignior was not obliged to concede any j)art of lusjief; that, wiicn he did concede any portion of it, a litre de cms, tlie conditions of the concession deed, hfrif d ecus, as to the rent to be |)aid, were purely matters of agreement between the parties who were not restricted, as to their contracting powers, any more than they would have been in making any other contract. 2dly. That none of the seigniorial titles or colonial laws, snierior to the arret of Marly, seem to have subjected Sei- gniors to the ol)ligation of sub-conceding their lands ; that, whatever doubt there may be on this point, it is certain at least that none of those laws or titles had any tendency to establish a fixed rate of cens et rentes, or to prevent a Sei- gnior, when he did concede his land, from securing for him- $elf the most favourable conditions that he could obtain. 3rdly. That the arr^i of Marly subjects all Seigniors to the obligation of sub-conceding their wild lauds ; that the arret of 1732 prohibits all sales of wild land held under the sei- gniorial tenure ; but that neither the provisions of those laws, nor of any other law, were intended to prevent or ever did prevent the parties to a deed of concession, from effectually agreeing upon any rate of rent they thought fit. 4thly. That of all the seigniorial grants in Canada, in four only is a rate fixed, at which the Crown, as Seignior suze- rain, could have compelled the grantees to sub-concede their lands. That during the whole period of nearly a cen- tury and a half that has elapsed since the date of those grants, the Crown has never attempted, either before or since the conquest, to enforce that condition ; and that the (knsitaircs, who were not parties to the grants containing the condition in question, cannot avail themselves of it, foi the purpose of defeating contracts entered into by them- selves or their predecessors. >' ' \i 1 '■■, 64 h m The great controversy between the Seigniors and Censi- tm'rcSy is as to whether the annual rents stipuhited in con- cession deeds are liable 1o bo, reduced. Tiiis sul)jc('i is brought directly under our consideration by the 25th (|ucs- lion of the attorney general, (juoled at the conunenceinont of these remarks, which is in the Ibllowing words : " L'lKJcr " the law, as it existed in this country iuuTiediately hcfon,' " the passing of the Seigniorial Act of 1854, have C'cnsi- " tains, to whom seigniorial concessions have been niado, " after the cession, at higher rates than those which were " customary before that time, a right to be relieved from " those onerous dues?" !•■; M' The question is one, in ail respects, of vast importance, and has been much debated for the last half century. I have therefore deemed it right, however tedious the task, to state my views explicitly on every point connected with it, and to explain fully the grounds upon which I am of opinion that the Seign'ors are legally entitled to the rents that have been agreed to between them and their Censi- taires ; and therefore, that the question of the attorney ge- neral above quoted must be answered in the negative. U I I.; < ■ ■-:,'. >l .Di, S 65 h irs and Ccnsi- \n\hi\vd in con- 'hi« sulijccl is r iho 25th ([uos- ;omincncein(;nt k'ords : " Under edialcly bcl'ori! )4, have Censi- Lve been made, sc which were ic relieved I'roiii asl importance, ■ century. iver tedious the point connected in which I am of itled to the renti- and their Crnsi- the attorney gc- u a o o w ■H (U 3 _; •fr|.I«llt> •sn('i|iio a V 3 a _ 4^ ^ > ^ - a -w *-• «^ > .3 R J I— i": t- ;: kt5 m in »n oj - ir; h. i- r- - i ic h- •H|Oiirfn<[ : ^ i -H - ^ : '-^ Oi ts t-. M t^ n-ics :; in:; ::if;:: :;ii3m>n- - im C'(^^CO'-*C^^-*'-^'-^"-^"-^CJ^Hr-l^^ 1-1 cj ri — i-i 2 •^ - ti to m CO - CT> ; o a, cc o r^ re n cc CD o r'5 Co sopgjodns— op — ;uo.ij ui "Op — qjdop n; s^aadjy OOOOOCOCOCCDO'l^OOOOOOO — • ■M rf n to c^ ■^ c) c< rJ CI ro TT ~t> re ri M t ■* cm ro OOOOOOOlCOOOOOOOOOOOO M C 1 M r^ :0 CM (N -- C-l I>J C^ C» — ' C^ IM C-l C< (M CM C^t Tc/^cDfc -^ cci oa^ o cc^ o o o o oci co o a; * :7- J3 a 2 » s 5 3 2;« ^Tt^ocDicC'imcct^'^cv^reocD.-H-^Tji r-< CICvl CMCMCM C-1 CM _c«i-Hi-i,-t IS 4- v;: I i« -l:v; . ■(■ f G6h Rent of 1218 arpcnts at 2 50/4- per nrpont £5 1 C Rent according to wheat and money rate of Attorney-General: say 121Harpenls at 1 sul per art)cnt *- '^^ •' Ccns -^ ^ i Bushel of wheat per 10 arpents 4 ;3 Oi £6 IG Gi Rent according to contracts : cash 1 1 GJ Wheat, 30 bushels and ^ at 5s. 5d| 8 G 5^ £9 11 Recapilulation. Rent at 2 «o/5 per arpent £5 1 G Rent at money and wheat rate oi At- torney General Q \Q G a- Rent according to the contracts Oil 1 .7 - ■ s '!■■ i yi ■ I'-Y I , , ! - ■4 "^^ -' ■V. f .' II., J'-' 1 i u. 67/? .£510 2 10 " 3 9 4 ;] oi £G lU ^ 1 I Gi 8 G 5i To 11 I G IG Gi II 4J o u o ^ 4j = C I. ♦- c n 10 a p; ■simno •suounu •Bioi[sniX rifi.: ft;: MMCiciMripi ■M ® 'J — O T — M -4:1 in o-< 1—4 CO 2 to -4N (, (- IR t- 10 Tl CJ 1- 1^ »~ (« 1- O — in c- -.or^ in — -n rn M M ^ ,-■ -triH'TI -41*r>^ ^ 'J? ■^:'-4^-*^*^?»-4t< M CI in ri in ■-• -r (N f> ri iM r» o •b'liunf) -non'"!') ■siniisny ::-3ri ei m iM in -1" -t M 7! ri c( c> cri soiogiadns — op- qjdop ui — op- •^uoJT nt siasJjy OOOOOIMOOOOOO •jHO'MCDC'JOOtCVDtitoo oooooooooooo ^ C^ CI CI s a o o o ? § < ^ >> "^ a 1^ Cl — CE t--. t-4 I— 4 I— I C* cS O. O )CJ l>. CI a -4:1 o d a to a n -a fe 2 o £5 ^cSpf >> -s .S3. '3 ^ o to ^ -T, __. ^ r) c c n cs . — a ■- a fl 01 r; V ,1t GSh .a o o E § a . n •■(■ o — ' ■s ■- *^ o tea •S-5 •I'tiii"?') •suoiliil) ■B19ii* <— < 10 10— > »— 1 to O o = o O-H 'H fl ;0 1- O •♦) • 60 13 ■B)aiui,) ■BUOllBD ■sistisnii £ oot- Pi ^ tf' ■: - M in s '. :: : _ SBiopailn'i— oil— SSS jg5 , „„ ,ooo tjvlop ni — T — |^' ="' '^'' -(nojj ni ejuodJV »r CO n CD tn in o in 1"- "C t- ei P j3 a ^ o "3 o >n c< re (M 1-" r o a C5 fl »4 cr en . to ro e ■• s fl CO >-. n w ■ Cu u ■ ti '. o . ■* ■ d. : o it o c O c tc -2 e ai5 " ■ M . 0" 2 • "« • c* to ■ § • to a ■ ■ t- ^ : -^ • ^ 1 :« '. lO § :i? 0^^ fl 2 fl c ^ §•« £ ^ t" rtoSi r^t ^- c M f 1 - lO-" _ o-- T M 'H 69 /t I* A It T a. Rf'scrvatiofis and Vrohilnliunx. Diir (Ircisioii !is to llic reservations aiul |)r()liil)ili()iis, wliirh lorni the siihjcct of tlio 30tii and two lollowinijr ques- tions snhniilted hy the Attonvy (Jeiieral, imisl turn upon the arret oi 1711 : lliat hein;,', as J have already shown, llie only ac t of a lei^rislative Jialnre regiilalini]; the concession of wihl land by Seigniors ; and I'avini^ already e.\|>lained my vl(!ws as to the general nature aii to deterniin(>, is simply whether covenants voliuitarily cnter(Ml into !)etween the Sei- gniors and their C( /isitaiirs^ (covenant-, which, so far as I know, have constantly been enforced by all the tribunals of this province) an* now to he declared absolutely null and void, irrespective of the circumstances under which they were made. We must hold, '. illicr lliat the parties to a deed of concession had the sartic liberty of contracting, excepting as to what the law expressly prohibited, as they had in making any other contract, or that the law deprived them tQ. al' )f tl le i)ower o f sul fa )|ectin''' )f th land. concedf 'I en crnsivc. ufii/ cn framed, or with reference to the ollicial correspondence which preceded and followed it, cannot be taJcen to have the eliect of annulling the reservations and charges now in .-.AK I 70^ dispiilc. Tlic ()bj(>cl, of llic law was to promote tlio sell le- nient of the eoviiilry ; the evil complained of in Ihe ])ve;un- ble is, that this had been retai'ded l)y an attempt on the part of certain Sei.'^niors, to exact a consideration in moncv in addition to the usual rents, when lliey conceded their wild huids ; and to remedy this, the enaetini^' clause com- pelled Seigniors to concede their wild huids a litre dc rcde- va/iccs and without enacting any such capital or bonus. The ct)ncession de(>ds, now impugned, cann(;1 l.)e liekl cither to have IVnstraled the obji-c!, (>r tt) have violated the letter or even the spirit of the law. It is not denied that the land conceded has betm M;ltled and improved, \\hicli waf< the main object of the law ; and the deeds, upon the i';iee of them, show that they were made a litre dc rcdcvanccs^ and without the exaction of any bonus or other consideration of that kind. It is contended, lioweV(>r, that the King, by ordering tin Seigniors to concede; a litre dc redevtincet;., virli:a!ly forbade any charges or resi-rvations which did not come within the meaning of the word redevnnces., taken in its most limited sense. But it appears lo me that the words a litre dc re- devancrs were used merely as oj)])()sed to what the law pro- hibited, namely the exaction of a considernlion in money, and not :is excluding every j)ossiblc kind of reservation or charm! in favour of the 8ei.''nior. The words of this law, which, we must recoiled, ch;in- ges the common law and cuts down titles, ought not to be extended beyond their phi in and ordinmy meaning. They must be interpreted strictly, ami thus inter|)reled, they will not be found to allbrd any grovmd fur treating indescrimina- lely as null and void, all tluj charges and reservations in question. The view I take of the ar/et of 1711, is much strengthen- ed by the ollicial correspondence and other documents of the same period. 71 h '111 not to bo Prior to the arret ol ]Mnr]y, Mr. Kaudot had informed the authorities in Franee, that thi. Seigniors, in Canada, had conceded their lands subject 1o the rc/raii convcnlionncl^ to tJ)C hanulile dc four and to other charges which he thought objectionable ; and he had ))roposed, that His Majesty might in the huv which lie (Raudol) wislu-d 1o have ])assed, insert these words : u-ilhoiil hdviii'j; ra^ard lo the r/iargrs, clai'scs and conditions contained in fJuir title deeds, that ihv dues shall ont ij he paid (leeordin^^i; to vhid voiitd t>e eon- iained in the said declarations of the Kin,^\ We find ho- wever that noil her the words suggestetl by Mr. Ilaudot, nor any other to 1 he snme efFect, were adonlrd by the Kino- • and yet, we are now required to int(>rpr(n the arret as if Randol's suggestion had been adopted, instead of having hc.en [as it was) rejected. The correspondence and o/Iicial documenis moreover sub- sequent to the arret of 1711, show most clearly that re- servations and charges >ueh as those now in controversy, were not I hen deemed to be null and void under ihal law. From the report of the Naval Council in Franee, bearing (late May 1717, we learn (1) that the intendant Begon, about five years after the passing of the cerret of Marlv, aijain In-oughl the subject of the seigniorial charges and reservations under the attention of the home government. The report of the Naval Council begins by staling : " Mr. Vy^ii,o\-\ last year observed that, intlie i of concession \vliieli !)roprielois of seigniories grant lo lliosc; who lake land therein, iIk y inlroduce a variety of o1jlig;i!iuiis con- "trary to the cuslom and 'o the scMllement of llic colony." Among (he obligations of which IMr. Begon conq)lained, are tile roreees, ihe retreat conventionnel and the reservation by Sei-niors of " the timber necessary for their houses and " llieirlniildings and the \\-ood necessary for their fuel and " linil^ei- fit for .sale."— The iej)ort closes with these words : " V. u u 1,1) 4 vol. S. 1). p. 14. * i 72 h " And inasmuch ns it is ihc intention of tlic council tliattlir " clauses inserted in the deeds of concession M'liicli arc " contrdrji to the pron'siot/s of f/ir CksIoiu of Paris shall be " deehired null and void, it hcromi'S ncccssari/ lliat liis Majcslij " should make, a drcrva so ordering /7." A draught of llie pro- posed decree immediately follows the report of the Council. The proposed decree recites tlie edict of lOGJ, ^\■|li^•li csta- blisluMl the Custom of I'aris in the colony, and d' dares " that, notwithstanding iIk; ])rovisi()ns of tlu! said edict, se- " veral j)erst)ns who hold lands i/f. sri'/t/ior// in New " France, impoee in the contracts of concession of the land.^ " which they grant, very hurthcnsome cldiises (uid servihidi:^ " contrarji to the provisions of the said Custom " and preju- dicial to the settleiiicnt of tlK> colony, such as the days of husbandry service, rf>r/'t''',v, the retrait eonventioinnf Ihc reservation of all wood necessary for their houses or lor other works or for fuel, the reservation of all pine and oak trees that may he foimd in the grant, and various oilier reservations enumerated in the preamble. To remedy tlioj^e abuses, the draught in (jueslion contains an enacting claust> annulling all the objec'tionable reservations and prt)liibition<. This document, ahhough merely a draught, seems to nie of very great importance. It shows that neither the autho- rities in the colony nor those in France, attributed to the o^VY'/ of Marly the elTect that is now proposed to be given to it, of making void all resiu'vations beyond a mere ainiual rent. Mr. l?egon, five years after the ])assing of that r;rr'7, comj)Iains of the reservations made by Seigniors not ((■< luiit'^ contrari/ to the arret (f Mart//, btU as being contrary to the Custom (f Paris ; and the council, in like manner, propo-eJ to prohibit those reservations not as being at variance irilh the arret of Marlij^ but as being contrary to the Custom nf Paris. And one most important point, at least, this dranglil of ay/"<7 estaldishes conclusively, it i^ this: thai neither the inteudani in Canada nor the council in France conleni- plated the possilulity of setting aside the reservations in 73 /t question under the fin-c'/ of Marly, and yet that is exactly what is now being done by the judgment of a majority of the members of this court. The interpretation which was thus put u})on the arret of marly at the time it ^^■as ):)ass('(l, accords (so far as I know) wilh that which it has invariiibly rcccivcc] from oiu- own courts. I am not aware that the n^scrvations in question iiave ever been objected to in any judicial proceeding since the conquest. We all know that from the earliest period, within our re- collecti(.M down to the passing of the seigniorial act of 1854, oppositions founded on these charges, h.ave been constantly allowed, without any dilliculty ever having been raised on the part ciUierof the ]Jar or of the IJench. We also know that lands r« rn^v/rr, sold under the aulliorily of our courts by sheritPs sale or otherwise, have, gcn(>rally speaking, In'cn so sold subject to the charges and reservations now im- pugned ; and if these charges and reservations are now declared null, the result will be, that those who purchased lands riicciisivc under tlie authority of the courts, will receive more than they paid tor ; whilst those who have purchased seigniories under the same authority, will receive less than Ihcy paid for ; that is \o ^^y, \\\g Cemitaires will be dis- charged without any payment from oljligations which they assumed, whilst Seigniors will be deprived without indem- nity of the rights to which they were entitled by reason of the same obligations. The opinion on this subject given by clnef justice lleid in 1812, before the seigniorial commissioners, is entitled to great weight. lie says: "Quanta une foule d'autres re- " serves contcnaes dans les titres de concession, telles (jue le " dioit de banalitc, de faire reparer le clieinin du moulin, " de couper et jn-endre le bois sur la terre pom- certains " objets, le droit de retrail et tons les autres droits, charge.«i "et reserves imposes en sus de cens ct rentes stipules; '' eonune toutes ces charges sonl d'une nature arbitraire et in- " cortfiine, ot qu'cllcs sonl d'ailleurs les cliarges les plus " oiiereiiMCs ct, les i)lns vi'xat(.)ires du rogiine I'codal, on " dcvrail les cstiuuir an })lii.s bas laux possible. " (1) The learned judge ^vllose words I have just qiioled, was one o'' llie inenil)ers of IIk; court of King's bench for the district of Montreal lor a ])criod of 30 years, during liik'on of \\hich he presided as chief justice in that court. The charges find reservations now in dispute must have come very frotjuently under his notice during every year, pro- bably during every term of his long judicial career; and yet, ahhough regarding them as he evidently did with (W^- favour, it does not seem even to have occurred to him that they could be treated as null and void. Like the authorities in the colony and in France, at the time the law was passed, and like his predecessors and contemporaries on the bench, he failed to discover that the re- servations in (jucstion were })rohil)ited by the arret of 1711. I wisli to guard myself from being misunderstood on this j)oin1. I have not asserted and am far from maintaining that the reservations mentioned in the questions of the At- torney General ought to be held legal in all cases and muler all circiunstances. Some of those reservations might render it impossible for the settler to cidlivate and improve his land, and in siich cases tliev ou<>ht to be held null as beinu: contrary to the jiolicy of the knv. In like manner the legality or illegalit}^ of the ))rolii- bitions mentioned in the questions of the AUoniey General would depend upon the circumstances of the case in wiiieh they were matle. If, for instance, a Seignior not having a saw mill, were to covenant that none of iiis Censifdircs should erect any such mill, I think the covenant would be iUegal (1) Kcport of coimuissioners in lS-14, p. 237. 75 h iis hciim'' in resh. inlof IracU; ; bnl, on tlio other hand, where, iiicoiistHineiiee of Ihc Seii^aiior having hiinsell' a mill or irom any other such caiiwo, the covenant was made lor the nroleclion of the Seignior's just interests, I would hold it nuobjpctionable. In line I do not hesitate to say that I view those resor- vaiions and prohibitions in the same unfavourable ]ight in which they were regarded by the bite (diief justiee iieid; but sliU as the biw has not expressly prohibited them, I can deelare them to be illegal in so i'ar oidy as tliey i)lainly coiilliei with the poliey of the law, which was the setlle- luunt and imj)rovement of the wild lands of the eolony. £* A 11 T 3 . Banalite. Tlip right of banal itc is one of the most important rights enjoyed by Seigniors in Lower Canada ; ;md it is important, iioloiily on account of the profits resulting from it, but idso iiiconsequonec of the large amount of capital that has been expended with a view as well to the present (mjoyment of thai right, as in order to secure it for the future. There is however, but one j)ractical question of imi)ortance, con- nected wiili this subject, in relation to which, according to myviews, any doubt can be raised ; and that is whether Seigniors, having the (boil dc banalite, have as an incident, tiic right to prevent all other perso,.s fron:i building grist mills within the limits of their seigniories ; and to cause sncli mills, if erected without their consent, to be demolished. The existence of this incidental right has ])cen very posi- lively denied by the learned council for the crown; audi, lliei'efore, think it necessary to show that the authorities on I'lis subject are so numerous and weighty as really to leave "0 room for doubt on the point. >..'-i 16 h I deem lliis citation of antliorifics the more necrssarv because tlu; incidental rii,'lit controverted (which is not one of nrionde Pansey, Herve and INferlin iiic (ifim greatest weight ; and in addition to these, there w ill hr found, in the following list, the names of many of ihc es- teemed commentators upon our own Custom, and of inanv otJK'rs of the old writers usually cited as authorities. Ilenrion de Pansey, vol. 1, |). 171, says : — " Ja-s elielsdc " la banalitt"; consistent principalement en deux points, b- " ])remier, de contraindre les sujels de venir au nioiiliii-lKi- " iial ; le si'cond, iTinterdire <\ toutes personnes <\v vun^- " truire dans I'enclave de hi banalile, des moulins, elc." Same vol. p. 21G : " Cenx (jui sonl assujettis, s.)it p;ir *' convention, soit par Paiitt)rite de la loi, a moiuliv a If.-l " moulin, ne jjcuvent j)as en batir meme sur h's (viiix imi " sontdans leurs domaines et ([ui leur appartiennent, |)anr- " que ce serait cnfreindre la convention ou eluMpuT la loi, " parce que Passujettissement a la banalite de moulin empoik' " naturellement Pabdication de la faculte d'en constniiip." Herve, 5 vol. p. 193 : — " Un troisieme elTet de la lianalitc " de moulin est de donner au Seigneur droit d'einpeciKT il' " construired'autres moulins dans les limites de sa banaliit'." Herve refers to Basnage et Poulain-Duparc, who report ilnee arrets on this subject. Merlin — Rep. verbo moulin, vol. 21, p. 9, art. 1.—" Ki'gl''? " du droit commun snr la faculte de construire des niouli:'* " snr son j)ropre Ibnds." — " II faut distinguer le eas oa 1" " lieu dans lecjuel il s'agit de savoir, si un partieiili"v qui " pent batir rm moulin, est sounds a une banalit;'', cKav'' V < e more necossarv ties laoulins, clc. assujellis, soil. p;u 77 /i •' ie fiis, ou ce lien esl parfaitcMnenl libvc. Dans le prC' '• wl baiiiil, il nY'sl, ])lus perinis do ricn fairo (jiii tendc a • niivcr Ic i)ro[)ri(''tain' des profits ([iii doivcnl lui en vonir. "Or n'est-ce pas donner nno alteinte manilestu (jue dc se •• pcnriellre la coiistriidion d'un autre iiioidiii quel (ju'il ■• suit ? " Cliiiinpionniere, p. 61G, no. 3G1 : — " La restriction la pins " larjrc el la pins absoliie du droit de constriiii> moulin re- ■' sullait des banaliles ; Id oil le Seij;neur avait droit de mou- " lin banal ^ nnl autre ti'en pouvait eonstruirc.'''' Soe also — Pocqnct do Livonioro, p. 608 ; — Freminville,, ol. 2, j). 355 ; — Uactjuet, Droits do Jusliee, vol. 1, p. 428, cli. 29, no. 4 ; — Despeisses, vol. 3, j). 229 ; — Ancicn Deni- ^ait, verl)o Ijanalile, no. 5, j). 255; — Lacombe, same word, no. T ; — Giiyot, Jlt'|)er1oire, verho moulin, j). G85 ; — satne, vi'i'bo l:)analite, p. 112; — Xouveau Denisart, siuno word, vol. ;3, p. 150, § 4, no. 18 ; — Charondas, ed. oi" 1578, Com- mentary on Custom of Paris, j). 117. Brodean, Commentary on Cnstom of Paris, ed. of 1G58, on art. 72, p. 770, no. G ; — " Le Seigneur etant fonde en '^ litre mluble de banalite de moulin .soit a can ou k vent, " il peut contraindre tons ses banniers d'y venir moudre, les " cmpecher d'aller aillours, ?n de eonstruirc aueun moulin " a hie dans letenduc de sa banalite. ; et sHIs en ont fait hutir • mns son, consenlement et sa permission^ les eontraindre de " les demolir, ctc.''^ Duplessis, Treatise on Custom of Paris, vol. I, p. CG, on art. 71 : — " L'eli'et de la banalite consiste en trois points. " Le ])remier, de contraindre les snjets de venir an moulin, " etc. ; le second, de lesempecher d'en eonstruirc dans son '' ressort, etc." Ferriero, Custom of Paris, vol. 1, p. 1038, art. 71, glose Ire, no. 13 ; — Le Camus, on same article, vol. 1, Custom of \f. I -1 . , i '!" . 141 -i 1 V 78 /i Paris, vd. in-folio, p. 1017, no. I : — " I/eHl-t dc la hanaliir " est ([u'cii iittril)iiant \v, droit au Scii^nour, il doniic cii humth' " tonips I'cxc'lusion a Ions Ics autrcs ; ainsi ccliii (|ni ;i i,;,. " nalitt'; do inovdiii pcul ciiiprclicr loiis Ics aiilrcs (Tra bfuir " dans tonlo I'etenduo do yon Icrriloirc." Lg Maisfrc, Commentary on Custom (^f Paris, sjinic ;iii. p. 92 ; — Auzancl, Commentary on same Cuslom, [). o2.~ The judgments of our own eovirts, on this jjoint, an; in pcrfeet harmony with the opinions of the; authors above cited, as wmII be found on reference to the following cases, in each of which the incidental right in question A\as for- mally maintained. Tiie first decision on this point appears to have been ren- dered on G Se[)t. 1771, Court of Connnon l^ieas of Quebec, No. 71. — Dame Genevieve Alliee. for her minor son, Sei- flfneur do la seigneurie de la riviere dusud vs. Mieliel Ijlais. The words of the judgment are : " I. a eour declare le moulin du dit Michel IJlais etre indumcnt ctabli, et vn con- sequence condamne Ic dit Blais adeinolirson dit muuliueta le denaturer de faQon (|u'il ne puisse servir a moudrc dii grain, etc." This judgment was confirmed by the court of appeals on 23rd December 1777. 2d case. — Three Rivers: Munro cl al. vs. Lamy, judgment 27 Jan. 1820, confirmed in appeal, 30 April 1821. 3rd case. — Montreal : Baroness of Longiieuil vs. Charles Frechette, judgment 10 April 1820. 4th case. — Montreal : Seminary of Montreal vs. William Fleming, judgment 20 June 1852, chief justice Reid, justices Foucher and Pykc. 5th case. — Quebec : Noel vs. Langevin, judgment 20 Oct. 1823, chief justice Sewell, justices Kerr, Perraultand Bowcn, I t'; art of appeals on 19 h Glh rase— TIuvc Rivers : Dolery vs. Clatiyli, jiuli^qiif'nt 23 Soj)!. ^■J'). 7lli cii.-^ 3. — Tlu! riglil to those rivers passed, not as inci(iciii:n lo the iii,'hl()f lidnhjiislhr^ hut as aeeessory to the Jmitl irraiiled. Aiilht)i'ilies on tliis point. § •!. — Lund piisses as eoniph'tely iiiuh-r a i^'rant fti rcnsiir, as it (hn's under a grant en /ifj\ exc-eplini,' as to honoiarv rights; the right lo unnavigahle rivers is not an lioaoraiy right; CVv/.svVa/yv'.v therefore entitled to lauKivigable river-; \snthin liuiits of their own hinds, § 5. — Thisconehision a|)j)ears \o be at varianee wilh llu; state of things which I'xisted in P'ranec, at the time of tlic freneh lie volution. Observations on this discrepancy. § 6, — XoticH! of ancient anlhorilies cited in support of lli" claim of the Seigniors as Scig'/wurs fcothiiix. § 7. — Notice of the proposition that the courts under tlu co(h' ciril and the majority of the modern freneh wrilcis, are ()pj)oscd to the claims of the riparian proprietors, and of two other propositions advanced on the part of the Seigniors. § 8. — Conclusion. — § 1. There has been much controversy as to whether under the code ct l'/' I c.y en unnavigable rivers me susceplible of being private {)roperty ; but whatever donbls may exist as to the bearing of the modern law of France on this subject, it is indisputable that, before the Jlevolulioii of 1780, unnavigable rivers in France were universally held as private j)roj)erty, subject to certain easements and ser- vitudes in favour of the public, and that the state did not j)retend to have any right of ownership therein. lienrion de Pansey, writing in 1789, says : " Lcs rivieres " sont absoiumcnl dans !e commerce, le proprietaire pent les < i (1) I confino mj' observations to the eapo of ur navigable river?, as tli": que relating to cuvignbb rivers present comparatively little difficulty. ■it it'll' 1 support of ill" : " Lcs rivieres ■ii't.iire pciil le« 81 /t " vnndro, los donnor, les ('ichangcr, les iiirrrmpr, cola se voit " tons lcs jours." (1) This is oik; of llic few points, on the subject of unnavi- gahle rivers, respecting which there can hardly be said to b'Miny differenci! of opinio'.i iUMong the ancient writers; to use the words of liayiiiond Bordeaux : " Quant aux aneiens " jiiriseonsullcs, ils n'avaient jiiniais songe a une pareiile " question, et ils ne j)araiss(,'nt pas avoir doutu de la pos- " sibilite de la propriety'," (2) It is also, I think, well established thai tliese rivers were, for the most i)art, held by the Seigniors in France, either hauls-juslicif'rs' or /('Off aux, as their private property. § 2. — Such being the case, it appears to me to be clear, ihcit when the king of France made grants of land in Ca- nada, the unnavigable rivers within the limits of the land so granted were included in the grant. It is neetllcss however to dwell upon this point, as it is admitted both by the counsel for the Seigniors and by the counsel for the crown. Tlie piviteniion of the Seigniors is that the unnavigable rivers passed to them with their seigniories, and that they still continue to hold them as their own property, notwith- standing the subgrants made by them of the lands through which those rivers How. The counsel for the crown contend on the other hand, that as the unnavigable writers passed with the land from the crown to the Scsignior, jo afterwards they pasi^ed in like manner from the Seignior to the Cemitaire. § 3. — As most of the grants of seigniories in Canada in- cluded the right of haute justice^ it becomes necessary for the decision of the highly important point thus in contro- versy, to ascertain whether these rivers passed to the Sei- gniors, in the first instance, as an accessory to the land, or (1) Henrion de Pansey, Die. F6o. des eanx, vol. 1, p. 669, § 13. (2) Raymond Bordeaux, p. 75. Seo also Daviel, toI. 2, p. 12. 82 /< ii, .' (, , l' • ■■ < aH !in incident 1() the \\( iKiitfcjnsfirc. T\w irn|)nrf;uice ol" lliis (MKjiiiry is obvious, not only as IxMwccn llic SciiinioiK and dicir (.'cnsiftiiris\ hiil alst) as hclwccn llic Si'ii,Miiois and tli(! crown ; between llic Seiijfniois and dieir Criisi/nirrs^ becaus(! if tho ownership oltlie rivers be an incident to the right o{ hdnlv justice^ it is (dour that that ownership could not liave passed from the Scdgniors to tla; CcHsilaircs, as th(! latlcr never had or could Irtve the right of hatitr-jiis'ice ; as between the Sidgniors and tfie cri)wn, l)ecause if ihi! right to th(! rivers be an accesst)ry to the right of //r^///^' y//,s7/Vr, it maybe contended t!"' tf.e Sei<'n:ors have no longer tl.c prin- cipal right, (1) and therefon;, that they have lost the inci- dental right to the rivers. On tius question :i - to the ovvncrship of imnavigabJc rivers, the most eonllicting views are cxpress(;d i»ytlieol(l french jurists ; some; maintaining that tliey belonged to the Seigniors hau/.s jusl' u , hei-,> liial they were tlit; projjcity of the Sidgniors feodaux ; and a third chiss holding thai llic ownership of these rivers wholly depended on title and possession. After giving to this subject the utmost care, I feel sa- tisfied that there was not ihro'.i ^l.cut those i)arts of Franco, known as frs p/ijjs ron/iimiers, any general lawgiving either to Seigniors hants-jusliciers, or fcudaux^ or to any other class of persons, an exclusive right lonnnavigable rivers. (2) The authors, who are generally relied upon as holding that the Seigniors I/u/i/s-jusficiers In France were entitled to the unnavigable streams within their jurisdiction, are no doubt numerous and deserving of n^spect ; but it will be found that many of them wrote with esjiccial reference to (1) Merlin, Questions de droit, cours d'eau, vol. 4, p. 39G, § l,~Brus3eli, od. of 1829. (2) Dayicl, vol.2, p. 12. " Et mi milieu do oe conflit d'opinions contriidR'toirc?, " 111 seule conclusion c^u' on puissoudniiter, c'est qu'on no peutetablir lA-de-ssus aucune " r6jflo genoralo, ot quo tout cela depend des litres et de la posscssi(.n." See also, Ancien Kopertoire, verbo riviere. — " On doniande si les rivieres qui no sont p^i.-^ lyi- '■ vigablos appartiennent aux riverains ou aux Seigneurs. Mais il paruit qu on " n« peut etablir a cet ogard aucune r6glo goneralo et quo tout depend du title el " de la posseseion." — See also other autorities cited by Championniero, p- C98. mh importiimt' ilic ScijL'niorM Ici^'uiors iiiid CVv/.vjVa/r'.v, icidcnt lo tlu' liip could nol (, iis \\\v liiltfi- r-Jtis'ii'C ; as if till! rifj;lil to Nte justice^ il ngcr tl.c pi'in- lost llic iiK'i- " nnn;ivii,'abl(! (cd l>y lilt' ultl (•U)ni,'i'd ti' ill'' •o tlu; propiily i.ldiiii,' tliiii llio on title ciud •ure, I feel sa- Kirls ofFmncp, ^v giving eitlu'i lo uny otlii'v [able river-*. ('2) Ipon as holding ^•oro entitled to lid ion, nro no but it will be [il reference to i l,~Brus3cl5, od. of (lions contTiidiotoirc?, |,Urla-(lessus aucune Isscssi'.n." ."^co "'»"• 1 qui nil sont p^is' n"- Klairi il parait ([U on L depend du title ei Inniero, p- 09S. tin; /iffifS tic (hunt errif. As inslfincj's, I may inenijon Henrys (I)., Hoiilaric (2), Despcisscs (;}), liretoiiiiier (1), LaKoclielluvin (.")), Salvaing [(i) and Serres (7). Hut those author.^:, who dislingiiirdi between lh< /tai/s dv. droit fUrit and lh(! pai/s cotttifiniurs, are fai IVom asserti/i^ that any siudi rnle existed in the /K/;/.» fA rp>////wjif'. ^inyot, who wrote in 17.'JH, alter observing that tin opinion of liaccpiet (whieh is opposed to iliu pretentions of the Seigniors) is contrary to the pratit/nr NUiirrst/fr in France, athls : " Ks pays de " (h'oit ecrit, eoMunnneiiient eijes (ces rivieres) appartien- " nent anx h(tnh-jiisti(iirs. Duns Ivs piti/s dc voiitiaiie eUes " sont generalenient i(v droit de /'V;/'(H)." Iferve, who wrote in I7.sr>, in the I'ourth vohiine of his work whieli purports \o \)v wn ('.vftoaition dr. hi doc/rinf; ft}od(i/r, jxirtit'uliiirpinmt (i/)ji/i(///('r i) hi, roiftfiitie dr Paris^ ol)serves : " II (>st a rc- " manpier (|ne les rivieres sont en droit cinl, pdrtui^r /c.s aulrirrs dex jiaijs de ^'- coiitiimr ; (10) \mi in iIk^ foHowing part of tlie same section, lie supj)orts with his own opinion, which doubtless is entitled to great weight, the right of the Sei<^'nr?irs feo- davx. We thus see that lierve and llenrion de Pansey, who both wrote during the very last days of the existence of the feudal tenure in France?, and wdio directed tlieir atten- (1^ llonrys was avaaU du Roi ait bailUa^c de Fores. (2) lioutaiic, prut'ossDr of law in the univorsity of Toulouso. (3; l)os|M'is?('s, (irncat de Monlpcllier. (1) llretoiiiiifr devoted himseli' principally to the ttudy of the Knnian law and (He umiiv:' dcs j)(i)/s dc droit rcril. See page 9 of the notice whieh precedca liis work "Rei'ueil de Jjretiinnior," (5) LaRochellavin at one time cnnseiUcr an parlemait de Paris, afterwards pre- iidfvt aux rctjut'fc.i \ '. - i i i ■ h 1 • ! ■' U t; .' 1 , ht, 84 h tion specially to tliis point, concur wilh Giiyot and many otlicr cst('em(!d writers on the feudal law, in assertini^ tliat, in the paijs dc coutumc^ unnavigfible rivers belonged to the feudal Seigniors and not to the Seigniors hauts-justicicrs. In so far as Guyot, Herve and Henrion de Pansey are opposed to the claims of the Scii^nertrs hafils-Justtciers, they agree with Racquet (1), Loyseau (2),Domat (3), Pothier (4), Souchet (5), Merlin (6), and several authors of less note, cited l)y Championniere, all of whom, either expressly or impliedly, deny that there was any general rule of law, -which gave ehhcY \o the Set ii ex- " traire les iniiir'raiix ([ui y sont renlermes, on laire des " ])roinenades, converlir les etangs en terres labonrables, " et les lerres labonrables en «'langs ; il a Id projiricfe ah- '■'• sohn: da dumainc utile el il pent cu user eomine iljiiiit un heritage a litre de fief, " cornprend memc les droits honori/ifj/us attaches a Pheritage " qu'il tient enjief. " (3) In short, the grantee en eettsive has the land and all rights attached to it of merely pecuniary value ; whereas the grantee cvi //e/" has the same rights, and, in adtlition, those of an honorary eharacler. In order, then, to determine whether water courses ])ass undi-r a bail a cens, it would seem to be nee(>ssary to as- certain simply, whether the right to such rivers ought or ought not to be deemed an honorary right ? (1) lleiiriun do I'linsey, vol. 1. p. 285. (2) I'utliier, vol. 5, i)."4 ;— soo also D.KHiulin, /o/V, tit. 1, ? 51, ^'los. 2, no. 29 ; Pni'lli'imiiK', oh. 17, \). 93. (Jl I'oiUiur, vol. 5, page 4. 87/* Now I am not aware tliat ;uiy writer upon llio feudal law has ever asserted that there is any thing more hono- rary in the right to water than in the right to dry land. The droit di'. cliassc was douhil 'ss an iionorary right, droit honori/u/uc, and, under ihe lav\ - ol" France a rm^re roliiricr was not allowed to exercise ih.u right on his own proj)erty, even held en franc-alla:. (1) The droit dv iitlchc^ on the deemed a droit honorifiquc. viiitrary, certainly was not Iferve, after a careful examination of the subject, concludes thus : " ri est done vrai ([ue la peehe n'(!st pas un droit es- " senlielleinent feodal. Cependant eonuiie ce droit est le " plus eommunement cxerce |)ar les Sei^-neurs dr. ficfs^ tant " parce (pie les \)ro[)nO.\Os fcodafcs sof/t les pins iwmbreuscs ct " leu /dus etendnes, que |)arcc que l(!s concessions a ceiis em- '•'■ brassmt raremcut la pcdie^ fv, meme droit titint prescpie " toujours a la feodalite d(ins Piisa'^c ct par le fait. Ainsi, " c'est un droit de proprietc, aucpiel un caracten; de feoda- " lite se mele Ir. plus ordinairfiitpnty (2) And Henrion de Pansey, althoagh he speaks of tli(; droit dr. pe'c/ie as belonging to Seigniors — says thai the droit de pcche diflers from the droit dr chasse in this essential point, that — " le droit de " chasse est purement honorifupie ; et tout le monde est d'ac- " cord que la peche est un droit utile et domanial." (3) As to the other advantages resulting from the ownership of water courses, such as the right to use them for agricul- tural and manufacturing purposes, it certainly cannot be pretended that they consist plus en honnrur q^i'en utility pecuniaire. The foregoing authorities and remarks establish, I think, these three propositions : — Istly. That the owner of a fief i^ entitled to the unnavigable rivers within the limits of his (1] I'othier, Pro])riotc, no. 37. (2) llervo, vol. 7, p. 3()9. (3) Ilonrion do Pansey, vol. ), p. G71. m' m. \^h. A . I ! ' I ! ; I <■,; I'J M : 88 A grant, as an accessory to the soil ; or as Herve says : pnrce quHl a la proprietc dii sol rpicllcs bnignent^ and as part of the domainc vtile vested in him by the contrat (PinfeodaUon. 2dly. That tlie doinaine utile which is transferred by a bail u cens, is as extensive as the domaine utile held under a grant enfief\ excepting only, as regards those rights which consist plus en honneur (iv?en vtilite pecuniaire. — 3rdly. That a right to unnavigable rivers cannot be considered as one of the last mentioned rights : la distinction des eaux etdti ler- ritoire, being as llerve says, veritublement unc distinction futile et inadmissible. The three foregoing propositions, if well founded, (and I am satisfied they are so) justify the conclusion, that Cam- taires are entitled to the unnavigable rivers within the liniitt; of their own lands. § 5. On the part of the Seigniors, however, it is contended that, as a matter of fact at least, it is certain, that in France Seigniors owned the rivers even that watered the lands ol their Censitaires ; and that it is impossible to reconcile that fact with the doctrine that the water passes with the land from the Seignior to the Censitaire^ in the same way that it passed, with the land, from the Crown to the Seignior. The fact alleged on behalf of the Seigniors (which I feel to be one of very great importance,) is far from being a settled point, and is still regarded as an undecidedquestion in France. I must admit, however, after a careful examination of all the works on this subject to which I have had access, that there seems good ground for believing that the unnavigable rivers in France, even dans les ptjjs cr>//fnmfrrs, were not, gone- rally speaking, owned by the Censitaires whose lands were watered by them ; but, on the contrary, that those rivers ge- nerally, although not universally, belonged to the Seigneurs feodaux. The apparent discrepancy between the state of things, which it would seem existed in France, at the time of the 89^ Revolution of 1789, and wliat I consider was, even then, the abstract rule of law on the subject, may perhaps be explain- ed in some one of the modes suggested by the learned pre- siding chief justice, who dwelt fully upon this point ; or it may, perhaps, be accounted for by the change tiiat has taken place in the nature of the bail d cens, since the great mass of the lands in France were conceded. At that time, the domaine utile of a Censitaire was hard- ly more extensive than the right which a tenant now has, under a bail a ferme ; the Censitaire could not remove the buildings on his land, nor even make any important change in the mode of cultivation, he was not in fact the owner of the soil. (1) It was not until the time of Dumoulin, that the bail a cens commenced to be viewed in the light in cvhich we now regard it, and we have seen that, before the end of the feudal tenure in France, the estate of the Censitaire was described by Henrion de Pansey, as la propriete absolue du domaine utile. The same principle therefore, which gives the unnavigable rivers in Canada to the Censitaires, would have precluded the great mass of the Censitaires in France from any claim to them. In one word, Censitaires^ in Canada, were from the very first really proprietors of their lands ; whereas the Censi- taires^ in France, were not so at the time when the great bulk of the lands in France were conceded en censive. The change which, in later years, took place in France in the nature of the bail a cens, of course, gave to the Cen- sitaires a higher estate in their lands than tney had before ; but could not enable them to advance a claim to water cour- ses, which had remained in the possession of the Seignior at the time the grants eti censive were made. (1) Clwmpionnidre, p. 591 ;— Dumoulin, Fiefs, t. 1, § 51 ;— gloe. 2, no. 29. !vi^- V 0, i Wi *i-5 90 h Assuming however for the argument, that tlic unnavi^a- ble rivers in F>ance were generally in the possession of Sei- gniors, still with the knowledge which we possess as to the origin and growth of seigniorial rights, I do not think we would be justified in inferring, from the fact of such pos- session, that the Seigniors had accpiired those rivers under a rule of law upon which we could now act in Canada. Such an inference would be the less justifiable, wln^n we bear in mind that tlie existence of any general rule of law, in France, to that effect, is, as I have already observed, d( - nied by Baccpiet, Loyseau, Domat, Pothier, Souchct, Mer- lin and many others ; and it a))jiears to me impossible thai any such rule of law could have existed in France, without its being known to those men ; or that, if it had been known to them, they could have written us they have done. § 6. It will moreover be found that but very few of tlie au- thorscited in sujiport of the pretention of the Seigniors, can be understood, as affirming the existence of any such gcHcml rule of law in favour of the Seigneurs feodanx. I am not now to be understood as alluding to t!ie writer;' who support the claims of the Seigneurs as liaz/fs-juslicicrs. I ha/e already explained the grounds upon whicli I deem it impossible to assert that, under the Coutume de Parix^ Sei- gniors hauts-jusliciers were entitled to all the waters within their jurisdiction ; and the authorities which t(Mid too;m

    , lUtliongh tlio •Aviii'Xa Minil in. in that work, concludes in t'livuur of tho Sci- giiiuw, tho subsequent article Riciire, in tho ame work, is against them. f ,.'l 1*1 ! 'i ' l\ !,i 1 92 A Loy.-iL'! reinaiksi merely: " Loh petites rivieres el (:li('inin:< " soni aux Seii^ncurs des torrcs et les ruisseaux nnx purii- "• c'ulicrK teniuu^iers" (1) ; and cites in .inpporl of tins opinion liouleilivr, >S)iiime rurti/e, (whicli, it is to be observed is in fjivoiiiof llie l'> ''i^^iuors /lauts-Jtfsticicrs,) and the passayjc I'nm Coqnille to wliicli I have already adverted. With resof^et to Chassanec and Legrand, (two of the other authors on the list) it is sufTieient to observe, that the i'onner wrote with referenee to the Custom of l}(jurf,'();a;ne and that the latter is a commentator upon the Custom of Troyes ; both of which Customs speak expressly of hannal rivers (2) and, in that respect, differ from the Custom of Paris. Chopin is quoted by Championniere as one of the authors who maintain that the ownership of unnavigable rivers is regulated exclusively by tith^ and possession, and the passage from Chopin, in Championniere, shows clearly that such was the opinion of the former. The opinion of Salvaing (who must, I think, be considered as speaking of what was law in the pays rlc droil t'rrit rather than in the pays coiitumicrs) (3) seems to be in favour of the Seig;nnirs haiits-jnsUciers and not of the 8d- gnciirs feodanx. (4) " Et ces rivieres appartiennent en " propriete aux Seigneurs du territoire ou elles coulent i)ar " la Coutume de France atlestee par Bouteiller. " Now the Custom of France, as attested by Bouteiller, is in favour not of the Seigncar feodal^ but of the Seigneur haul-juslkier. The observations of Salvaing, in the page following tiiat jusl quoted from, show most plainly that he did not imagine that there was any exclusive rule of law on this subject in favour of Seigniors. ■■ < i (1) 1 Loysol, p. 275. (2) As to Custom of Bourgogno. soo Riehobourg, toI. 2, p. 1180; as to thut of Troyes, see same author, vol. 3, p 232. (3) Salvaing was Seignior of tlie place of tliat nanio, wa^. premier -prCnident dtli ehambrc den comptes da Roi en Dauphine, {pays de droit icrit.) (4) Salvaing, page 216, ed. of 1731. s subject in favour p. 1180; as to that of 93 A Lcbrol and Poiilain-Dn|)arc speak positively of nnna- vi('!il)le rivers as belonging to Sc.'igniors ; but they do not advert to any general law on the subject ; nor do ihey giv« aiiv reason in suj)port of their opinions. Lcfevre dc la Planejie does not express any opinion of iiis own, but nMTiarks that Haeqiiet who rnainlained that spiiijniors had no greater rights in those rivers llian other persons, s'ecarte de I'avis dcs autrcs auteurs en re point. Gayol (1) gives very satisfactory reasons in support of !lie opinion, that, in the absence of any expr(;ss ruh; of law, ilie claim of the i^ciixncur feodal should be considered sn- ptriorto that oi \\\ii iidgncur /laid-juslicicr, and adds that, in kspays de coulume, ces rivieres sonl ii;6neralement vv droit dr lief. This author does not however discuss the (iiicsticn whether a Seignior can be deemed the owner of the water courses upon the lands of his Censiiaires. Tlie opinions of Herve and of Ilenrion de Pansey, on a (jiiostion of this kind, are entitled to the highest consi- deration ; and they are, in so far as regards the irirr' !i;s- torical fact of possession, directly in favour of the chiiiri advanced by Seigniors ; but it is to be remembered that those learned writers do not, in any way, countenance the idea, that there was any law which gave Seigniors an exclusive right to the unnavigable rivers within their seigniories. The passages already cited from their works, sufKciently esta- blish, that, in their opinion, the owners of fiefs were en- titled to the watpr courses within those fiefs simply as ac- cessories to the l^ad upon which they flowed. The authors, above referred to, establish, I think, that, as a matter of fact, the Seigniors in France were generally be- fore the Revolution in possession of the rivers within their fefs ; but it does not seem to me that they attempt to prove, or have any tendency to prove the existence of any general (1) Vol. 6, p. 633 and seq. .^••\l .11 :| , I t. ; M ' ili' 94 A rule of law on this suljjccit, ; and more particularly any law, imdcr which, Scirs, villiin llic Custom of Puri.w, caiild rldi'm f/if iinnavi'^'dhle rivers njxnt Ihc lands of fJiiir Cinsi- taircs; ir/iich is real/ j/ the point in controvcrsi/. In the course; of iho foniiroing remarks, I have hiboiircd to kc(;|) i)rominenlly in view the dillerence betwecti tlit; (jueslion, whether Seii^niors, in France, were fi;encrallv in possession ol' nnnavigahle rivers; and the (piestion, whe- ther llieri' was any j^eneral rule of law, giving to Soiiftiiors. or to any other class of persons, an exclusive riglit to riwis of that kind. In connection with this |.ioint and mIiIi a view to indicate the practical importance of not conlonntling these two (pieslions, I may observe that, although the mode in which the Seigniors, in l"""ranco, originally accinin-d the own(M-shi|) of die rivers which they held, may no! iiricrihe lapse of centuries, have been of any imporlani.-, in so l';;r as regarded the validity of l/ifir own tilles (lor a title hy ])rescriplion is as valid as any other title); yet, lli;it when the possession of those Scdgniors is urged in support of the (daim of die Seigniors here to rivers of the same description, it then does become essential to know, whether the pos- session of the fnincli Seigniors was really the result of a rule of law or of some other and dfl-rent cause. Before closing this brief notice of the long and valuable list of authorities from the old french law, for which we arc ind(!bted to the industry and research of the learned coiinsol for the Seigniors, it may be remarked that that list does noi contain the names of any of the commentators upon our own Custom, the Custom of Paris. If it be said that the Custom of Paris is silent on this subject, I may ask, is not that silence itself of great impor- tance ? Several Customs anterior in date to the Custom of Paris, ex- pressly recognise the rights of Seigniors to unnavigable rivers. 95 h \[ \\w redaction ol one Custom ;it least, (1) tlio Seigniors claiim-d an exclusivi; right to inuiiivigahh; rivers, aiul their ihiiin was, after delii)eration, rejected. We know that at the ■mladion of our own Custom, several hundred Seigniors were present, and the proccs-verhal of the delil)erations upon that iiTi])()rtant occasion, shows the number and variety of the rlaiins that were advanced by Seigniors, and yet we do not find cither in the text of the Custom, or in the stateiuent of the rights to wliieh Seigniors hauts-Juslicicrs were entitled (2), or in the proas-vcrhal of the deliberations, even one word lending to show, that under that Custom, Seigniors either hnuls-Justicicrs or feodaux had an exclusive right to luina- viijabie rivers. Tiic Custom of Paris provides in a manner truly remar- kable, considering th(^ period at which it was framed, for flic fr''edom of j^rojierty, (3) and for the protection of the in- terests of the lower (dasses, (4) and not only is there no pro- vision in it, under which any class of persons could (daim aneyelusivo right to rivers, but, on the contrary, the article 1S7 furnishes an argument for the denegation of any such right. Under our Custom, " qui a le sol a ce (jui est au-dessus et aii-dessous." (5) This rule is in etlect the same as the maxim of the english law, " that ho who jiossesses land possesses also that which is above it " ; and it is under that rule, that, whenever the english law prevails, water courses are held to pass with the land upon which they run. The eminent men by whose advice the Custom of Paris was, in preference to so many others, extended to the fren(di colonies, were inliuenced, one may reasonably suppose, in (1) Championniero, pp. 622, 640, and Riehebnurn;, 4 vol. p. 708. (2) .See Biicquet, vol. 1, p. 2. " Articles eoncernant ces droits do justice, Iiauto, movenno et bai-so, contenus au cahier drosse lors do la redaction de la nouvolle Coutunic de Paris." (3) Vide ex gr. art 186. "Droit de sorvitude no s'acquiert par tongue jouis- " S'.incp, quelle qu'ello aoit, .san.s titro, encore quo Ton on ait joui par cent ans, mais " la liberto so pout reacquerir contro le titre de servitude par trente ans." (4) Vide ex gr. art. 71. (5) Lo Camus on art. 187, 2 vol. G. C. p. 1573. .11 96 h 1 1 't . *iiioh prcfcrcnco, by the cionsidcratlons to which I huve juHt aclvcrtcd. They fifiivu iho colonist.s the ll'inhil system ; hiii it was the fiMulal system free from at least its worst abuses, and reformed in a spirit not only of jiistiee but of lihprality ; and the judges of this (!ourl wouhi commit not only a grav(! error, but a grievous wrong, were tfiey, in the absence of special legislation for the colony, to subject iIr^ seigniorial lands of flower Canada to any burthen, howovor distin(;tly recognized by other Customs, if it have not in dubitably the sanction of the Custom of Paris which alone has force of law here. § 7. f (h) not now propose to review the autliorities from ilic modern law of France that have been cited l)y the leariii'd coiuisel for the Seigniors. The task would demand inncji greater powers than I possess, and would rc(piire iiKirc leisure than I have at uiy command. Moreover (Ik; contro- versy in France turns in a great degree upon provisions of the code civil, to which we have nothing analogous in our law. I would not wish however that, from my silence in this res|)e{!t, it should be inferred that I admit the proposition that has been advanced, namely, that, at present, not only the courts, but the majority of authors in France are op- posed to the claims of the riparian proprietors. (1) In order to sliow that it is not without reason that I refuse my assent to that proposition, I will give a few passages from tin works of two very highly esteemed french authors, who, being among the latest wiio have written on this subject, have had the advantage of seeing and weighing almost all the arguments and opinions that have been adduced bel'ore us in support of the claims of the Seigniors. The worlds to which I refer are the Treatise of Raymond Bordcimx publised in 1849, and the supplement by Garneau (in 1851), to his former work " Regime des Eaux. " Raymond Bor- deaux, p. 75, no. 37, observes : " L'opinion qui fait les petits cours d'eau la propriete des (1) Seo Mr. Cherrior'e factum, p. I 1)7/* " rivciiiins, est nssiin'mcnt In plus anoicnnn ft In plus vul- " j^'iiiic. Si ('lie coMjpfc p;irnii hcs dt'lrnscurs dcs juriscon- " suites n'|)Ulrs : M M. Pindcssus, 'I'oiillirr, l)ur;mU)n, " Troplor)!,', (iiiniiiT, D.-ivicI, Dupiti, Cliardon, Cliaiupion- " nirrc, Sirey, Dovillcncuvf, (I) cllc pcul juissi passer pour '"'• t'Irc I'opinion puhli<(U('. Tons Ics proprielaircs, tons Irs " praticicns u'oni jamais doute que h's pciilrs rivirrcs no '' (Irpciidisscrit ios I'onds quVllcs arroscnt, ft jusqu'a ces " (Icruicrs temps oil la (picstion (pii nous occupc est sortie '• (Ics areancs dc la science et s'est revelee an |)nl)lie, nn " <,'rand nomljro do contrats disposaient de la j)roj)riel6 dc " ces eoiirs d'uan." At no. 10, the same antlior f^ontinues tinis : •' \a' premier arij^ument (|ni se present(! est nn ar2[ument '^ hisloriciue, IMeriin et llenrion de Paiisey onl aceredite • dans la iuris|)rudenee moderiu! I'opinion (luo les Seii^ncMirs " etaient proprietaires des |)etites rivieres. I'ersonne ne " s'ctant (loime la peine d(> verilier rexaetitude de eettc " premisse, les deerets des 4 el 10 aout l7Hf), (pii firent " tombcr la ieodalile, I'urc.'nl invocpios des dtnix cotes. " On a discule lonqtemps snr cc terrain, lorsqnc ropinion (jui servait de base, est (lev(>nne I'ohjet de doutes (|ui so soul allerinis depuis. !)s rivieres, i^randes vi petitos, ensuite les rivieres non navi;neurs avail etc mise en favour par les feudistcs an moment sculoment de la obuto do la Ieodalile. I'ottlc (1) '• Voyo7, duns la nnuvellc collection do M. Devilloncuvo, tomo 9, 2opiirtio, p. I537, '' im rclcvt' trt's-cxact, do tons Ics nutoiirs (jui out combiittii |iipiir (ui coritro. On jiout " roiiiannicr ici ([uo les (.•oiniuontiitour.s du code civil ont ."(lUtonu f;(''noriiIenient le ■' ilroit lies rivoraiiia ; qu'im contrairo Ics atitcurs do traitos {jjcncraiix siir I'ciiseinhle " du droit administratit so sont pliitot ranges du c.tito oppose, et (ju'enlin, ])ariiii ecux " qui ii'i lilt, traitii quo la question apocialo dcs cours d'eau, les juriseonsultos ont ' npporti! Icur appui iV la cause do la propricito priveo, tandis quo les ini^enieurs se " font ciinslitues les ehainpions do I'adininistration. C'est ranfagonisino do doux " doctrines opposees, lo resultat do preoecupiitiona difforontes, lacunsequenco lugique " des prineipes do deux ocoles antipathiques." :vj If 98 h ^^ (I/'sr/t^sfon s/n- re point tsf. ilonc dexoriji'its /'mpossihl/^ U " Par ij;ii mint (i jicnln Ionic sd force conlrc ics rivcniiiis.'" Tlu' |i;issiige (Voin Garnicr, which I cite nt length, is iri- lereslini^' nol only as i,^iving a succinct review of some df the iaiesi worlds on this sul)ject ; but also* as conlaiiiiiij^ «onie vahiahle remarks on the trench (U'cisions relied r,n [)y the learned counsel lor the Seigniors, and more parlicularly in reliiiion 1o the arret ol' the ariir de cassatiou of llie lOth June 181(j, upon which much stress has been laid. Ttie author refers to the opinion expressed by liiinself at page 132, vol. 3 of his former work, and remarks : " Uei)uis que nous avons public cette opinion, laqiitsiion de proprietc des cours d'cau non navigables ni liollablo* " a conlinue d'occui:.r les tribunaux et les jurisconsulte^;/' a " Aux auteurs que nous avons ciles, il faut a jouter M. " Jlives, conselller a la cour de cassation, dans un travail " exirait tie son grand ouvragc sur les delits et eontravcn- " lions, cxtrait public en 1841 ; M. Dufor.r, Traitc du drult " administratif ; M. Marcade, Elements du droit civil, M. " Cotelle, Droit administratif, M. Championniere, \)r. hi " propricte des eaux courantes ; M. Ratier et M. Rayiiionil " Bordeaux. " De ces divers auteurs, MM. Rives et Ratier sont Ic" " seuls (pii contestent la proprietc privee ; le premier attri- " hue a i'Etat, au domaine public, la i)ropricl6 des cour* " d'eau non navigables, ni -liottablcs ; le second, adoptani " la doctrine d'un arret dc cassation du 10 juin 181{), sur " le(iuel nous reviendrons 1out-a-l'h(>ure, les range dans i:i *' classe des choses qui n'appartiennent a personne et doni " I'usage est commun a tous. " M. Dufour distingue le courant d'eau du lit qui le re(;.oit. " II considere le courant d'eau comme une chose qui n'ap- " partient a personne, qui est commune a tous ; mais il re- •/verau/s. jersonne oi 99 h ♦' connnif que la proprii'tc du sol ou lit appartient aux ri- *' vera ins. " Quant a MM. Cliainpionnieir, Marcadr, Cotcllc et "Bordeaux, ils n'liesilent p;,s a atlribuer aux riverains la " pr(.))riete du lit et de Telcruent (ju'il (;onlient. Leur con- " vieiion est entiere. lis soutiennent leur opinion av(>c " beauooup de f()re(> et de talent. Le premier el le dernier " ont donne, dans dv^ traites speeiaux, de grands develop- " pements a la these qu ils ont adoj)tee. " Nous ne connaissons quo deux arrets explieites sur la II question (|in nous oecupe. I.'arret de cassation du 10 yum 1816 (I) et I'arret, Ires-bien motive et en sens op- " pose de la Cour dWmiens, casse j)ar celui que nous ve- " nons de rap])eler. Malgre notre respect pour les decisions de la cour su- 'I preme, nous no pouvons nous rendre a la doctrine de son ' dernier arret, et, apres une nouvelle (-tude de la question 'I iKHis persistons a regarder les riverains comme propric- '^ taires ; notro convi<;tion est complete ; nous croyons qu'elle ll^erait parta-ee par le pouvoir h^dslatif si la question lui clait soumise, comme nous le souhaiterions pour terminer " une coniroverse qui peut sc prolon-er longtemps encore. " Nous dirons d'abord que I'arret precite a etc rendu par ' delaut apres une deliberation do trois jours, et, si nou»- " .sommes bien informes, a la majorite rigoureuse des voix " avec la participation d'un president de chambro qui avail '^ recemment quitte le ministere des travaux publics ; or, " I'on salt que les agents attaches a ce ministere, les inge- II nieurs, les prefets, sont generalement opposes a la pro- pnete des riverains, ne veulent voir dans les cours d'eau II non navigables, ni flottables, qu'uno matiere qne I'admi- jmsfratjon peut rcglementer a son gre, et dont elie a la f. ['p. 433.''' ^^^'^' "■ '• P- ''^ •-J°°'°*l Ju P-^lais 1846, p. 5 ;-DeviUenou.e 1840, M 100^ " librc disposilion, bion cntondn, dit-ollo, pour lo pli7> " grand av;intagc de I'agricultUR' cl de I'indiistrio. *■' Cotte arret nc saiirait, a notrc avis, fain? Jnris|)nidence. " II 8crait a dc'sircr (ine la qneslion fat portce dcvant, Iob " ohambros reunics et soumisc a un dobat contradictoirc. " Nous pcnsons qu'elln y rccevrail unc solution favorable " aux riverains." I shall now briefly advert lo two propositions in connec- tion with this branch of the question, which have been ad- vanced by the learned counsel for the Seigniors ; the first is that water courses pass under a grant en ficf^ conlrat re, 1 (juestion much if any court could be found to sustain it ; and without wishing to speak of Fiviuinville as he has been spoken of by Herve and Chaiupionniere, (I) 1 must say that his views are so peculiar, not to say extravaiijant, as to prevent me from at- taching much weight to them. The passage moreover which has been cited from thai author, has no direct bearing on the point now under consi- deration, and the same may be said of the quotations from J^egrand, Bonleiller and the Repertoire of Guyot. The pretension that the grant of a riparian estate en ftcf goes to the middle of the stream, but that th«i grant of same real estate et/, ccnsive stoj)s at the margin, is plainly con- trary to reason ; such a pretention cannot be maintained, un- less founded upon some well established rule of law ; and the authorities cited on this point by the learned counsel for the Seigniors, are, in my opinion, wholly insufficient to prove the existence of any such rule. The rule laid down by Daviel, vol. 2, no. 540, is as follows : " Lorsqu'une riviere " coule entredeux heritages, chaque riverain est repute pro- " prietaire jusqu'au fd de I'eau. ILsi/ne ad filum (ufiiK^ " comtne disent les jurisconsultes anglais ; c'est-a-dire juf- " qu'a la ligne qu'on su))pose tracee au milieu meme de la " riviere." Adoi)1ing as we do the ruU; iis(iiir ad (jhrm (ufucc in favour of Seigniors, we must also adopt the same rule in favour of other proprietors. If it be said that a grant ^?? roisivc tn a stream, or bounded hij a stream ought not to go beyond the border of such (1) Uervd, 7 vol p. 371 ;— Cliiimpionniere, p 703, note 1, and page G13, note 5. ) I i >l 103 h stream : I answer that, the saints objection would (Mjuallyapply to a ujrant cnjicf^ and yet, as to such grants, the objection is ndinitted to 1)0 of no weight. Moreover as to both (h'scrip- iions of grants, it wonhl seem nnreasonai}h! that the same words w liicli indicate that the owner is to liave ;i ripa- rian estate, should be deemed to have the efiect ol' (le])riv- ing him of all the rights, peculiar to ii ri|)arian proprietor. § M. Fn concluding these ol)serva1ions, f m;iy remark, that, if we could adopt any of the systems ndvocaled by the modem I'rench writers, whose opinions have been cited in suj)port of the seigniorial pretensions, such as Laferricre, Sacasse •or I'roudhon, Ccz/sildir's would have no reason lo complain ; for thidr more important rights as riparian proprietors would be fully protected. In order that this may be apparent, I shall (die one passage froai Laferricre, whose opinion is much rcdied on l)y the learned counsel for the Seigniors. (9) " L'eau couranic dans le lil des rivieres non navigables [oeut " elre considcree sous deux rapports. Relativement aiix par- " ticuliers non riverains, elle est chose commune, Paqua '■^ jiri>jl//f'//s dcs Institutes, en ce sens, que chacun peul s'en " servir pour son besoin |)ersonnel, ou pour y abreuv(>r seg ^'bestiaux, sauf le moyen d'y abordcr sans nuire au pro- " j)rietaire de la rive. " Relativement aux riverains, die conslitue avec son lit -'■ oe([ue les jurisconsultes, comme Pothier (10) ct Proudhon, " (10) appel t le corps de la riviere, et elle olfre des avan- " tn^-es (|ui ticnnent a sa nature, pour la peche, l'agri(Mil- " lure, rindiisfrie ou le seul agrcment dr son cours. Crs '■'• iinniln/cs sonldllrihiies par la sihialioii. (hs liciira tons " /rv rirn-(iiii>i. Ceux-ci par la force (hs cIk/scs, sont, en ce " qui concerne l'eau et ses avantages, des cominunistes. lis: " onl nuturcdlcment droit aux avantages que le cours d'cau " porte avec lui. Toute la question, au point di^ vue du (P) Lal'erriiTO, Comn do ilrnit imlilic ct ii'lministratif, vol. 12, p 74. (liM I'-tliicr, l'n,|iriL'te, R-l (U) D^.iii. pub. t 3, no 'J47. ■ !■ -I . t 104 h " droit dc propric'te, so rcduit a savoirs'il.s sunt des /in>//rie- " tcdrrs communislcs oa s'ils sont des usagers couiinu- " nisles." (1) This author correctly distin<,fuishes between the advan- tages resulting from unnavigable rivers, which are comiiKm to all persons who can approach such rivers ; and those which peculiarly belong to riparian pr()[)rietors ; (2) such as the nsf of the water for manufacturing and agricultural j)ur])oses ; to which advantages, the autaor says the ri])arian pro- prietors are entitled naitircllcmeiit par la force dvs chows. (3) In order to show that this doctrine, as to the natural riglit? of riparian proprietors, is not i)eculiar to the law of France, I will (piote the words of Chancellor Kent on this suljieet. "Streams of water (says the learned chancellor) were in- " tended i'or the rise and comlbri of man ; and it would be " unreasonable and contrary to the universal sense of man- " kind to debar every riparian proprietor from ihe applica- " tion of the water to domestic, agricultural and manufac- " turing purposes.-' (4) If we were to Imld that unnavigable rivers are private proj)erty, and yet to declare that the Censitains are not owners of streams a\ hich water their own land ; then, even after paying for the commutation of the feudal bmlhens upon their property, the Ccnsitaircs would still remain, as regards aquatic rights, in a worse position than any other (1) Aeciirdint,' to Prnudhon, torno 3, r.o. 9:?'J, j). 231iind no. 9G1, pai^o Hll. the ri- pariiin projiriefur.^ mulev tho code, ;irc pei'pctuiil usulruL'tiunit'd of the uiui.ivipriilile river,-: on (liuir liind. But Sacnsso agrees with Lafcrrieru in coiisidoriiig Ihciu ;ib " usajrcis." 3 vol. riv. erit. p. 321. (2) t<:ivic!, 2 vol. 110. i3l2. p. 3,5— makes and c.xplaina clearly Ihc sau.o di."- tinetion. (3) -As to natural rif;lits of riparian iiroprietor,'; ride !Merlin, Questions vo peclie, vol. 12, j). 217. " ;Si iiou.'i ouvr(jns le.s ordoiinaiu'e.-', nou.s y verroii..; Ijien cprelles iitnil'UenJ "a I'i'tat, 111 propricto do,s rivieres navij^alile.-, niai-i nous n'y ap|ion'ovr hi.- p'w " qu'elie-i touehent an droit dc ]'roi)ritti (/uc Ic.-- /oiVv ludurtllcs- c.t ruinaiiK.^ d itu'.nt " au.r ituii/rt.^ des terres adjui-cides siir Ics i>elitcn ririirc.i (/tii par ii'/i..v-7;i' iiu.-i m "sunt r.i miri'juhks ni JlotUd)lt.<.'^ Vol. 2, p. 27, Daviel, oniir.s d'eau. ■• l.e- l'urrf.'!i " inolri''c..< qu'il (lo (•our.'* d'-au) founiit ;l I'liidiistrio, le-s I'essourees (ju'il ollie|our " l'irrij;,ition ct pour la peclie, aeee-^.-^oire-* pri'cieux du lit el. do-^ rives, doal lii. '\\f- " pnsiliuii i'avoriso eo.-i rieho se.s naturelle.s, roUu iiiic di'pcndancc cssiiilidk (/<■>■ /nn- " ia»■t.^■ '/u'il /rurersc." Also (J.uuior, court- d'cau p. 2G8. (4) Kent's Cum. vol. 3, p. 35'1. 105 h )nt dos pro/irie- jarly tlio siuuo ili»- class of proprietors that I know of. Tlicy would not Iiave the rii,'-lits wliieli riparian proprietors enjoyed in connuon with all their fellow citi/ens, under the Roman law. Neither would they have the strict projjrietary rii^lUs which an' ^'•iven by the English and American systems. Nor yot would they have the right of perpetual usufruct (1) or usage (2) to which, at the least, they would be entitled under the modern french system. Tiiese general considerations have had some, but 1 trust net an midue influence ujion my mind in adopting the view which I have taken of this interesting and important ques- lioji. The principal grounds Jiowever upon which my judgment ro'sls, are, firstly, that although the Seigniors claim an ex- clLi>ive privilege, they have failed to show that there is any rale of law to support that privilege; and secondly, thai according to the principles which govern the contracts vniiler which both the Seigniors and the Censilaires hold their lands, the latter are entitled to the unnavigable streams within their own pro[)erty. If it be true, as I think I have demonstrated it is, that the domaine vf.Ue which passes under a haila ccns^ is as ex- tensive (save as to honorary riglits) as the domaine utile which passes under a grant en fief; and if it be also true, that the right to a water course has nothing more of an ho- norary nature in it, than the right to dry land ; then not- withstanding the difficulties which surround this per- plexing question, I think we may safely come to the con- clu^-ion that unnavigable rivers must be held to have passed from the Seigniors to the Ceiisitaires^ precisely in the same manaer, as they passed from the Crown to the Seigniors ; and that the distinctions advanced in favour of the Seigniors mu.st be ignored as being unsupported either by any rule ot law or principle of common sense. (1) Prondlioii, Dom. pub. no. 9G1, p. 311. i'.') :i V..1, lU:v. crit. urticio by Mr. Liiferri^re, p, 093 ; art. by M. SacaKO, sauio ''j1 p. 0'^ 1 ; »eo ulso Davicl, vol. 1 1, p. 5. ■H 1 ^' if; < i ir 106 h P A It T 5 . Cof/nfrrfjursfwns of the Srts^m'ors. It wdiiid liav(^ been sat isHiotnry lo mo lo linvc slated ni\ views upon cacli of the (|ii('stions sul)initl('(l l)y llic Icarmd counsel tortile Seii2[niors, not fully answered by oiu- replie? to llie (|uestions ol' the Attorney General. Hut the time at my ooinuiand will not admit of this boini? done "^I'liere ure however three aui()nst entierement eontraire au.\ intentions de Sa ••.Majeste, el aiix clauses des tilrcs des concessions, par •• lt's([iielles il leiu" est, perniis seulenient de conceder les? •icires a tilr(> de redevanee," sliow that law nnist he res- iricU'd to those seigniories the titles of which contain clause? ^nil conditions such as those rel'erred to in the preamble. Till;* part '^A' the j)reamble, on the other hand, is sometime?i reli'ired to i y those opposed to the int(>resls of the Scign.orp ^ decisive j)roof of the nature of grants i //. /iff l)efor(^ the hie of the arrcf ; and il would be very important evidence indeed on this point, had we not the titles themselves which Jiiiiol contain any clauses or conditions siudi as alleged in liie (irr/'t. It is therefore evident that the statement in the pre- aiahlc a!)ove(|Uoted is erroneous ; but although tlu; preamble (it die arrdf. may contain amis-statement in this rcspec^t, ilial would not justify us, in treating as null the |)lain terms of the enacting clause. The evil, intended to be remedied, was that Seigniore^ IkuI refused to concede their lands to settlers in the hop(! of beiiisf able to sell the same. The King's intentions, and the clauses in the contracts, are rclured to, not for the purpose of restricting the application '•' die law to any particular class of Seigniors, but merely is awcavating circumstances. The words of the enacting clause may not be very tech- nical, but they are as comprehensive as any that could have l«'L'i nsed : " Ordonne aitssi Sa Majeste que tons les Sei- "i-'iieurs au dit |)ays de la Nouvelle France ayenl a conce- ■^«raux habitants les terresqu'ils leur dernanderont, etc." : t 108 /i 'itS ; :i M Th(! law commands all Scii^'tiiors in In Nouvcllr Francf without ('Xcc])fion to siib-coiu-iMlc, wliorcas, accordiim' tnihe prclcns'jns to wliicli I now allmlc, not one of the then Sei- gniors {.'oiild have been compelled to do so ; lor none ol'llifir titles contain the elanses and conditions spoken oi" ia tlit preamble of the arret. It lias also b(!en contended that the arr(lt of 1711 is not 0|)|)lieable to the //V/a' ijranted after thiit law. And the pre- amble and enacting' clanse an; Ijolh referred to in siippori (,| this view ; the preamble, oil the ^ij^round that it rclur^ lo clauses of grants already made ; and the enactini,' elaiiH'. if I mistake not, because the rule laid down in it, could iwi b(,' a|)i)lit'd to a J'n f in which thcrt; were no settlers ; w liii I, it is to be presumeil would be the case in every //r/ when i: was iirst granted. I have already briefly exi)lained the reasons wdiich iiului' mo lo think that the preaml)le cannot limit the ciiaciinL' clause to any particular class oi Jb-fs ; and as lo the oilier objection, at most, it only goes to prove that the lawdmld not a|)i)ly to those seigniories until tlusre were some sclilers in them. This objection, I may observe, could be ur^ed by all Seigniors who had no settlers on their ,//e/.v, wliat- ever might be the date of tlu,* grant of the _//>/'; and \vc would thus arrive at a conclusion which would render tht law inapplicable to that class of seigniories, inrehitiunlu which, above all others, its j)rovisions were most required, — namely the seigniories which were altogether without settlers. :'t is also to be observed that if the law were to be deemed subject to the two limitations contended for by tlie learned counsel for the Seigniors, not a sins.de case wiuiU remain K whicli its provisions could ani)ly. The grani" made before the law, would all be exempted, because ihey do not contain the clause mentioned in the preiunble ; ami all the grants made after the law woukl also be exempted. on the ground that they are not spoken of in the jireauibk'. 109 A 111(1 that llio rule laid (lowii in tlio (.'naclirii,' {•lausc would not apply to tliem in ovrry possible case ; and llie lan;^nia«>-e of 1 lie coiu-t Avoiild then he: no Seii^mior can be oi>linrs an dit i)ays de la Nou- •'vcllc France ayent a eoneeder aiix habitants les lerres qu'jlg " lour demanderont dans leurs seigneuries." It appears lo me that, aceordin,L,Mo the plain ineanin"- of :hes(' words, they apply to every owner of a/zV/', irresjiedive of ihe period at which such //V/' was granted by ilic Crown. We know that the intendants hidd the ])r()visions of this ';nV7 to be applicable to all seigniories, whelhcr granted be- fore or afler the promulgation of the firrct of Marly. Of the numerous seigniories reunited to the Crown by the judg- ment of the 10 M;iy 1711, in accordance with the jjrovi^ion,'* of that arret, as the proceedings expressly tieclare, a con- siderable numb(>r were granted afler 1711. If is true Pial that proceeding was founded on the first enactment of the arret, wli(>reas it is the second thai is now ur^ed against the Seigniors ; but on comparing die two i^linses, it will be found than the argument now advanced is weaker as against the second, that asagainst the iirst enact- ment of the arret. The crown lawyers and others who wrote in relation to om- laws, soon or some time after the cession, speak of this ar;-(?7 as applicable to all se:gniories without exception; (1) and in the diflerent cases in which it has (1) Vide report of general Murray, Rovornor of Quebec, to the home govcrninonton the Mate of tlio proviiiee of Quebec in 17(i2. J'Thoteiuirooflnnilshoro, ih of two sorts. lo. Fiefs nml seigniories. These lands are '|ilcomod noble, Ac By law the Seignior i.s restricted froinseUingany part of hisland I tbat is not cleared, and is liliewi.ec obliged (reserving a sufficiency for his own private aonmin) to concede the remainder to such of the inhabitants a.s require the same at iin annual rent not exceeding one sol or one half penny sterling for each ar- pcnt in superficies."- • • • 'Smith's History of Canada, vol. 1, appendix from page 4,^ to 71. Seoalso Mazeres, draught of report for gov. Carleton, 27 feb. 1769, collections of Mmtmssious, Ac, by Francis Mazt)res, itc, atty. genl. p. 21. no A ' 'I'l ■I,!, I 'J ; boon citt'd since tlu* cession, it does not seem to Imvc Ihcm relerred to hy any Mietiibcr ol" tlic bar or ol" the hciuli ;|. beini,' a[)|)lical)le to any one class ol" seigniories more tli;iti to another. {2) For these reasons, I ihinli that the provisions of the an-il irifiiiestion nnu.t, as a <,'eneral rule, l)e held toexiciid i(, nil grants, \vli(!lher made before or alter the date of lluil law, nnless the terms or object of the i^rant were siurh as clcarlv to cxeliuli^ it from the operation of the arret. (3) Second question : — W(;re the arretx of 1711 and 17.32 re- peah'd by the; passing of the Canada Trade Act and the Te- nures Act. The rights of Seigniors in Canada were not, I think, in any way all'cctcd by the Canada Trade Act or by tln' I Tenures Act, until they had availed tliemselves of the pm- visions of those acts. Tjie statutes relied on, it is true, treat Seigniors as proprietors of their //V'/'s including all their uncoiiceded lands ; and the Seigniors doubtless were so. But iVom that it does not folio v that they were nt)l iindif an obligation to concede those wild lands, as rtMiuin'd ii\ the iirrtU of 1711. The right of ownership and the limit;. tion of the exercise of that right aie not incompatible! with ofU'li other. All the Judges, except M. Justice C. INlondelet. hold that the Seigniors in Canada are and always were really propri(;Iors of their //>/\, still we hold that alter 1711 the exercise of their rights as Seigniors, was limited by tlie obligations to concede their wild lands. Also nnswor liy Mr. Mrizorea fornioly ally, ponl fortho province of Qut'lici' to Mr Cu;;net, .tc p 'lU Soo also 11th scut, oi' ilio ilniiij,'lit of tho ii.H of parliauicit j/re- parui by Mazorei* for settliii)^ tho liiws of llio priiviin'o of (Jiioduu. Tracts ou tho j:;iiv«rninont of Ciinmlii. Loiidoii 17!)1, p 27 Also abstract of the several royal edicts and declarations, Ao that wore in fmve in the province of yiichoe in tho timo of tho trench f^overnnienr, provinco of QucIkm' t ) Mr I ho act of parliaiiK".it!.rt- .11-, (to that wore in Imve .n un,-iit,&o., rollce'tedtVMnre- ry to the governor, au'l '■1 •hiof. ,,r va. Stanley nnl l'"''"'" o of soouring the firowouJ, n» 111 h 'I'lie acts of the iitiperial parliament declare, that it wouhl be lor the general advantage ol the |)roviMee, to chairgc the UMiure ol" the lauds in (pit!stion ; hut those luws do uot lay down, and ele:i 'y were? not intended to lay down atiy luh- ax to what the ri !its and ohiigations ol' Seigniors were in relation to their \. ild lands, under the existing tenure. The ohjeert of the Legislature was lo substitute, as far as possible, the tenure of Iree and couuuon soecage lor the feudal teinire ; not to change the leiuhil teniu'e while it lusted, by the abolition of hiws which h;id modilied it. not in the interest ol" the owners of //r/iv, but for the benelil of on of the imperial ac-t« d ad\ the public. In a word, the intenii duch was to .ive us a tenure which was deemed advantageous, in lieu of one that was deemed objectionable, and not to cli;'iige the existing tenure for the worse ; whicdi woidd have been (lone, had the power been given to Seigniors <'ither to eonei.'de or not to concedt; their wild lands at their opiioti. I am therefore of opinion that the passing of the Canada Trade Act and ofllie Teimres Act had not tin; t Heel of repealing the arrr/s of 171 1 and I7;JJ. Third question : — Had th(! arrrfs of 1711 and I7;]2 fdlen into desuetude before the passing of the Seigniorial Act ol 1851. If I wa're of opinion that tin; arn''i ol 1711 recpiiretl all Sclijniors to concede their wild lands at one uniform rate, 1 would not hesitate to say that it has fallen into disuse. For a universal usage to the contrary has existed at least for nearly a century, and this usage has been sai^ lioiu d by iimumerable decisions of all the tribunals of the country. Hut holding, as I do, that although the arrrt of 1711 eoui|)els Seigniors to sub-conced(! their wild lands, yet that it does not compel them to do so at any particular rate, or interfere with agreejnenls voluntarily entered into between tlieni and their Censilaires, i cannot say I know of any usage Mi :i ^: I I i i 112 h opposed 1o that law so 7indrrslood or to the arrdl of 1782 (in so far as regards unconceded seigniorial land), \vhieli would justify me in declaring those laws to be no longer in force. Tli(! law on this subject is well explained by Solon. (1) " L'abrogation dc la loi par Ic non usage repose d'lin euh' " sur le concours taeite ct general du penple qui refuse dc " I'executer, et d'nn autre cote sur la volonte da J.egis- " Jateur et I'autorite qui tolerent cettc non execution." Among the rules laid down l^y the same author as to iho facts necessary to cstal)lish that a law has gone into desue- tude, are : " lo. Que les faits sur lesquels on veul fnirc " reposer la desuetude, comme ayant abroge la loi, soicnl "mullipHes; ct 4o. qu''ils puissent elrc en quehpie soric '•'• atlribnes a la generalite des habitans ; (acilc omni"m "•' coiisctisn.'''' (2) I do not know that the owners of ftcfs in Canada ever made it a general and public jiracticc to refuse to concede tlieir wild lands in order to sell, instead of conceding the same ; and it can hardly be contended that any such practice was actiuiesced in by the people generally and sanctioned by the authorities. It doubtless has been n>- j>eatedly contended that the Seigniors were not under any restriction, either as to the conceding or selling of ilicjr wild lands ; but these pretensions have l)een vigorously rcsistcnl as well by the people generally as l)y their rcj)rc- scntativ(>s in parliament; and although the resolutions of one ])rane!i of the Legislature cannot be cited as having force of law, yet upon a question of desuetude which depends upon the cnncoiirs general du pevpJe as Solon says, the formal and reiterated resolutions of the representatives of the people in parliament cannot be deemed unimpor- tant. (3) M (1) Solon, p. 3!)1. CD Solon, p. ;;i,i5. (;i) Slo iT.-olutions of IIoupo of AsiJembly of L. C, of 16th of February 13'23 anJ 2-X\'. J;iiiuiiry IbJ^, 4 vol. Seigniory Due. pp. 33 and 40. XL' cut ion. robruarv 1323 and 2r:th 113 /* As to Ihc decisions of tlie tribunals, I do not know of any one judgment declarini,' tliat Seigniors were not under a legal obligalion to concede their wild lands, or that they had right to sell the same ; on the contrary, llie cases of Carticr vs. the Baroness of Longueuil, McCallum vs. Gray, Lavoie vs. the Baroness of Longueuil have a directly contrary ten- dency. Much stress was laid on the fact ihat no instance can be adduced of a Seignior having been compc//cd to sub-concede by legal proceedings. But Ihe mere fact that the arret of 1711 was never enforced by judicial proceedings would not justifiy us in saying that it has fallen into disuse. 1 quote again from Solon. " Jusqu'ici nous avons suppose que la loi etait abro " gee par des actcs conforvics ct miiUipUes ct fails en op- '' posilionuscsdisposUions. Nous devons prevoir le cas, " ou cctte loi etant ancienne, n'aurait point eto cxecutoe, " sans que ccpeitdant I'usage efit rien consacro de contraire " u scs injonctions ou a scs defenses. On tenait aiHrcfois '' pour certain ([x\c, dan^ cctte hypothese, la loi n'etait pas " abrogee. Cctte opinion nous parait exacte ; nous nc pou- " vans pas concevoir cVabrogation smis Jtne csplcc iVopposition " cmanec ilu peuplc. II faut mi usai^c contraire, etc. " In one of the questions submitted to us by the learned counsel for the Seigniors, it is assumed " that the courts of "law within this province have constantly treated these " ftn-e/if as not in force." I have, in consequence, prepared and have now before me a note of all the cases within my knowledge bearing on this point, and it is very far from sup- porting the statement to which I have jnst alluded ; but as the learned presiding chief justice has referred fully to each of those cases, it is needless for me to comment upon them. 1 will therefore content myself with observing that chief justice Smith, in 1792, as president of the court of appeals, in rendering judgment in the case of Culhbert vs. BariJ, ex- % ItH :5 t 3 J- 1/ '? Hi .-I i_ iH^' I"-; i' ■< :i> ::ra' J.:,;, 114 A pressly declared those arrets to be in force. In 1810 the court of Queen's bench for the district of Montreal (composed of chief justice Monk and of judges Ogden, Re id and Fou- cher,) by overruling the demurrer in Carticr vs. the Ba- roness of Longueuil, impliedly declared the arret of 1732 to be still in force. The same court, in 1820, chief justice Ileid presiding, by dismissing the declinatory excc))tion in Lavoie vs. the Baroness of Longueuil, not only held the arret of 1711 to be in force, but also held that that arrM could be exercised by the then existing tribunals. The judgment of the same court, in 1828, in the case of McCailum vs. Gray, in effect recites the provisions of the nrr^t o( nil as being in full force; and three years after- wards, chief justice Reid, as president of the same court, (the other judges being Mr. justice Pyke and Mr. justice Holland) in rendering judgment in the case of Guichaudand al. vs. Jones, observed : " The only question is as to the " construction to be put upon the deed in question ; if it is " to be considered as a sale of land en bois dcbont, it is " illegal afid void according to the laws of (he country." A plainer declaration as to the arret of 1732 being then in force, could not have been made. (1) Within the last 15 years, the provisions of the arret of 1711 have been pleaded in a considerable number of cases, in the district of Montreal, and the judges invariably held, as we now hold, that the laws of this country have not esta- blished a uniform rate at which Seigniors could be com- pelled to concede their wild lands, but I am not aware (and I was professionally engaged in most of those cases) that any opinion was expressed by the court or by any one of (1) Poo niso llic evidcnco given by Mr. O'Sullivan, afterwards chief justico of Iho district of Montreal, licforo the Caiiaila commissionors in 1835, i):if;c 50, of their report. The evidence (jf tiic atty. j^enl. is to the .same effect and will bo found p. 47. Neither of tliose officers was of opinion that the arrets in question had fallen into desuetude. I. 115 A the judges, as to those arrets having fallen into disuse. It will also be found that, in several judgments rendered by the superior court for the district of Quebec within the last three or four years, the provisions of those arrets arc recited in the motifs of the judgments as subsisting laws. (1) I was, at one time, under the impression that Seigniors in Canada were not under any obligation to concede their wild lands ; but with the information on this subject which I now })osscss, (many important i)arls of which have not until lately been generally accessible) I have felt constrained to abandon that view, and now find it impossible to ac- quiesce in the p oposition, that the courts of law have con- stantly treated ilie arrets in question as not in force ; or to declare that those laws have fallen into disuse, tacile om- nium consensu. c same court, (1) Langlois vs. Martel, SJ. L. C. Ropta. p. 51. V r-IM m TABLE OF CONTENTS. PAGIS. PART 1. — Cens et Rentes ,1 Section 1. — Rights of Seigniors under the Custom of Paris, as to tlie concession of their lands 1 — 2, — Charter by wliich Louis the 13th granted Canada to the Company of tlic hundred associates, afterwards called the Company of la Nouvclle-France C — 3. — Seigniorial grants by the Company of la Nouvelle-France 13 — 4. — Seigniorial grants by the West India Company 24 — 5. — Grants subsequent to the dissolution of the West India Company and down to the arrets of Marly % — 6. — Arrets de Retranchcment 32 — 7. — Sub-infeudation of wild land does not seem to have been made obligatory before the arrets of Blarly. . . 40 — 8.— Arrets of Marly 42 — 9. — Seigniorial grants from the arrets of Marly down to the cession of Canada to the Crown of Great Britain... 51 — 10. — Observations on the maxim jm rate of 2 sols per arpent proposed by Altorn ^y C.eneral 59 PART 2. — Reserves and prohibitions 69 — 3.— BanaUte... 75 — 4. — Rights of Seigniors in the rivers watering their seignio- ries. Sections 1, 2, 3, 4, 5, 6, 7, 8 79 — 5. — Counter-Questions of the Seigniors , IM '! ■ ' - i ^ 'i:! 'I'M! Hi li OPIIVION ov Tni HONORABLE JUDGE BADGLEY. To arrive at a satisfactory determination of our present in- vestigation, which involves a variety of usages, rights and duties, extending from the early settlement of Canada to the present lime and, applying to settlers of two distinct national origins, and which presents diilbrent views and aspects at different periods, obviously demands something more than the mere collection and collocation of doctrinal or judicial authorities, and necessarily requires a close examination and consideration of no small portion of our provincial history as well before as ahv.r tlie Cession of Canada to Great Britain by the Treaty of 17G3. The discovery and subsequent occupation of Canada by French adventurers necessarily subjected the country to the domination of France, and to the public laws of that King- dom, as a part of the Royal Domain, which embraced not only Canada pro))er, but also, from an early period, the whole of Acadia, which with Canada was then designated New- France, la Nouvellc France. From the middle of the sixteenth century, when Cartier ^ixplored the river Saint-Lawrence, until the early part of the succeeding centiuy, no permanent French settlements had been established in the country. Various attempts had been made with little positive success, but the temptation oifered by the trade in furs and skins of wild animals was irresis- tible, and in consequence, early in the seventeenth century, the combination of commercial enterprize with the spirit of foreign adventure then pervading civilized Europe, led to the permanent occupation of the country, under the direction r ,.' ,, 'I 'i I ^ I i > M 2i of Cli;imi)Iain, at his scxond voyage in IGOS; tlioncc forward llio attention of the French Monarchn w a^ favourably diirct- cd to the only Colony ft)r.> "than for the Kinir's advantam* that the culiivaticii of ilif " land had been so little encouraged that liiese persons wen " supported by suj^plies from Fr;:nce, and that they woulil li:ivc " perished had the annual arrivals from France been delayed " for a month beyond their usual pi riod. " The accredited French records demonstrate thai in 1CC6 the population of Canada had reached to 3,418 souls, wliitl; had increased to 9,400 in 1G79, in 1710 it was 22,530. 37,152 in 1734 and at the conquest in 1759-17G0, the esti- mated population was about G(),000 in the whole. rr thence forwan^ t'ourably diirci- iiicc, wliilst tin.' a it, cn-alcd in sfcttlornent iuicl yof the country. an contests, in tring the seven- variety of loc;i! :ise of the popii- ony, dnrini,' the ich empire. t eonte)n])lat('(i r chief inchin^- niore or less in- been made, and individual cn- om a monopol}' # increase ^vorf• tviotie eonsidf- 1 Cli.'irler incor- oeiates in 1{)27. y, \\ herein forly ereial pur))es('> I i vat ion of dir e [)ersons were hey woulii liavc e lj(>en dekivcti e thai in ICOO 18 s(Mds, which t was 22,530. -17G0, the e^ti- hohv 3 i Until the year 1G27, Mhen the Chartergrant was executed in favor of the Company of the Hundred Assocdates, the his- tory of the Colony exhibits frecjuent disastrous and nn- sueeessful attempts at .settlement, whilst, at the same time, tli(! most extensive and arbitrary powers were conlided to a su(;eession of (Jovernois appointed to administer what was in I'aet a wilderness, tenanted solely ])y rovini^- tribes of Savaijfes who acknowledged no suljjection to French autho- rity, but who, it was believed, might be induced or at worst coiiipelled to yi(dd to French power. From Iloberval and (le la lioehe, the latter aulliorixed by his commission to "engage in the |)orts of France such vessels, (!aj)tains and " seanjen as he might require ; to raise tro()])s, make; war and '' build cities in his Vice; Jloyalty, to make and pronmlgate " laws, witli power to eidbrci! them ; to grant lands to gentle- '■ men with the lilies ofy/r/x, sii5 expedition to America ; down to de ]Mon1s who brought out Champlain a second time, and who was aj)pointed Governor and Lieutenant, by whom Quedocc w^as founded in 1G08, when the setllcinent of Canada may be considered to have taken its rise, all were more interested in the success of their trading advenlnies than in the colonization of the country. Tlic po\vers d(degated to those ollicers of a despotic cha- racter indeed, whedier executive, adndnistrative or judicial, win; all united in one hand, and, aldiough better lltted for an old established and populous Colony than for an infant set- tlciiK ut, may nevertheless have been justified by the cir- cmnsiances of the time and the state of the country ; they were however continued until the grant of 1G27, and some of the most important of them even long beyond tliat period file terms of Champlain's commission as given by Garncau in his 1st vol. Ilisloire du Canada, p. 127, are : " En paix, repos, tranquillite y commander tant par rner " que par terre ; ordonner, decider et cxccuter tout ce que III m'I ■'M- Jit • ii*! : ■'( 4i " vous jugerez se devoir et pouvoir faire pour innintcnir, " garder ci conserver les dits lieux sous r.oire puj.ssfnce r; " autorile par les formes, voies et moyens priv^erits pnr no^ " OrdDiinances. Et pour y avoir (gard avec nouj% com- " miltre, elablir et constituer tous ofHcicrs tjini e.s afliiires " de la guerre que de la justice et police povu' la premiere " foi3, (I de hi en avant nous les nouirneret presei;ier j}our "en elv" par nous dispose, et donner des lettres, litres et " provisiors tels qu'ils seront necessaires. Et s* lun les oc- " cur"f nees des affaires, vous-meme avec I'avis de gens " prudenls el capables, prescrire sous notr« bon plaisir des " lois, stjitnts et ordonnances, autant qu'il se pi>urra, co/i- " formes au.x ndtres, notamment es choses et matieres uux- " quelles n est pourvu par icelles." It has been well observed by Garncautiiat in the exerciser' these powers : " les Gouverneurs n'avaient po'iv terripe'er i(Mir " volont'; que les avis d'un conseil de leur choix et qu'ils " n'etaient pas tenus de suivre. Ce systeme avail peu d'iii- " convcnients dans les commencements parce i[i\c !a pliipait " des planteurs 6taient aux gages d'un Gouvcrneur nu d'lir.f " Conif ngnie sous les auspices desquels se formait l'etal)li> " sement."" The last Canadian Company established previous to tliat of the Hundred Associates was formed by Cl!:irn])lain in 1611, af'tually for trading purposes but ostensibly lor tlio co- lonization of the Colony. Its existence was limited to a period of fifieen years, and to promote its success and aflord it protection, it was placed under princely jiatronage, first, that of a Bourbon, the Comte de Soissons, who was succee- ded by the prince de Conde, who afterwards ceded h\- patronage to the Duke de Montmorency for 1 1,000 ecm, and which was finally ended in the hands of the Duke de Ventadour in 1626. The patronage of these eminent noble- men was evidently obtained for the support of the commer- cial rather than of the colonizing purposes of the Company, and the price paid by the Duke de Montmorency shews thai r ^'avis dt' yens 5i ihe adventure was considered exlremcly lucrauve. " But " even to llie last moment, complaints were mruie to the " Diil-e (le Ventadour of (he indiflercnce of l!ie Company '■'' to the inl'Tcsts of the Cokmy, which was re| irsented as "- only r('(|uiiing a little assistance to ilourish and pi().s})*^r." It wfis under these last circumstances that Cnrdinal de Richelieu projected the Company of the Hunched Asso- ciates, to wiiom he proposed, in the King's name, a proprietary grant of New France under tiie very favourable and ex- tensive terms and conditions contained in the instiumenl (;sta])lishii\'^ the Company. The Associates, amonij other conditions, were nnjuired lo establish a joint stock Com- pany for vHectin^' their enterprize, to be governed by articles of association which were afterwards approvcul by lliche- lieu, and the Com|)any was named " The Comjjany of New France." ^Their capital was 300,000 livres, £1:2,00 > 0, divid< M into 100 shares of 3,000 livres or £12.5 each, of which i JOO livres or £41 13 4 was to be payaijle within tlie year, and the balance by instalments at the call of the direct )rs. The instruuKmts and articles of association were fully ratified and approved by the Royal letters patent of 6 May, 1628, and the Company thereby became fully con- stituted. The complaint against the last, or Champlain's Company of Canada, as stated in the Charter of 1627, " that they had " so little power or inclination to settle and cultivate the '' country, that during the fifteen years of their charter ex- " istence, they proposed to carry over only fifteen men, and " tluil even at that time, after they had existed for souu years, " that they had made no attempt or preparation wha1(;ver to '' perform their obligations," was endeavoured to be removed by the new Company who pledged themselves " to employ " their best ellorts to settle New France called Canada, " and among other obligations " engaged to transport io Ca- " nada in 1628 two or three hundred mechanics, and to in- " crease the number of settlers there to 4000 of both sexes •I; / ■ :i . 'i ■ . it : r . .'■ ■■(' V, I I •J i M.v* i li. il-' i i: I -^^i •; f j • ; ' ! , I ill 6 t " (InriniT flip ronrso of ilic following; years fo oxpiro in 1043, '' siipporlini,' iIkmii fortlircc years aflcr their arrival, ami iil'tcr " thai tiiric scttliiii^ thoin on clrari'd hinds with siillicicnt " whoaf (or seed and their support until the next harvesit, "or af/nntu'sr providit/'jc for tfirm in such manner that they " might hy their own industry and labour sup[)(>it them- selves in the coiuitry." i( The Royal grant was a full j)roprietory conveyanei" to liic Company, thoir heirs and assigns for ever, in full {property, justie(! and lordship, rn ])n'i)iHuU(i, en plvine pro pr id t<\jii slice et seigneurie of the ft)rt and habitation of (Quebec, logetlicr witli the entin? country of New F'rance called Canada, including rivers, lands, mine and minerals, ports and havens, streams, rivulets, ponds iuid islands great and small, and generally the whole extent of the country in l('n^th and breadth, &e., &e., together with a variety, of riy wi^re daily exposed to be drivcti av.ay by the attacks of the Iroquois." In May, 1GG4, Letters Patent issued, establishing a second great proprietory Company called " the Company of the • IHI 7t Wost IndioH," to ^vllOln woro ^'rtvntcd fill tlir Frpiich pos- sessions in Africa, in Xow Fnincio, and th«! VVosi Indies, with the monopoly of tlie trade in tlios(! countries and a variety of powers and privilegtis ; l)iit this Company was even less sucfN'ssfid than its predecessor, and after an existence of iibout t(.'n years, IJM'ir Charter was revoked in 1(>71, and all the territory ^'ranted to them was reunited to the Kind's de- mesne, to be ihenial'ler governed and administered lik(; the olher fonds et domaine de la Cuurunne. Monsieur I*etit, in his Ilistoire dcs Colonies Fnin^ais's en Aincru/itCy observ<'s : " The object of tin.' establislimen' '' of these Colonies was the creation of means for the foi- *' mation and extension of national conuncrce, and every kind '' of en(•oura^'ement and support was extcndetl to the Com- " panics by the state. 'IMiat (tf 1GG4 was unable to realize •' thes(! views, and the King abolished that Company by his •' Edict of December, 1G71, which reunited to his demesn(? " all the gratit(!(l lands and ct)un1ries, to be ieur sans " terre.^^ See also Guyot, Traite des Fiefs., 1 rd. p. 440. Freminvillt!, Praticien des Terriers, 4 vol. p. 449, and others, who all sustain Ilenrion de Pansey's position. The form of the Royal Grant in this respect was govern- f'd by the principles of the public polic^y of France above ad- verted to, for the purpose of maintaining the connection ■. / tlie granted territory with the Kingdom, whilst at the saric lime Ncnv France, as a French Colony, and considered as a portion of the Royal demesne, becam(; subject to the public ffeneral law of France, as has been well observed by Petit : — " Th(! public demesne of countries discovered by France, :^r '' united to her by treaty, become of right an integral portion " of the French public demesne, and the legislative disposi- " lions of those countries posterior to their union also be- " come subject to the domanial legislation of France, and " to that legislation of general interest and "^nblic policy " which is fundamental to ihe French Slate.'' The proprietory grants of 1627 and 1664, after reciting llie ccnveyance to the Companies of the graaied country, to its full extent and contents, for ever, in fu!' i roperty, lordship and justice, settled the consideration of the grant, at a reserva- tion to the grantor himself . nd his successors. Kings of lil! ':i A ill ! : .) 10 « Franco, in recognition of Sovcrcingty and in conformity with the above stated rcfjuirements of tiie pnl)lie hiw, of llie mere fealty and homage, rcssuri de hi foi ft /iomma<^(\ to lie por- formed l^y the grantees upon eaeli change of Sovereign foget^'cr with payment of a gold crown. Three grants of little importance apjjcar to have been made by C'ham|)lain's (Company previous to the Charter of the I{undrs, the extent and nature of the i)roperty granted, with its tenure, incidents and rights, ])ut also of the laws and institutions of that part of France from which the settlers cluelly emigrated or ])roceeded, the iminicipal law itscK of the Colony in connc(!tion with the grants, their ob- ject and intent, together with the contemporaneous constrnc- tion given to their t(>rms, conditions and stipidations, and the usages in connection with them, during the long period of their existence and recognition by the judiciature and legislature' of the Colony, French and British, Imp(!rial and Canadian. The apparently wide scope here presented will, notwith- ■Htanding, occupy but short space ; a large mass of detail m 'i-: '-'A 11 i fcirniity with of llw" incrc V, to be p'T- f S()V(.'r('ii,'n I have hocii o Cliarlcrol' )y tlic i^rcat , to wliicli a Tiade by llif ' Kinii:, until elledoiit into covcrinii: the It. I^awrciicc ill breadth to made early at llie bot- il is excep- a con.-idera- tlie infants L'rty granted, ihe hiw s and Ii the settlers il hwx itM-lf ts, tlieir (ib- M1S constrne- dations, and long period i(!a1ure and nip(!rial and ill, notwitli- iss of detail having been eolleeted together and explained by tlio Pre- sident of the Tribunal, n^piires no repetition, and the result only need be noted, whilst the remaining jiortion of th<^ sid)jeet matter ^vill be disposed of ;is sneein<'tly as its nature and importance will admit, premising however that mere law and legal controversy have comparativcdy but little connection v\ith the explanation or detcrnunalion of the points of dillicidty submitted to us. It was in anticipation of the necessity for this examina- tion, that the previous remarks upon the early adnnnistralivj! and proprietory history of Canada have been made. The jirinciple of genc^ral public law already adverted to, which apjjropriatcd newly discovenid and savag'* coun- tries to the nation whose subjects first possessed and occupied tiiem, and authoriz(Hl the national re|)resentative to dispose of them as the patrimony of the nation and as part of the national demesne, may^ be assumed as an incontrovertible and acknowledged principle of French law. The extent and nature of the grant, subject to the liirutations of that law, were restricted only by the Koyal will and the object i,'ontemplated, nanudy the settlement of the country, subsi- diary nevertheh'ss to the commercial advantages, and the increa.s(! of funds in the national Exchetjuer from the pos- session of the colony ; hence the gnuits of 1G27 and IGGl were in fidl and absolute property of the entin; territory in- cluded within their terms, with unlimited authority and right to allocate and distribute? the coimtry in such cjiian- titics, to such persons, and uj)on such terms as the Com- panies shoidi!r.i.3e, but in no manner limited or controlliul the j)roprietory effect of the grant itself. These grants offer no peculiarity for remark, if the cir- ( nmslances of the time at the progressive periods ,f the grants and the nature of the granted Coimtry be considered. In conn(>ction with the increasing desire in civilized and maritim(! Europe for the extension of foreign conunerce and the conse([uently anticipated enrichment of the Nation, a so- licitude for colonization became generally prevalent and strongly manifested itself in France as well as in other Eu- ropean Stales early in the seventeenth Century. However desirous therefore the French Government from the time of Jlieh(dieu downwards, may have been to augment the eouimereial wealth of th(! Nation, French Statesmen ex- hibited a great political anxiety to extend the Iin[)crial possessions of France by means of foreign Colonies. The language employed in the public documents by which the proprietory C»)mpanies were established and revoked, as well as that used in the Arrets de retranchemcnt or orders of revocation registered in Canada of grants of (Canadian territory and the expressed or broadly implied condition ol settlement to b(! found in the several grants themselves pre- vent all doubt upon the subject, whilst the futility of the desire is apparent in the frequent revocation of royal grants, tiie slowly increasing population of the Colony from natural causes alone, and the acknowledged inability ol France amidst her European contests to furnish settlers, except of the military class ordered out for the military pro- tection of the colony, or of a description of forced emigrants, who were sent out as a relief to the mother Country rather than as an advantage or assistance to the Colony in the way of settlement. [> I !,l 1^ I I ! ! I 14 ^ Tlic scltl(Miirnl of the Country bcciunc liowevrr at lasi iVorr: political motives the paramoutil consideration in tlic Uovui mind, and to losltir and cnconraijc that important object, a^rants were jjurposeiy lavished under the persuasion that private interest and '"Uerprize would more readily ejli'ci liie ])ur])ose, than the eOorts of the Government under the con- trol and superinlendanee of its aij^ents ; liie Coimtry was in conse(|uencc parcelled out by i^rants evidently in many in- stances beyond the means and cajiacity of the i^rantees, as will be apparent from the fact that up to 16G7, upwards ot seventy ,i,'rants had been made coverini^ more than of -10,000 superficial miles, and necessarily spreading over a nincli more extended surface from the grants not bein.i( (;ontii;ii(ins, w hilsl at that same jx-riod tin.' entire populati(»n ol llu" Co- lony ditl not reach 4,000 souls of \\ horn the lar'- ^t portion were in (Quebec, and only 1 1,000 ('rz/yr/z/y, acres ol land, were under cidlivation. The same lavish system of land grants was contiimed during the entire jieri »d oi '.lie French lioiiii- nion, with this diirerence only, that the relative di>pr(i|)oi-- tion between t!ie extent o( the grants and the atiionnt ol' the population was greater after than before the year last nieii- lioned. 'l'hes(,' proprietory sub-grants as v.cll as the siil)sc(jii('ii; l\0}al grants invariably ])ro(essed to convt^y the full and un- limited pro[>!'rty in the land or really described in them \i\ the usual formida eii ioiili' proprieli; for ever, to tl'.e gr;;n1'T, his heirs and assigns, with absolute^ power of disptisal ami distribution of tlu' estate granlcMl, but subject to the sjierial condition of settlement and im|;rovemenl ( xprcsscd h} another formida dr Iniir J) a rt li ('i>- •"•' st porlioii Dlland, were land ^raiils "icncli lioiiii- ■(' dispnipor- IlKHint of till" ar lasl iiicn- > sul)S('(|urii; I'nil and nn- I in tiiiMii li;> tl;o i,n-;;n1"r, ii-en land- ed in tlic Country. The grantee was therefore in fact at perfect liberty to im prove his grant by Ins own hands, l)y the labor of his ser- vants, l)y leasehold tenants, bysnbgrants or mode of any other alienati(.)n which he should dwxn best for his own interest, but always at the same time liable to the special j)enaltv of for feiture of the grant u])on failure to accf)mplish the condi- tion of improvement : in truth no revocation of a Koyal grant was ever made Ijy reason of any other cause or breach of condition on the part of the grantee. French jurists concur in considering such grants a,« convf^yances of the full proprieloiy and domanial rights' ill anil over the properly conveyed. Merlin Rcpi iloirv dr Jiirisi)ni(U'na\ vo. Do/naf/iv, p. 755, st il(.'-< it " an incom- lantable ))roperly," Guyol, Trailc drs Fiijs^ 1 vol. p. l.j.O, and Ilervc, Malirrcs Fcodalt'S it Ct nsi/c/fi s^ concur with Merlin, llerve observing " wlicn f can giv(>, sell or alienate " my pro[)erty in any \vay, ice, in a word disj)os ■ of it a;* " I |)lease, it must be admitted that ! possess \\ivj/fs vtindi it '■ ahiitcndi \v\ which true properly consists." It is true that iliese authorities ap])ly to holders of properly in France, where titles could not at all times be produced, and pres- cription was more fretjuently invoked than title, yet how mnch more is the right of properly assured in this Country, where the Koyal right to grant and the grantee's capacity to receive were alike un(iuesliona])le and visifile in existing deeds, and where nothing in the language of th(> grant or of llic law of the land was found to limit the absolute prop(.'rt\ in the estate coi:veycd. The grants becam(! t)f course t(^chnii-ally synallagmatical conlracts between the King and his grantee, flerve, I vol. p. 3SU, says : " The lirst fundamiMiIal principle is that the " grant oijirf ii, a perfect synallagujalical contract ; indeeci t I lit ' I ! I M I ) 16 i " tlin lord's obligation, under thn conlract, to givo to tlir *' Vassal full enjoyment of the object granted, in the mari- " ner agreed upon, and the Vassal's (obligation to maintain " a constantly subsisting acknowledgment of the lord arc " two essentially correlative obligations and equally jorinci- " pal which cannot subsist independent of each other and " from which a direct action results to each party." Sutii a contract necessarily became subject to the municipal law of the Colony for its construction and enforcement in so far as that law could be rendered applicable ; it therefore be- comes necessary to ascertain the nature and extent of tlia; law and its applical)ility to the contractual grants them- selves. Until tlie creation of the Snpcriour Council of Quebec in 16G3, the only at-knowledged law of the Colony was to h found in the Royal Instructions contained in the Commissions of the Governors " to make and prescribe Laws and Ordi- " nances subject to the King's pleasure and as conformaMc " as might be with existing Royal Laws and Ordinances in "matters and things not already regulated by the latter." Charlevoix, ITistoire (hi Canada^ 2 vol. p. 135, says: " Until " 1663, no Court of Justice could properly be said to cxi^! •' in (^anada ; the Governors judged upon diflTerences sui)- •■' mitted to them in a sufilciently arbitrary manner, aj)- " peals from their decisions were not thought of, their Arrih " or judgments were generally rendered only after arbitrii- " tion had been inefTectually attempted, &c., &c." "In 1610 " !\ Great Seneschal of New France was appointed, and ;i " jurisdiction established at Three Rivers for this militu'-; " magistrate, magistrat dc Pepee, whose functions however " were subordinate to the powers of the Governors, the lattt-r " invariably retaining in their own hands the adminislra- " tion of justice whenever application was directly made " to them and which very frequently occurred." This system continued until the establishment of the Sii- periour Council of Quebec in 16G3, composed in the first in- I I ■ I ! it I 17 I Blanco, of ihc Govornor, the Bishop and fivo Coun(!illors, solcfk'd l)y the Governor and Bislioj) ; hy a siibsccpionl Royal Arrety the Inlendant and five other Councillors, were added to the original Coun(ul. The jurisdiction of the Council was supreme and final in ifect in the Colony in all matters civil and criminal, but not as aCourtof original jurisdiction. The Council were required to judge accnrdinii; 1o the Laws and Qrd/'nanees of the Kingdom^and to adapt its proceedings as closely as possible to the form and manner practised and observed in our Court and jHirlianient of Paris: the King reserving the power and right to himself 1o al)roga1e or alter existing laws or to enact such olh(;rs as he might consich'r most advantag(K)us for the inhabitants of the Country : whereupon, Charlevoix descants upon the Royal anxiety to secmx; a prompt and ready administration of justic(! and remarks tliat " the Superiour •' Councils of Martinicjue, Saint Doiningo and Louisiana •• \vcr<' formed on the model of thai of Quebec, but tliat all " were Military Councils : tous ces Conseils sont r/V/;tr." They could scarcely be otherwise with a Military Governor at their head, whose influence was paramount. The enactment of i)olicc laws for general as well as spe- rial purposes was first intrusted to the Intendant Talon in IC72. In the proprietory Charter grant of 1664, the King ordered ihat the Judges who were to be appointed, should decide accordhig to the Laws and Ordinances of the Kingdom, and that the judicial officers shonld act according to the Custom of (he Prcvote de Faris, according to which Custom the inha- Ulants might contract with each other, without admitting the Ifgal existence in the Colony of any other French Custom in order to insure uniformity. The original language employed IS : " les Juges d juger suivant Ics lois et Ordonnanccs du " Royaumc et les OJficiers suivre et se cotiformer cl la Coutume " de la Prcvote et Vicomt6 de Paris suivant laquelle les ha- i i 1 ') '! ' i i I ;! { I i I : i*\ 'II 18 i " hitants poitrront contrarlvr sews que Von y p/nssc inlroduirc " aucune. autre Coulume puur eviler la diversile.''^ Until 1663 tliorefore, the Colony wa8 without civil trihu nals or municipal law and was siil)j«'cted to the nrbitnirv power of the (Jovernor or of the Military Senesehal at Three Rivers, presumably subject to the inlku-nee of somucli of llio public general law of France as accompanied the French emigrant and was applicable to his condition in the wihior- ncss of Canada. By the Ordinance establishing llie Siipc- riour Council, the Laws and Ordinances of France forthelirsi time, became the legal texts for the Council and the Jiidi,'!'?;. whilst tlie Custom ^^f Paris was declared to be the only law for the regulation and enforcement of contracts entered into by the inhabitants with each other. This last provi.sjon was evidently introduced to prevent the continuance ol' the Norman Custom which, up to that time, had probal)ly been generally followed, the Normans having been the firsl settlers and in consequence till then the appellate juris- diction reached to Rouen and not to Paris. The Custom of Paris was not introduced in any more formal or explicit manner, or by any other public docunicn' or act of Legislative power, hence the Municipal law of tlir Colony from 1661, was composed of the j)ublic laws and Ordinances of France, in so far as they applied to the Country, and of so nmch of the Custom of Paris as regulated the contracts of the inhabitants, together with the loca' legislation established for and in the Colony by the Crown and its Executive Officers to whom that power was de- legated. The commonly received doctrine that colonists are ac companied to their new settlements by the law of the parent state, in so far as it applies to their condition in an infant Colony is scarcely correct in its application to France ui that period, with its various provincial Customs and local laws ; indeed France possessed no other established and inssc inlroduir- out civil trihu tlu! arhitnirv nschal at Three r sorrmcli of ihe ed the French 1 in tlie wilder- sliing llic Siipe- ineo for tlie firs', iiid the Judges, be the only law ets entered into 1 la.«;t provisidi; ti nuance of the I probably beer been the firsi ap])ellate juris- d in any more ublic doeunien' ;ipid law of thi' 'iblic law?* and applied to tin. ris asi regulated with the loea' y by ihe Crowi- )o\ver was de- ;oloni)sts are ac ,\v of the paren* on in an infan' )n to Franee lU 5touis and loea! established and 19 i settled Colony than Canada until many years after Clmrn- plain'.s .sfntleuipnt at Quebec in 1G08, and had no colonial legal system for such an event : after l()G3, the (^ustom of Paris beinj^ 5ict out in terms in the sub.sequent lioyal Co- lonial or charter fi^rant.s gave occasion to French jurists to allirm the maxim, that the Custom of Paris was exclusive Colonial law; but that maxim is not lo be found in any author until long after 1GG3, and its authority has always been supported by a nd'erence to public documents bearing (liite after that year. See 1 Ancien Deni/art, vol. Colonics Fran^;uis('s^ p. 502. The establishment of Colonies by Royal sufferance or urant in the first instance, with subj(!etion of the emigrants to the delegated power contained in the Governor's Com- mission, naturally rendered them dependent on the Royal will and the public laws of the wState withoiU consideration of the parti(!ular Customary laws of the parent French pro- vince from whence the settler had proceeded. Tlu sub.sequent introduction into the Colony of ary one French provincial custom by the mere; efl'ect of the Royal will gave it force of paramount local law to the extent of its express establish- ment, and to that extent alone it became municipal law; hence the Custom of Paris introduced as above was Muni- cipal only in so far as it regulated contracts among the Co- lonial inhabitants. It must be evident therefore from the foregoing that the so called feudal tenure of the Paris Custom was not and could not have been established in the Country by the Edict of Crea- ation of the Superior Council of Quebec, nor by the provi- sions of the Proprietory Grant of 1664; the tenure of the estate granted is in fact a creature of the grant alone and by that in the first instance imposed upon the grantee to the extent of its obligations : this is in strict conformity with ihe well established rule of feodal law tenor est q?n lefi^em iJaffundo, it is the tenor of the grant which regulates its efl'ect and extent : these were to be found in the stipulation 20 i ^fi ji'i i'^in :t'i of fcaliy, tlio recognition of and ohli^'alion to the (iiji>« and duties (-xpressed in \hr <^r,{i\i as iiirre convenlionul stipulations and (conditions, l)ut they did not introduce with ihcm tin* rifi;lits, ol)li<,'ations and incidents of the hiw of sci- t^niories, Fief's ct Cmsivrs, of the Custom of I'aris or of the Comiuon hiw of Fran(!(^ in relation to tliat description of properly, except in so far as any of these? laws had applica- tion to tlie terms and conditions expressed or lei,'ally iuipHcd in the ^'rant. This is striltipulations of censual grants known to the Custom of Paris, whilst the sub-grants t(j tlie krre tenants in Louisiana and the West Indian Islands were; allodial ignoring altogether the f«udal tenure of the Canadian concessions. Upon this part ol the sul)ject an exaiuination of the Hritisli proprietory grants of the American possessions, someofi hem made at about the period of the French grants, will shew the similarity of llu; nature and extent of the grants made by the two Royal National representative the con- currence in the extent o( Xha ^x'dn\.^ fuli property and lordship and the recognitive obligations of feally and render, the Spunish grants were also similar in these particulars ; yet in none did feudality as a tenure follow the original grant. Mr. Williams, Solicitor General of British Canada in 1790, and afterwards Chief Justice of the Province characterized iho matter in the following terms, in his report to the Executive Council of the Province in that year, upon the subject then mooted of the abolition of the feudal tenure : " There appears to be engrafted on the Royal grants a "fiction of feudal tenure drawing after it the servile " appendages of alienation fines. Quint &c., upon the '■ tenure en Jirf and loils el renles and the servitude of hanalile upon that en ccnsivc,'''' corroborating the origin of the tenure in the grant, but by error ascribing to a fiction. ' ' I M 22 i what in no (at as it was stipiilaicd, was a convention u« ro<(ar(ls the fines, 'ind what was posifivf-! stalilished bv Royal I^c^islati )n, as will hereafter be ntu i. a^' rogimis ilic Bnnafite- The jurists are precise upon this point of the eslal)li}*li- nicnt of the tenure by title alone, and their opinions arc tliiis summed \i\} by an etninerU modern French jurist Cham- [)i()nniere in his Treatise di's I'Jat/r. Coiiranlvs^ p. IfH), in whose work the citations will be found ami the priiuipic coriuuented upon at Icn^'th. " The //V/' is a contract luiviim *' like all other contracts substantial, natural anti nccidtnlii! "conditions; the entirety of these conditions fi)riii? the " law of the //V/", the law that /y^////c ^Y /vasi'C ///.v/Rr, avcc droit dc cliassr rt dc p^r/ie, at once and immediately converted the new made grantee into an exact imitation of the haughty Barons of ril m ■ ■■■i, 24 « France, whilst all the time tliiMr Iraitc avec fcs Sauva^cs, trading with the Indians, which was allowed to these tcrri- tv)rial wilderness lords, was the most general and tlii; most profnable although the least honorihc part of their grant, and one which as a Bourgeois aeeoniplishment would have heeii viewed with little I'avour or respect by the Seigniors of Franc(! ; it would be the height of credulity to believe that cither Louis the ITmIi or his successor viewed the i'cndal system so favourably ab to desire its perpetuation in Canada alone of all the French Colonies; a notion which no doubl sprung from the use of the terms u litre (/c/irfcl sii'j;ni'uni which were merely aniplificative of the |)roperty granted and did not lix the temu'c, and is one of the many absurd examples ofli'red to notice of the appliance of old worlil technical legal term5 to new and uninhabited or at best newl^ settled countries or colonies. It has been already nMtiarked that the grantees was under no compidsory obligation to sub-grant his land ; but its ex- tent, in almost every case, was beyond his means to improve, and this com|)elUHl him, iiia/i!,'rv cm, to secure the assistanc; of others for carrying out the imi)rovemenl necessary lor lii^ own advantage and for preventing ilie revocation of his grant for a breach of the lloyal condition of settlement. As previous- ly mentioned, he was uncontrolled in the mod(; of alienatini^ his estate, but circumstances compelled him to select one as the most eflectual, namely that by proprietory sub-grants to parties capable and willing in their own interest to pm their grants under imj)rovement. (Jarneau observes: " the " Monarch made to his Civil and Military Ollicers and '' to others of his subjects whom he desired to reward or " favour, grants of lands in the Colony extending from two " to ten leagues square. These great land holders unable, " from tlujir limited means or personal unfitness, tlierii- " selves to improve their grants were under the nccessit\ " as it were to rlistribute their estate among veteran s')ldier> " and other colonists for a perpetual rent charge called on o I /cs Sauvnges, to llirsi' tcrri- aud lli(! most (Mr i^'raiit, imd iild liiivo hccii Seigniors of ) bt'licvf,' lliiit od the rciuiiil ion in Canada lii(di no iloul)l f cl s('i'^nrini( pcrty granted uumy absnrd ) of old world rat best new I^ t(M^ was under id ; but its ex- ms to improve, llie assistanec cessary lor h\i^ on of liis gram . As prevlnii:*- • of alienatiiii^ 1 to spleet oni; ory r-iidi-grants interest to pm )serves : " the Ollieers and 1 to reward or ding from two ohiers unal)Ie, fitness, them- the neeessitv eteran soldiers (diarge (tailed reus ft rnitesy Charh'voix, 5 vol, p, IGO, says : " ("anad; " was a erreat for(!st when I-'reneinnen lirsl sellh'd tl lere T i(! grantees oi seigniories were unable to improve their (rants ; tliey eonsi.sted of Military Ollieers, (Jenlleme n. " Rcdigjous liodi(\s none of whom possessed sullieieiit fund» " to maintain and support the labourers and workmen re- " quired for the purpose. They wer<; thendore eom|)(dled " to (dieet settlements by inhabitants who could advance " their own hiiiour aiid money upon sub-grants bfd'ore any ro- " turn could be derived from their outlay. Their contracts " with their Scdgniors were in c()nse(|uence at a very mode- " rate rent charge, modiiinv rvdcvmni'^ and this with hxh el " ventcs. fine on mutations, w hidi added little to the means " of the Seiirnior, his riyht of toll for mi (C (I (( illing and grinding, and the |)rolits of his own cultivation of his own properly rendered a sedgniory of two h^agues in extent in front by almost unlimited depth, a source of little really productive " reveniu! in so thinly po|)ulated a country and where so " little internal commerce existed." These remarks were written by the very int(dligent and instructive Jesuit in 1721. He subsecpiently proceeds lodescribe his visit to the Clraml Voi/rr (/('. In Nuiivcl/r France^ the IJaron of Hecaiicourt and Seignior of Portneuf, at I'ortneuf, and the details wlii( li ho has hdf are not only amusing but exceedingly instructive in this matter, as bein>' (diaracteristic of the state of things at that period existing i n the C oioin ex uno disrc oinnca. '• The Haron's mode of life in this desert, because there is " no other near s(>ttler, naturally recalls to mind that of the " patriar(dis who did not disdain to cultivate their property '' with their si-rvants, and tin; Haron lives almost as fru- "■ gaily as they did. The profits which he derives from the " trade with the Indians, his neighbours, in the purchase of " their furs at iirst hand from tliemstdves, is fully c(pial to all " the rcdcfdnces, rents, which he might nu-eive from tenants " to whom he might concede his lands. Hereafter he may '' have tenants and will improve his position when all hia^ 'ill .iiii 26 e *' cstale shall be cleared. " 'I'his visit as Rtaled nbovo \vn!< made in 1721, ten years after llie piiljlieation ol" ilie //rr/7.v of Marly wliieli have formed a very pmminent ground of discussion in the invest i^^'at ion before us and which will be referred lo at lenrforenee only intlu^ special exceptional cas(! j)rovided against by the I'lrst Arret of 1711, the refusal of a Seignior to grant a land to an intending and applying tenant, and which, singular to say, has in ni instance ever been rendered operative since the promu 'gallon of that Arret. The concession so made was ncc(^ss...ily a synallag- malical eontraet Ix'lwcen the grantor and grantee, or to use the conuuon terms, Sc" ^ ' rand Censitairr, Lord and tenant, and conveyed an estate in as full j)roperty and right to the latter and as incommutable in its nature as the lioyal grant to the Seignior himself ; its conditions were expressed in the terms of tlie concession and in the legal incidents necessarily (lowing from them; to the extent of these condi- tions and iiK'idimts it was of feudal nature " tenor cstqiii Ir'^iin (lid fiiiido^'''' " ainsi la vrrital)le loi censucHc c'cst facte constitntif de la cr/t.sii'(\ son esprit est la volonte drs conlrariants^'''' lumcc Mr. Solicitor (ieneral Smith's feudal (icticnof leiuirt; in the cone(>ssion, as between Seignior and tenant, is to be found in the grant alone, and not in the provisions (»f the lav/ eiihcr customary or uumicipal ; this principle appears to have been fully adopted in the Seigniorial Act of 1854 itself, I I 29 »■ which provides in the Glh Section of the 5th Clause, tfiaf " in (irtfrfniniNlory right existed in 'achumh'r his title. Championniere, p. IK), thus explains the matv-r anoluie properly constituted " tiie dominium plenum \\\e jns iutegrnm, and he who united " all it-i ' '.Muents in Ins own posse.s'--ion enjoyed jurL' pro- '■'• imelario in integritatc. By the efleoi. of iIk^ feudal " contract this properly was divided, the feudatory or " tenant received llie useful (lemesne v. liosc profits consisted " in the produce of the soil, the grantor reserved the iui- " mediat(> demesne whose profits eonsisled in the obligation.-"! " and dues of the feudatory." At page 589, lie proceeds: " These considerations fix the true moaning of the woxd^fef. -I: • i,l ■'it I'M i.-l '\ iJ 30 t " Seignior of /r/", ftMidal law; in Customs all posterior to " liu! extinction ol'the statu ol\society whicU liail t'stahlishrd "it, as its chief ohject no personal superiority re- " niained, the Seignior could no longer command his vassal, " the latter was independent of thi; former. The seigniorial " association only subsisted in one of its means of existence, " namely infeudation. The grant was not set aside with " the cessation of the chief object of that association, the " grant survivfMl in its nature though not in its original ef- " fccts. ltn()long(!r j)rodu(!e(l actually and usefully, fealty, " military service nor the right to administer justice : but " it always consist(>d in a division of the property, tmd a " partition of its chMiients between llw. Seignior and tlin " vassal. Thi; foruHjr was always proj)rietor af the iiii- " UK (liate, tli(> latter of the useful demesne ; their respective " relations extended no iurther. All that ;hc vassal iicid by " his contract constituted the useful demesne." I'enrion de Panscy, 1 vol. pp. 2*/0 to 2, admits that " property or .vr/- gni'iiric privir^'' as h(> designates it, " was of two kinds, the '' luimediate and the useful, oiiginating in the Roman law, " and pr(u;eeding from the annual rc'turn due by the one to '' tlu! other under a contr'ict, recoverable by the direct or llic " ushiful action as tin; ciicmustances of the case required : " these actions becauK! synonimous with and were re|)laeed " by the terms iu)fncdiatc and usefid demesne." Prud- liomme, Droilsvn rotttrt', p. 95, says: " the censual contract " is that wherebv the nronrietor of a iicf disseises himself. prop u and gives up the whole or j)art of his property, and full properly in " convey^ it by grant to the tenant in " consi'.leratioii of a perpetual reaervcid rent charge on the " realty in recognition of its imnicdiate connection wiih th' lief, Sic." I'll: N(Mthcr the it.nied'iie nor the sub grant ptlrpor ed li' scitlle mere feuii- lations contained in them ; the cxislcnec of the charge as matter of fact payabh; by all seigniorial tenants, individual and collrctive, is undisputed and un(piestioned as having existed from early C'anadian times and growing with tlu; growth of the Colony ; the President of the Court has however so entirely exhausted this part of the biubjec-f thai a repetition woidd be tedious and unprolitable ; sutllce it to notice brielly some of its principal features. By the thistom of Paris, the owner of a fief was only permitted to alienate two thirds of it without line to the immediate Seignior, but in Canada where the grants pro- i I 32 i cv(h]c(\ from llio Kinjr, the dominant Soi^nior and I>(', " sc Jntier " (/r .sv;// //r/' is to alienati^ a portion of the y/V/' without divi- *' sion of the fe;ilty ; l)ut this alienation could not by the " law of the Custom exceed two thirds ; th(> excess even " without division of fealty, becomes the [)roperly of the " dominant Lord. Hut this customary prohibition is in no " way an obstable to coni^essions tendiiii;^ to settlement he- " cause these are rather an amelioration than an alienation " of the //('/';" and ilenrion de I'ansey, j), 31)0, establishesi that principle as law. The technical words of the Custom nc jovnr de son ficf et fain; son prnjit have been uniformly explained by French jurists of admitted authority, as signifyini; the power to alie- inat(! the limited (juantitv of the estate by sale or any other mode of alienation agreeable to th(^ Seii^nior at such price and terms as mii^lit b(! aufreed upon, I, Henrion, pp. 37.5, 380-3, lierve, p. 361-1, (iuyot, j). 115, 1 Kl, M'2-l, Iko- deau, p. 534-1, Ferriere, Grand Com., j). 812, 818, ctim mill- tis aliis — The customary restriction, as applicable to the ex- lent of tne sab-ij^rants beinj^ inoperative to that portion of the Seiifniory in France, namely the alicnal)Ie two thirds, did the custom, if indeed appli(;able at all, estal)lish a qiiotilt' or fixity of rentcharge for the restricted })ortion or did it in fact establish such quolile at all } It has been shewn that the rent charge was in fact a matter of bargain and agreement, and the custom giving latitude of alienation. 33 i ' alionalion, within tli(^ iiniih'd oxlenl of the !ilicn!il)l(' jjorlion of tlio sci- ^Miiory rr(iuin>s only llic rctcntittn (y all I'l.'iidists is that Dominiis " vonrcdil (id mndnm qiirm luiliy Ifervc, 5 vol. p. 1)1, sect. 9, discussi's ihc question whether the rvns is a rent chari^c pro- portioned to the trne produce; of the sul)jecl«aT//5t', or a mere honorific riijht rccoiifnilive only of sci,i,Miiorial connection. Jle estahlishcs it " to have always represented the value ••' of th^ |)roperty, and to be a nncnue pro|)orti()ncd to ihf "• produce of the land," and adds, ''the object of \\ni jcu df '■'■ I'll f is to enable tlu! St'ii,'nior to ol)fain the greatest [)ossil)|c " benefit from his properly, to profit by it as laid down in ihc " 51 article of the ('ustom, and thereby to advantage himself " in the most ordinary and usual way, which is shown by " the authors to be i)y the hail a cms or ccnsual contract ; '' how could that advantage be reachcil, il" the ecus were " merely honorific r" he adds " that the old money rates hatl " become exceedingly small by comparison with iIk; then " value of money, but that the old rates in grain and kind '' were still high and marked a very striking connection " v,ilh till! then exact feturn and jjroduce of land ; that the " ,s'r^/ ami denier of old times were gold and silver coins, and " iJtal (ill Ihc services and ohli'^alions ciiarged upon ii conccs- '' sion^ i ml udinii; the ecus ^ formed (I eensual nnitij of consider a- "• lion e.rpl(iinin, 1 vol. p. '21 1, mentions, in corroboration of his opinion of the cens being representative of value, that " in the sales of " Crown lands in Fraiu.e in the lieign of liouis the 1 ltli,ll)t ''rent reserved was fixed at 1-20 or 5 per cent on the an- *' nual revenue of the land sold." This was the usual in- tert.'st rate at which sales of land were math; a nfus/ifnt, shewing the common known value of the return not only in France but in French Canada also, and at which, from ihi force of usage, they continued to be made among the Frenc^h inhabitants of tlu^ Colony, long after the interest rate had been raised to 6 per cent by the Legislature. The quntitf'. was not stipulated in the original grants themselvesof lands in the Colony, except in four exceptional cases exi)laincd by the President of the Court, and which form no precedent, as well from their litnited number as on account oi the peculiar circumstances connected with tlinc of thcin in the grants themselves. Perfect freedom in lliis respect was established by judicial deciaions from very early times, the Superior Council, by its Decree of enregislraiior of the Cu)npagnie du Canada^ sustained the application of the Company's agent Du liarroys, "that the grants proceedini( from tlie Company should be made for such rent charge, cetis ct rentes^ as the Intenn«! jii A ^ ^ ''^\ t^^ '^^ C/j 36? accomplished ; that the British Chief Justice and Attornev General, as early as 17G9, declare it not to be uniform, that Cugnet, a Canadian lawyer, publishes the fact in 1775, in his Treatise of the laws of the Country, pp. 44, 45, in which he asserts, " that no Royal Edict exists fixing the " rate imposable by the Seignior ; that lands are not con- " ceded at equal rates ; that they are higher in the District " of Montreal than in that of Quebec, because the lands are " more favourable in the former than in the latter;" that ii has varied at dilferent times and in different seigniories ; that there is a marked want of uniformity in that respect where cbieily of course it shoulc' not be expected particu- larly to exist, in the Crown seigniories themselves, and that the judicial decisions of the British Canadian Courts of Justice have uniformly sustained the contract rate what- ever that might have been. From all this it is manifest that the rent charge has never been fixed and has not been uniform, and that the want of uniformity has been sustained by an unbroken series ot decisions reaching to present times, maintaining the stipu- lated rates agreed upon and settled by the title or deed of concession, bail a ce/is, and by them concluding the rate in the absence of contract. 1 m I- 1 : ■ 'iy ^f ■ 1 :>• ■ '!..:V.' An erroneous impression prevailed for a long time after the conquest and extended down to a recent period, that a quolite or rate fixed by provincial custom had been established as a rule of law which might be enforced between Ccnsilairc tenant and Seignior ; a more full examination into the subject, assisted very materially by the mass of documents published by the Govern- ment at various times during the late parliamentary dis- cussions and before unknown, has shown the error broadly and distinctly, but it existed as early as 1769. when the then Attorney General Maseres stated in his unadopted report to the Executive Council, that " wild lands are conceded at higher rates " than allowed under m 37 e *' the French Government without regard to a custom or " rule in force at the time of the conquest that restrained "' them in this particular^'' but he admits the absence of a uniform rule, and says " that the sub-grants were or- ilinarily at one sol per square acre, but two sols were charged where the lands were richer, with one half minot of wheat additional for each sub-grant." Maseres was incorrect in his statement of the fixity of the rate, but his belief in the establishment of a customary rate continued to pre\ail, and impressed myself and others of my colleagues upon this inquiry as well as others whose opinions were entitled to respect ; it was however clearly an error and has been found to be no longer tenable. The next point of interest submitted for our determination is the supposed compulsion upon the Seignior to concedes his lands, and this is based almost exclusively upon the u\rret of 1711, technically and generally known as the first Arrdt de Marly^ because no such stipulation exists in any of the grants themselves nor in any law or regulation previous to the promulgation of that Arrdt. It might sulfice to observe that defrichementy improvement, not concession, subgrant, was the condition of the original grant, the neglect of which entailed its revocation ; as this Arret has been adverted to, its terms and provisions must now be briefly examined to ascertain the support which they are supposed to give to this compulsory obligation upon the Seignior. It may be here observed that publication of the ArrSt was not generally or fully made in the province for twenty years after its date, and indeed only by the Arrdt of 1732 which repeated its terms and provisions. The ArrSt sets out distinct complaints, and provides distinct remedies. The first complaint stated in the preamble to the Arrdt, is that " among the Royal grants of lands en sei- i^neurie to His subjects in New France, there are some which are not entirely settled,'''' this is passed over without ob- •^ervation and without remedy, and evidently not considered I] } 'r. ■ mu li il 11 1 ' ; I 1 ._' iif;' i ^lii Uii I!). 1! it H 33 i to be an evil, because no remedy is provided. The second is " that other giants have no inhabitants on them to bring them under cultivation, and that the Seigniors have not com- menced clearances on them for their own residence thereon :'' tor this evil, which is assumed to be an absolute breach ot the condition of the grant to improve the estate granted, a remedy is expressly provided, commanding " those " Seigniors, grantees, w^ithin one year from the publication " of the Arrety to bring their grants under cultivation and " place inhabitants thereon, under the penalty of revocation " of the grant and re-union of the granted estate to the King's " demesne by the Governor and Intendant, upon the com- " plaint to that effect of the Attorney General, Prqcurrur du " /io/." The compulsory concession is evidently not to be found in the Arret so far. The third evil is " that some Seignievrs refuse, under various pretexts, to concede lands to inhabitants applying for them, ivilh the vt '/; to sell them imposing at the same time upon the purchased lands the same dues and duties, droits de rcdevances, as the settled inhabitants are charged with, which His Majesty declares " to be entirely contrary to His intentions and to the terms of His grants, which permit concessions of lands subject to dues and duties a litre de redevatices merely," and for this evii a special remedy is also provided, " His Majesty ordaining that all Seigniors do concede gu''ils ayent d conceder in their seigniories the lands demanded of them subject to dues and duties, Avithout exacting any sum of money as a price for such concessions, otherwise and on the Seignior's con- travention of His commands in that respect, that the demanded lands on the formal summons of the applicant shall be escheated to the Crown, and concession thereof made by the Governor and Intendant for the same dues and duties, droits de redevances, as those imposed upon the other concessions, and which are ordered to be paid to the King's Receiver." It is too much to seek in this third evil, and its remedy, for a general compulsion on the Seignior to concede his lands, whereas its object was tlie prevention oi •even lion oi 3di land speculation, and of obslnictions by Seigniors to the settlement of the Country by sub-grants at a rem charge only, sale impeding the habitants^ whose scanty monied means preventing purchase, were essentially and absolutely necessary for their first settlement upon their concessions. The King himself explains his meaning on the subject oi' the Arrdt de Marly in his Instructions to the Governor and Intendant of 2Gth June, 1717, in which he observes "that " their attention to the enforcement of the Arret of Gth July, " 1711 (the Arrdt de Marhj)^ which provides for the escheat " to the Crown of unimproved seigniories, and to the obliga- " tion upon Seigniors to concede lands in their scigneu- " rics which they desire to part with, is very necessary for " the settlement and extension of the Colony ; they must " prevent Seigniors from receiving money for conces- " sions of wild lands terres en bois debout, as it is not just " tliat they should sell the property on which they have " incurred no expense, and which was given to them only " to have it settled." To discover a compulsory obligation to concede in the plain and evident words of the Arrdt above transcribed argues a manifest mis-apprehension of the plain object and intention of its provisions, and a mis-application of the plain language of the enactment itself, whilst it is at the same time at variance with every just principle of the legal construction of such documents. It is sufficient to add that no authoritative adjudged case can be discovered in which the Arrdt has been enforced in this particular, evidently in- dicating the supposed intention of its promulgators to have it considered what it became a mere brutum fulmen. The subsequent Arret of 1732, which re-enacted the pro- hibition to sell of the Arrdt of 1711, was as ineffective for compulsion as the former, whilst the Royal Declaration of 1743, which provides a code of practice to be observed in matters of escheat, makes no special enactment in respect of the comptftsory concession of lands. 40 i i'l:- rv 111'! • It may here be observed lliat in sovc'ral of llio Royal grants, chie/Iy inllios(! sabs(!quent to 1732, a eondition will In; found that the coneessions shall be " au.c ccns ti rentes accuiU/iinecs par arpent de terre dc froat^'' which was evidently inserted l)y the advisers of that last Arr6t^ solely for the purpose of reaching tlie dilTiculty above adverted to, of the sale of wild lands by Seigniors, and of giving contractual ellect to the prohibitions and penalty of the Arrets. This condition however had not the most distant connection with com- pulsory concessions by the Seignior when he could improve his grant without resorting to sub-grants. To the extent, therefore, of a legislative and authorative settlement of the consideration of a sub-grant, namely for droih de redevanccs^ dues and duties alone, when a sub-grant was made by the Seignior, and the prohibition to demand a price for the concession in addition to those recognized droits, and in the further legislative and authorized enforce ment of its observation for the purposes of cultivation, not speculation or land jobbing, the Arr(?t of 1711 was un- doubtedly compulsory, but to that extent alone ; it did not, nor by any mode of discovery or explanation that can be legally applied to it could it be intended to interfere with or compel Seigniors to part with their property : as under tiie Custom of Paris wdien alienation was made en, Jief, which the Seignior was however not compelled to do, some feudal recognition was required to attach to it, so in Canada, when the Seignior was willing to sub-grant, it was with the dis- tinct understanding that it should be a Litre de redevance. and without exacting in addition a price in money ; thi5 clearly was the sole object of the Royal Legislation of tlie Arrets oi 1711 and 1732. To obviate long argumentative responses in the judgment, no objection was recojded by me to the 7th, 8th, 9th and lOth answers touching this point of compulsion, with its farther references, because, in fact, the matter was of no im- portance or interest in a practical point of view for the solu- 41 i lion of the logal points involved, and might have boon omitted altogether in the referenee ; and moreover, heeause the language of the answers discussed and. agreisd U})on by the Judges at their final adoption, in fact conveyed undeniable facts and references which oflered grounds for a partial acquiescence in them ; but to avoid mis-concep- tion, reservation was made to explain my assent as published with this Judgment, and to state mv distinct denial of the compulsion to sub-grant either by the terms of the Arr^t or otherwise. The first Arr^t of 1711 and that of 1732 had referenee to Seigniors and their grants; but the second Arr^t of 1711, which was registered in the Superior Council of the Colony at the same time with the first, above refern^d to, provided for the escheat in favour of the Seignior, of con- ceded but unoccupied sub-grants, a summary process for its enforcement before the Intcndant alone was tliereby pro- vided ; no discussion has arisen with reference to this se- cond Arr^t, which has been frequently enforced, as well under the French as under the British Dominion. It is obviously important to refer for explanation on this head of escheat, reunion, to the course pursued in France in the matter. From early times unoccupied lands were viewed with disfavour sociaUter et ullUtcr, and Freminville, 3 vol., pp. 344, 5, says : "that they might have been taken " possession of by the first occupant ; this occupation be- " came in time the right of the Seignior justicier, which " by the Ordinance of Charles 9th, of 1566, was intro- " duced into all Letters Patent granting to Seigniors power " to renew their Terriers, and was the more legal because " it tended to the public good, for the useful cultivation " of unoccupied lands in the seigniory, and this appears by " the ilrre^ of 13th Oct., 1693." 1 Henrion de Pansy, p . " 237, repeats the words of Dumonlin : " Vacant and unoc- " cupied lands belong to the feodal seigniors, because they ■ : .1 I"' i ■ ' I ' • 42 «■ " wore in llio origin of jh'fs invt'>itod witii the enliro tcrrilor) " of tlio /(V/, and those lands remained uncultivaled only Uv " cause it was not thought proper to infeodate or aceonse " theui ; in as niueh, then^fore, as the Seignior did not alie- " nate tht>m he remained proj)rietor of them, this is the le- " gal presumption; o.\\ terre ICHanls within the limits of a " seigniory are presumed to hold their lands under concession " from the Seignior, in virtue of successive alienations made " by him as new acquirers offered. The imcultivated lands " must therefore be considered as portions which the Sei- "gniorof the //r/" has not accenscd, because he has either " been unwilling to do so or has met with no applicants for " them." DePansy further observes that " Dumoulin's opinion is sustained by legal princi[)le and the nature of things, and has never been controverted." r i--.,.. In France, the King had no power of appropriation and escheat, reunion, to his demesne of any abandoned and unoc- cupied lands not within it ; that right over seigniorial lands resided in the Seignior Haut-Ju slider of the Seigniory. Furgole, Treatise of Alev, p. 6, observes : " However •' exalted the Royal influence may be within the State, " Kings have not presumed to stretch their power to the " disposal of the property of their subjects without their " participation, or without some object or motive of public " good as a ground for their proceeding." In Canada, the grants proceeded directly from the King himself, and con- tained his own stipulations and conditions agreed upon and accepted by the grantee, and specially the paramount obli- gation of settlement ; a breach of that obligation was a breach of the subsisting contract between the grantor and grantee, and brought the unoccupied land clearly within the law of the escheat and reunion, of the granted estate to His Royal Demesne, by his mere right as Seignior dominant, immediate Seignior ; the first Arr^t of Marly in eliect did no more than declare the existing law, whilst it provided a speedy means for its enforcement, in a summary manner, by an extraordinary special tribunal, composed of the Cover 1 I , 1 IH hi pi ■ ■ .■&!.gi.}j::vii fev fif u 43 t nor and Intcndiint, instead of by the tedious course of legal proceedings before t^e ordinary tribunals of tlie Province, even if these had be(>n competent to adjudge between the King and his grantee. Both tlio Arrets of Marly in this respc-ct nffirm the ])rin- ciple of the common law, and olil^r novelli«'s only in the mode of proceeding for its enforcement, the first providing a species of Land Board for determining upon the proj)riety of the escheat and the subsequent regrant, and the second pro- viding an easy mode of })r()of, and an expeditious j)roceed- ing to adjudication, without the; necessity for the employ- ment of counsel, or tlie incurring of expense by the Seignior whose sub-grant had been abandoned and was unoccupied ; the chief object of the first Arret of Marly was to relieve the King himself from the necessity of personal interference with his grants, whilst that of the second was to procure prompt action for the reimion to the seigniorial domaine of vacant land. This joint tribunal, first established by the first Arret of Marly, may be, with truth and correctness, denominated an administrative Land Board, whose attributes and pow^ers it becomes necessary to appreciate and understand, inasmuch as the conclusions to be therefrom deduced bear strongly upon the answers to be given to several of the questions propounded. As previously stated, those attributes and powers had connection only with the grant and regrant of lands, and did not extend farther. The Board not only cont! i'ul the grant of ungranted or unoccupied land, but directc 1 the escheat or re-union of granted land and its regrant as unoccupied land ; the escheat was simply formal, the regrant being essential as part of the Royal intention of settlement, for which alone the power to escheat was given as subsidiary : these attributive powers were uncontrolled by anyl legal rules, and solely influenced by the discretion of the Board, by their consideration of the King's supposed or express intention, and by their appreciation of the best .! hi I., ill i . ■ \ " ^! '■' i\ 1 ' ■■! ■ ' '': i l\r . ■ j - :( ( ;.■> i 1 ! ■; • ' t ' I i' * 1 ; t' . . i 1 lit : 1. ■ 1 ! ? ?i ': t i, •-, u 'k'. 44 1 and most ofToctivo mode of advancin*:^ llio intorrsts of the 'Colony. Tlio objrct.s within the scopo of tlicse atlributoH imd powers (;onf(!rred ujjon the (Governor and Intendant. joiiiilv, as al)()V(; Tucnlioncd, {H)uld not with any propriety ho in- trusted to judicial authority, because the subject was oi' administration and police, without any hiw whatever apj)li- cable to its exigency, or by which a Court of justici; could be directed or guided. Monsieur Petit pertinently reuiiukv upon this subject, " that the laws have not explained whut " th(! Arrets call thi; settlement, which is required to be os " tablished for the avoidance of the reunion of lands to tin- *' domaine. This would be diilicult to determine by a ijc- " ncral law, because circumstances cannot always be aliki- " at all times, and all lands are not susceptible of the sinin' " culture, &c. Hence the necessity for the interposiliou oi *' the Executive Government, not only to declare upon the " propriety of re-uniting tlio grant but, also upon the re-eon " cession of the property re-united, or th(^ arbitrary grant of Uk *' Seignior's land applied for and refused." " At first all *' grants were made by the Intendaut, as the representative ot " the principal agent of the great Companies. This authority *' was afterward intrusted to the Governor and Intendant " jointly, because the selection of the land to be granted, and " of the person of the grantee, might and did interest the pre- ^' servation of the Colony under the King's dominion, and " for which the Governor was responsible " : " This un- " doubtedly was the reason for the attribution extended by " Letters Patent, within a few years after the re-union of the " Colonies to the Crown domaine, to these two oiiicers in " common and to none other than themselves, conjointly and *' not to either of them, to make grants of lands." With re- ference to the administration in relation to French ami English concessions in America, Petit observes " that the *' legislation of both nations was the same in matter of con- ^' cessions. The officer accountable for the preservation of ^' the Colony confided to his charge could not be a stranger " to it: the choice of grantees is evidently too important w fej If; !:t 45 * "■ inatlcr to hv iriadc indrpondcntly of llio (jovorrior. TIm- " police o\'er llic nniuion to tlu; domain of lands ^nanti'd l>) " abusive concessions is the sanie,iind lor the same reasons • " th(^ conditions of the Crown grants are potestative; in the " grantees, who vnn only blam(; themselves if they ncgleel •' or refiis(; to fidlil them. 'I'he threatened penalty of for- " feitnre of the grant, like the obligation imposed upon tlu; " West Indian grantees to hav(! and maintain a certain " number of black anil white persons on their estates, des- " troyed the laws reipiiring the performance of the con- '•(lition. If it could be held just and nvc'ossary in regard '■ of persons in good circumstances, how nuuih less " should it apply to grantees who, with small means and '• little or no credit, or who depended upon the feeble ex- " pectations derived from plantations upon which they were "• compelled to labour with their own hands to preserve theui " from forfeiture. It is impossible to expect any good result '• from such conditions of concessions, tiic first of which '* should have been to limit the extent of the lands granted, " according to the nature of the plantations or culture ol '' which they were susceptible ; the omission of this con- " dition has prevejited the increase of the j)opulation in the " Colony. Ue-miion is a punishment, it is true, but if the " settlement made by the first settler has exhasted his " means, the Colony loses an inhabitant whom she would " retain if his outlay in labour and advances were accounted " to him bv his successor, who has the advantage of enter- " ing upon a cleared or ])artially opened land, the whole " profit from which would soon be within his own grasp." The joint nature of the attributes intrusted by the Arrets of nil and 1732 to the Military Governor and Judicial In- tL'udant, not alone for the reunion or escheat of the unimprov- ed grant, but for its subsequ,ent re-grant in the same manner as any other ungranted land, the fact of the preponderance distinctly given to the Governor over the Intendant by virtue of the Royal Declaration of 1743, and to which Chief-Justice H;iy adverts in 1767 in the following terms : " the power of t;.' ' 1 I I ; Jl: ' i I I f I 1 • I ! I HI! I i. I; J, 4r, • ' till! Govfrnor wiis iibsolnlo in his (Icparlnn'iil and lii» rotiM " oven control tin: Intcndant in oivil matters ; in luattiTs ol *' gn'at importance, particularly in granting lands, it was nf- '' cessary that both should join" these, together with the fuusonsstat(Hl above, demonstrate these attribut(!s therefore to bo merely of state j)(>licy, intrusted to this peculiar adininisini- live Land Hoard, and bearing about them no judicial attri- bute or orgiuii/ation whatever. One instance only has been found of the inforcement of the Arrrts lA' 1711 and 17;]J, namely the Arret de reunion of 10 May 1711, Edils ct Or- donnances^ 1 vol. p. 555, but this was a special ca-^e, j)rn- f'ceded upon l)y the express and special order and direction of the King himself, for non settlement of the grants aCtci a delay of twenty years and without any attempt at occnpii- tion or improvement, and yet, notwithstanding that negiecl. the Governor and Intcndant promise new grants of the es- cheated estates to the same ejected grantees, if they would unilertake to perform some slight settlement duly witiiin SI year ; thereby clearly shewing that the attributes of this special IJoard were administrative not judicial. The peculiar provisions of these Arr4ls^ examined at llii« distunc(? of lime and without having received at any linic any operative eftect, present them to our notice as pecu- liarly inapplicable to any country in which settlement i? progressing ; they were in fact eminently favorable to the Seignior, inasmuch as the prohibition to sell, applying exclu- sively to wild uncleared lands, terres en bois dchoi/t, did not reach cleared lands at all, and were strongly recommended by the Board not to affect the natural pastures, prairies ; their inapplicability may also be acknowledged from an ap- preciation of the nature of the country, and llie habits and character of its inhabitants, and from the fact, thai the re- quirement to settle and improve the grant within the linii! of one year, according to the Arr^l of 1711, extended to two years by the Arret of 1732, was neither more nor less in- tended to be made operalive, than as a covert declaration ol •confiscation under ihe guise of a liberality, which could noL II ■i ''iti iiw. ^-i^ 47 « within llic know Icd^^e of lli«' liC^'islaforand his (colonial ad- visiTH by any poMsihility lit; curried into clU'ct. Those observations ncccHsariiy h-ad lo an incpiiry into the nature and ehara(;ter ol' the Arri-ls themselves, keeping in tnind that the second ArriH of 17 1 1 does not fall within the di*- eiission. TIk! itKjiiiry in the lirst instance may be sought for in ihe tiorrespondenee between the llonu; authorities in Francis and the Colonial authorities in Canada in ndation to them. The joint annual report of the (jiovernor and lnt-, f 49* " Under the French Government, the spirit of the govern- ment was military, and conquest was the chief object ; very large detachments were sent up every year to the Ohio, and •other interior parts of the continent of North America. This drew them from their land, prevented their marriages, and great numbers of them perished in those different ser- vices they were sent upon. Since the conquest, they have enjoyed peace and tranquillity ; they have had more time and leisure to cultivate their land, and have had more time to extend their settlements backwards ; the natural con- sequence of which is, that wheat is grown in great abun- dance, &c. It has been observed by an esteemed French writer; " that the French government seeing that private enterprize did not succeed in peopling New France gave to its colonization a character almost entirely military, not so mucli as a means of rapid settlement as a defensive precaution for the protection of the colony. Beausejour, Niagara, Frontenac, Detroit, Fort Duquesne were merely military Colonies. The fur trade and constant wars had distasted the Canadians with peaceable pursuits. A hunting and warlike people, they despised agriculture, arts and com- merce : reputation and honor could only be gained in hardy and dangerous enterprizes or in battle. The Canadian, ins- pired by his Government too poor to protect him by regular troops, seized his gun, became a soldier and acquired that love for war which so greatly impeded the developement and progress of the country." And Charlevoix, 5 vol. p. 127, observes whilst remarking upon the faults of the system adopted in Canada : " Premierement, on a ete un temps " infini sans se fixer; on defrichissait un terrain sans I'avoir " auparavant bien examine ; on I'ensemen^ait, on y elevait " des batiments, puis sans trop savoir pourquoi on I'aban- " donnait et on allait se placer ailleurs." In such a state of things it was not wonderful, that the second Arr^t of Marly was so frequently enforced in favour of the Seignior, i; ,;; I'i It, ! I I 1 ' i' 1^1^*- 50 i and tlial in fact frequent reunions, escheats, had been obtained even without it, from the Intcndant in his judicial ca])aoity, for years previous to its publication in the colony, for breacln by the Cetisilairc of the condition of settlement stipulated in the sub-grant or concession. It is in the face of such a system and of such circum- stances, that the Arrets of 1711 and 1732 are asserted to be municipal laws intended for enforcement and execution as applying to Seigniors ; a supposition at variance with the temporary character attribu'ed to them by the Colonial Olli- cials themselves, by their futility to be enforced and by their inapplicability to an improvingand progressive country, They were in fact emanations of state policy as already observed for temporary and special purposes only, and en- tirely abandoned to the Governor and Council by whom the enforcement of the escheat was altogether discretionarv : the French Minister intimating to them the Royal will : " tiiat the obligation to settle within the year, inserted in tlic grants must not be taken strictly and H. M. leaves it entirely within your discretion, S. 31. s'en rapporte a voire pi'udmcs a ccl egard. Admitting, however, that these Arrets were municipal laws within tlie powers and authority conferred upon the French Ciovernor and Intcndant, can they be legally brought within the attributes of a British Colonial Judiciary ? It is un- deniable that no power to dictate land grants to the Crown could reside in such a body, that power having been clearly deposited by the Royal Instructions in the hands of the British Governor of the colony alone, acting for and in the name of the Sovereign ; unless indeed it can be conceived, that the British Crown and its Colonial Executive were sub- jected, in the grant of lands, to the judicial supervision of the Canadian Courts of Justice, constituted for the sole purpose of deciding upon litigated difficulties arising among the inhabitants of the colony, with reference to their posses- sions and their civil rights : land granting clearly is not •Si i £ •? Hi, 51 4 williin the recognised powers of the British Canadian Judges. What remains ? The enforcement of settlement within the stipulated limited period of one or two years, upon the prose- cution of the Attorney-General as directed by the Delcaration of 1743, without whose action the judges had no power to act at all, and upon whose prosecution alone the Arret must have been carried into absolute operation, without possible com- minalion or locus pcrnitmticc aflbrded to the grantee : the discretionary power of the Governor and Intendant admi- nistrative and executive united in those olFicers, but judicial only in the Colonial Courts, could not avail at all, and the reunion would be absolute at the expiration of the period of limitation. But by what rules of law could the Courts appreciate the grounds and reasons of the Seignior's refusal, the politic or personal capacity or bona fide intention of the aj:)plicant, or his means and ability to render the con- cession available for settlement ? No such rules exist or can exist in such case : the action of the public olficer or of the Courts, if authorised to act, must necessarily therefore be discretionaiy and above as well as beyond law, and could not belong to a British Court of Justice, how- ever eminent, bound to administer law. I am not aware that the British Crown has, in any instance, profited by and appro])riated to itself land grants in any of its con- quered or ceded Colonies, under penalties established by a law of forfeiture promulgated by the foreign legislature of the colony, before its conquest or cession to the British Crown. It is difficult to conceive any combination of cir- cumstances imperial or colonial, administrative or judicial which can sustain, at this day, the existence of such provi- sions or the devolution of the powers contained in the^lrre'^^, to the existing Courts of Justice in the Colony constituted by the unambiguous language of the statutes of their creation, to administer municipal law and justice to the subjects of the Crown and not to declare or control the public or state policy of the Colony in the grant of lands. , ; .' 1^' 52 i j r (i: I' ■ I' ! i I , ;• 1 I 'pim. m V ll;^ H^r :' - •[»;> Upon this matter Monsieur Petit observes that " the 4th Art. of the Declaration of 1743 assumes as already existing and confirms the poM'er conferred upon liie Governor and Intendant, to the exclusion of all ether judges, to determinp lipon all disputes respecting the validity and execution of land grants, their position, extent and limits." If these attributes were actually included in the jurisdiction confer- red upon the Colonial Courts, it must follow that they could control the position, extent and limit of a land gram in defiance of the Crown, a supposition as absurd, as the alleged erection of the Governor and Intendant into a Court ol Justice, because of the use of such common technical terms as " Ordonnance rendu " " connaitredes contestations " in the Arrdt of 1711 and Declaration of 1743 conveying the Royal intentions upon the subject, and the investiture of those state officers with an extraordinary judicial jurisdic- tion as a Cour Royale, because certain regulations wen- imposed by that Declaration upon their observance in the performance of their duty of granting and regranting lands in the Colony ; with such reasoning the present Crown land Department and its regulations for granting lands would necessarily become a Court also, and its reports, judgments OrdonnanceSj of similar judicial eifect. In a word, the exceptional authority of this joint delega- tion which could not be and never was administered by the existing French Courts in the Colony, which had no con- currence with those Courts and could not be extended be- yond the subject matter and parties for which that delega- tion was specially established, or the acts as such and only such as were necessary to carry out its powers, is suppos- ed to have been devolved upon the British Colonial Courts, because their jurisdiction was, by special statutory enact- ment, declared to embrace all the civil matters which those French Courts took cognizance of, amongst which were, however, none of those executive acts performed by the public Officers, the Governor and Intendant jointly, and in- volving discretion and judgment in determining whether 'I I 5i L 53 t the duty existed, for their application of the law of the Arrets as part of the ordinary routine of the business of Go- vernment. With the Cession therefore, the first Arret of Marly of 1711 and the Arret of 1732 in corroboration of it ceased to exist, and the Declaration of 1743 in so far as it applied to the provisions of these Arrets or to the joint power of Governor and Intendant had lapsed ; no subsequent legislation has re-established tiu!m or either of them. As early as 1767, the Attorney General Maseres wa« under the impression " that a formal enactment was neces- sary to restore the laws in force under the French ad- ministration relating to the tenure and alienation of lands and to the forfeiture, confiscation, re-annexation or re- uniting to the domaine of land by escheat or other devo- lution of same whatsoever :" this was in the interval bet- ween 1764, the date of the Ordinance of the Governor and Council which had assumed to abolish all the French laws and to substitute the entire body of the laws of En- gland civil and criminal in their place, and the year 1774 when the 14 George III was passed, which enabled the King's Canadian subjects " to hold and enjoy their pos- sessions and property with the usages and customs relative thereto, and all other their civil rights in as large a manner as if the Proclamation of 1763, and the Ordinances for the admi- nistration of justice, including that of 1764 above cited, had not been made, and as may consist with their allegiance and subjection to the Crown and Parliament of Great Britain." The 14 Geo. Ill also provided, " that in matters of controversy relative to property and civil rights resort should be had to the laws of Canada, as the rule for the decision of the same and that all causes to be instituted in Courts of Justice to be appointed within the Province by His Majesty should, with respect to such property and rights, be deter- mined agreeably to those laws until altered by the Governor and Council." The 34 George III reconstituted the judiciary I 'I f< I'i. 'I ■i I i ^ i i* ?•■»• .i a; if- 54 i and settled their jurisdiction, extending to the King's Bench Court thereby constituted, power and jurisdiction " over all plaints, suits and demands which might have been heard in the Courts oi pre I'olc, justice roi/ulc, Intendant or Sup(>- rior Council before 1759, touching rights, remedies and actions of a civil nature and not specially providinl for by legislation since that year," but without a word of the joint action of the Governor and Intendant or their joint powers respecting land grants. The jurisdiction formed by these statutes therefore is distinct and altogether separate from the peculiar and spe- cial duties and powers imposed upon the Governor and Intendant as public administrative functions, these latter and their oOicial exercise in that respect cannot be included w'diin the jurisdiction and powers of a civil nature^ or within the denomination of either the Court of Prcvote, the Cour Royale or the Superior Council, whose attributes and juris- diction were invested in the provincial Courts constituted to decide upon the litigated rights and property of the provin- cial inhabitants among themselves. The power of reunion and regrant conferred upon the Governor and Intendant jointly, as such public administrative oflicers, could not and did not manifestly form any part of the jurisdiction of the British Colonial Courts of Justice esta- blished by the Statutes. The difl^erence between the at- tributes of the old French land Board and those of the Colonial Courts of Justice are so plain and palpable as to require no comment. It is not possible to conceive, that the administrative and discretionary powers specially and distinctly conferred upon the Board could be conferred upon the Courts of Justice by implication alone, and in op- position to the express instructions of tlie British Sovereign, by which the grant of lands was intrusted to the Governor o( the Colony and the Executive Council, whilst it is at the same time undeniable, that the powers of the Intendant in his acknowledged judicial capacity and attributes, un- 55 I der the second Arret de Mnrly, were expressly given to and do exist in the Colonial Courts. It may be asked in conclusion, wlictlier the arbitrary authority conferred upon the procurci/r du roi under the said Arr^Js and l)e(;laration of 1743, fall within the scope of the official duty of the At- torney General of Lower Canada ; that he could or would act of his own mere motion as in the French lime, and without the previous order of the Governor in Council, is not credible nor is it j)ossible ; a.id it is difficult to dis- cover the ground for the belief of the existence of such a power in any delegation of royal authority to Colonial Courts at any time by any British or Colonial legislation. Before concluding this part of the reference, it is proper briefly to notice that part of the Arret of 1732 which pro- hibits the sale of wild lands ; the preceding portion being a repetition of the Arret of 1711 has been fully discussed. The Arr^t of 1732 states as preamble to this special enact- ment, II. M's., information " that in contravention of the Arret o{ 1711 some Seigniors have retained large tracts of uncleared wood lands, as domaines, which they sell, instead of conceding them at a reserved rent, that their grantees re- riell these lands to others who again sell them and thereby in- jure the growth commerce of the colony, wherefor H. M. expressly prohibits all Seigniors and other proprietors from selling any uncleared wood lands, under the penalty of nullity of the contracts of sale and reunion of the land to the Crown domaine." This provision is evidently a regulation of state policy, and although probably few in- stances have occurred in which it has been con- travened by Seigniors, it is idle to suppose that it can be existing law to control or limit the sale of wood or unclear- ed lands by holders, when it is known that the wood of Ca- nada has been one of its chief staples and commercial com- modities for nearly a hundred years certain ; and that no judicial case under this enactment has ever occurred either since or previous to the Cession. The terms of the enactment moreover shew that it was not applicable to Seigniors alone. ■•1' j: \ fib :5 .1(11 i:-;J-."i; i 'I I' i iii! ' ■v iV, ! i-v: 5&i A moment only need be given to the Ordinance of the Governor and Council above referred to of 1764, be- cause in its effect, this Ordinance was supposed to have more or less interfered with these Arrets. This Ordi- nance passed by the Governor and his Council of the day, un- dertook to establish a new judicial system for British Ca- nada, and to substitute for the laws and usages of the Co- lony under the French regime, the entire system of the English civil and criminal law. Whether correctly or not, the Ordinance was generally understood to have abolished all the French laws and legislation, and in the generalily of its revocation, to have embraced these very Arrets of 17 1 1 and 1732 as public laws with the Declaration of 1743 as the Code of practice for their enforcement and for that of the forfeitures and penalty therein contained, at the suit of the public pro- secutor, the Attorney-General. The Ordinance is no longer in force, and its constitutionality need not be questioned ; it was, however, recognized as law for ten years and though it was distasteful at the time, its legal existence was affirmed by the Stat : 14 Geo. 3rd, which not only established by Sta- tutory enactment the Criminal law expressly introduced into the province by this very Ordinance, but did not in fact revive or restore the provisions of the Arrets oi 1711 and 1732 and the Decl : of 1743, in so far as these had reference to Imperial or public rights and attributes ; the 14 Go, 3rd, did authorize, all Canadian subjects in the province to hold and enjoy their possessions and property, together with all Customs and usages relative thereto and all other their civil rights as if they had not been questioned, and moreover did require the decision of all controversies relative to properly and civil rights to be governed by the laws and customs of Canada until altered by competent authority. The administrative attributes affecting land grants and escheats under the Arrets above referred to were, however, evidently not contemj^lated and certainly not revived by the 14 Geo. 3. The foregoing observations might suffice for a negative answer to the Questions submitted, whether the law of those 67 » All rets was of public policy and still in force at the passing of the Seigniorial Act. This matter has been elaborated more than its importance in this controversy or the Questions in con- nection with itdeserves : the subject might have been omitted altogether, inasmuch as the existence or otherwise of the Arrets or of the administrative or even judicial powers of the Gover- nor and Intendant jointly, has no practical bearing upon the settlement of the rights of the Seigniors for commutation : their antiquarian value has been recognized and submitted to us for the expression of our opinion, but notwithstanding their unimportance practically, a legal point with reference to them has been raised and asserted by the Counsel for the Seigniors, not without reason and strong authority to support the pretension, that even admitting these Arrets to have been laws of public policy at the Cession, a contrary usage for a century and an entirely new order of things in Canada have absolutely and altogether nullified them. The following authorities were cited at the Bar and are here repeated as conveying their own explanation. " Laws may be abrogated by usage contraire : — 1 Solon^ des NuUites, p. 267 : (( " Nos lois nouvelles n'ont rien de contraire a des prin- cipes aussi generalement admis, et comme autrefois, elles " sont susceptibles d'etre abrogees par un usage contraire. " Nous devons m6me dire que si ce genre d'abrogation a " ete toujours considere comme tenant a la paix des fa- " milles et a I'ordre public, il a dQ acquerir plus d'impor- " tance dans les nombreuses revolutions que nous avons eu " a subir depuis '89. Combien de lois en etfet ont ete faites " avec legerete et repoussees par I'opinion publique ! Com- " bien de lois n'ont dd qu'a des circonstances passagerea " une vie aussi courte que la cause qui les avaient pro- " duites, et nos bulletins ne sont ils pas remplis de dispo- " sitions legislatives qui ont cesse d'exister sans aucune " abrogation formelle ! :a-i 4 ^' il i 1 : '; !'< 'in ' . I ;■ I'M I Hi . :P ,1^' 58 t No. 394. La juripprndcnce a aussi oonfirme sur co point les nnciens priucipes. No. 399. (^iiid si la ioi rluit j)roliil)itive dc tout usafj[e <;ontrairc ; si par t;xi;inplo lo Irgislaleur avait drclaru (pic la Ioi (sorait observcc, nonobstant tout usage qui tciuirait a I'abmger ! Nous ne saiu-ion.s partaker cottc opiuion : .sans doutt; I'abrogation scM-ait bcauccaip plus dillicilo a s'opL'n.T ; il I'audrait bcaucoup i)lus do temps et vni |)lus graud noinbrc d'aetes eonlraires, mais du monient ([ue ces aetes seraienl multiplies qu'ils se renouvelleraient joumellement avec les eliaracteres ci-dessus, ils abrogeraient la Ioi, inalgre la de- fense qui se trouverait comprise dans ses dis])ositions. Avant d'allcr })lus loin, il est a pro})os de rappeler les j)rinei])es de la jurisprudenee IVanfj^^aises sur les ell'ets de lu desuetude et I'abrogation qui en resulte. M. Dupin fait observer que les lois nc sont pas seulement abrogees par la volonte cxpresse du legislatcur ; ellcs peuvent I'etre j)ar la desuetude, c'est-a-dire lorsque, par un long temps, on s'est accorde tL no point les executer. " Cette incxecution, quoiqu'elle ne soit qu'un fait negalii", " a eependant luic force positive dont le legislateur lui- " meme est oblige de reeonnaitre l'emi)ire. Ainsi les an- " teurs dcs lois rornaines," ajoute-t-il, " reconnaissent que " c'est avec tres graude raison qu'on a admis que les lois "' seraient valablement abrogees, non seulement par le sul- " frage expres du legislateur, mais aussi ])ar le tacite con- " sentement de tons, si I'on s'accordait generalement a les -' laisser tomber en desuetude." " Chez nous I'ordonnance de 1619 en avait aussi unc dis- '•' position cxpresse dans son article ler qui en joint I'execu- ^' tion dc toutes les ordonnanccs qui ne sont specialemcnt " revoquees ni abrogees jmr usage contraire^ regu et appi onve '' de nns predeccsseurs et de iious. — Et a cet egard il faut re- " raarquer que cette approbation elle-meme n'a besoin que I; ;,' i snr CO poini 59 i " d't^fro taclfn ct quVllo rt' suite sufTisanimont do co quo " I'iuitorUo (jui a \v. pouvoir do fairo oxocutor toutos los lois, " s'cst disp(!nst''(! do tonir la main a colt(! cxj'cufioii, ct a " laisso |)rati(iu('r ouvorloiucnt h; eontrairo." Diipiii, Ma- nuol dca Ktiidianls on Droit, Notions sur lo droit, p. 10(5, Paris, 1835. Lo cdmnoolicr d'Agucssoau a roconnu la puissanco {\\\ non-usai^o, on disant (piVm no pout rocourir en cassation pour violation d'uno hi ahrog6 par desudliide. Cochin roconnait aussi I'abrogation dos lois par dosuoludo. " Ainsi, (juand los lois sent demcuroos sans oxocution, " ct qu'un usage eontrairo a provalu, on no pent plus in- " voquor lour sagcsso ni lour puissanco ; on pout bion los " ronouvollor pour I'avenir ct arroter le cours dos contraven- " lions par uno attention oxacte a los fairo executor, Inai^< " tout 00 (|ui a ete fait auparavant subsistc et donieiuo ino- " branlaljio, (!onnno s'il etait muni du secau nioiiio do la " loi." I'7f/t', Q'Aivros do Cochin, tome 3, LII consultation, " p. 707. Suivant Dupin, ce mode d'abrogation s'appli([uc princi- palement aux loin pen reflechies, a cellos qu'on pout nppoler dc circonsianrc, lois d'exccption, etc., categoric dans la- (juelle sc place naturellcment Parrot dont il s'agit. On peut aussi consulter, sur la desuetude, Solon, Traite des Nullitos, Tome 1, chap. VI., De la Desuetude, p. 3G-i et suivantos, and also 9 Dalloz. Jurisp. Gonorale du Jloyaume, vol. Lois, Sect. 7, Chap, des Lois and jNIorlin Questions de Droit, vol. Droits et Eilets public, Sect. L" In addition to the foregoing citations from jurists, it is true that non user cannot, as a general principle of English law, be invoked against an Act of Parliament, but it is equally a principle of the Municipal law of Lower-Ca- nada and of every country in which English Common Law, does not prevail as paramount to the Civil Law, that laws : i t I ;i! In its- f 60 i may go into (IchucIikIo. In Scothmd, vvlicrc the Civil law prevails, the principle of disuse a|)plies even to Statutes themselves, which lose their lor' .; by desuetude if they have not been put into operation for sixty years. The fraruers of the Code Napoleon forcibly observe upon this point : " Lea *' Lois conservent leur effet tant (pi'ellcs ne sont point abro- " gees par d'autres loix ou qu'elles n(> sont point touibees " en desuetude. Si nous n'avons point foruiel lenient au- " torise le mode d'abro^ation par la (lesuctuch; ou le non " usage, il eut etc peut-titre dangereux de le faire. Mais " peut-on sc dissinmler I'influence et I'utilite de ce concert " indelibere, de cette puissance invisible par laquelle sans " secousseet sans commotion, les peuplcs se font justice de " mauvaises lois et qui semblent proteger la societe contre *' les surprises faites au legislateur et le legislateur contre " lui-m6me. — 2 Dwariis on Statutes, p. 673. Upon this point therefore our municipal law is at va- riance with the common law of England which has no eflet in this respect in Lower Canada. The facts stated at length above in connection with these Arrets and their provisions, appear to bring them within the principles of desuetude. The Arrets were evidently not made for any necessary or expedient remedial purpose, inasmuch as they were never inforced : no cause of com- plaint existed requiring their existence or their promul- gation, because the advisers of the Arrets admit, " that Seigniors do concede their lands at a rcdevance and that no complaints exist" ; they were, moreover, inapplicable to the state of the Country down to the Cession to Great Britain. It is scarcely necessary to repeat the assertion, that they have never had an operative effect since the Colony became a British dependency, and its wonderful progress and advance in settlement and population since that time, are conclusive against any possible necessity for their existence from the close of the French dominion in Canada. m 61 t Having (li^'I)Of^o(l of tlieso speculative matters, the irn- portiint |)rii(tic:il (|iu-'stions in connection with the waters and Wilier privilege's .- -ullcd now pr(!sent themselves, and th(?.s(' tiiiist, of course, be ronHidercd in conection with th<' grants expressly or impliedly conveying them to the inun«- diate grantees. The Royal proprietory fp'^nt necessHrily included every thin<^ te(tlinieally lyini^ within tlir- terms of the grant, and cor[)oreally within the limits of the estate granted. The genirral formula employcsd, intduded the den-iription or spe- cification of the grantful realty with its contents and boun- daries, of such extent in front and in depth, either bortlering on a river if that were the case with " ensemble lex rivieres^ ruisseaux et tout ee qui s^y trouve compris " or " ensemble tous lea hois, pres, isles, rivieres et lacs qui s\ij Irouvent " or " avec les riviiresy ruisseaux et etangs si aucuns y a " or ^^jusqu'd la riviere icelle comprise^'' or "/c long de la riviere avec les isles, islets, etc. The only difficulty with respect to the waters, arose as to their inclusion in the grant and as to the riparian rights of the Seignior, where the granted estate was bounded or traversed by a river. The dilficulty was susceptible of easy adjustmentin France where the rules and principles of the feodal law were para- mount, where possession and prescription filled up all in- tervals, and where titles, if any existed, never or rarely ap- peared in the controversy. The riparian Seignior extended his proprietory grant to the mid stream ad filum aqucc dividing his grant from that of his neighbour, and appro- priated the river traversing the seigniory entirely to himself, upon the principle of the feodal law as laid down by Guyot, p. 669. " It is a general customary principle that the entire " extent of the seigniory belongs to the feodal Seignior " either in useful or immediate property : hence the water " which runs over his land ineontestably runs over the land hi I i: :i, \\V m nM I' ! ! I ! I 62 2 " of the fondal Scii^nior." Tli(3 properly in llie river in F'raii.'e was therefore a legal incident ol'llie/zc/'established by law apart i'roin and independent of tli(^ technical eonstruclion of the terms of the grant. II(>rve, p. 3G3, d(; la Peche, says : *' The Crown right of fishing is not domanial or inherent : " the right of llshing in tlu; waters of its domaine or j)ut)lie " property is like that of individuals exercising their rights " on their private propcirty ; but they do not hold their |)is- " cary from the King more than they hold from him their " lands, fields, woods and all their property. These remarks " he says do not apply to special grants," The diversity in this respect between the Canadian grants and iIk; tenure of France shews that the feodal incidents established in the latter cannot control or extend the terms of the former, wiiiel'. must be taken in their technical sense alone, sul)ject to such legal construction as contracts conveying property necessa- rily liear, and to the operation of such general j)rinciples of the public law of the country as j)roperly aj)[)ly to them, for the simple reason that the lands were all held by grant. It must be observed that the land of Canada before grant and as it lay in grant, was a great allodium held by the King as the re[)resentative and for the benefit of the Nation, and that his grants only conveyed what they expressly compre- hended, and so far as they were not inconsistent with state policy, public laws or the restrictions and limitations of IiIh grant. The grant to include rivers could therefore pass them subject to those limitations only as property, in the same manner as the j)ro|ierty of the realty was passed, not as mere rights or privileges, and the operation of the grant wherever it alt'ected the rivers at all, wms to consider them as immoveable property. Ilenrion De Pansy in his 2 vol. pp. 639-40, says : " A navigable river is an immoveable, a " realty, in a word a material part of the domaine and as " such may belong to individuals ; it is subject to the gene- " ral laws affecting the alienation of the domaine. Ilenco " the King may alienate the bed of rivers in the same way i! 63 i " as all other parts of the domaine ;" and Potliier, Traiic de Proprieic, No. 53, says : " As to non navigable rivers, " tlioy belong to the dillerent individuals who have title and " possession to qualify them as proprietors within the ex- " tent comprehended by their titles or tlieir possession. *' Those rivers which do not beU^ng to individual j)roprietors *' belong to the Seigniors Ilaut-Juslicicrs of the territory in " which they How. No jjcrson is free to iish in them without " the j)ennission of their proprietor." A great number of concurring authorities declare, lliat they belong to the King and form part of the domaine of the Crown, but subject to separation from it by special grant : thus the soi or bed of these rivers may be alienated like any other immoveable, but for that purpose particular and spe- cial words of grant, and the observance of certain forms, for the determination and fixation of the extent of the grant are specially needed and require. Mere general terms used in the grant are not suilicicni. De Pansy, p. G14, G4o, remarks : " A x'ivqx navigable sans artifice or rendered na- '■' vjgable at the King's expense is nothing but a royal high- ••' way. Great rivers and great roads have the same object, " the same destination, the same public interests and must " in many respects be governed by the same rules," This author then makes the very evident distinction between a natural navigable river and a proprietory unnavigable river rendered navigable at the expense of the Crown. " The former is absolutely within the King's domaine, but " the property of the sol or bed of the improved river is in " the proprietor, the grantee, any interference with it is a " privation by the Crown of the subject's property and can " only be admitted after indemnity made. The joint pro- " prety is reconcileablc. Navigable rivers belong to the " Crown on account of their importance ; the instances of " their grant to riparian proprietors are very rare ; but small " rivers having been included in the feodal grant with the " remainder of the estate, surplus du territoirc, form the pa- . .!: ir ■ ^1 %v.. 64 I *■* trimony of the Seignior, who must submit to the sacrifice *' on the Crown demand for the general interest ; the extent "of the sacrifice however is controlled by the public ne- " cessity, which does not compel the Seignior to give up hie " property in the sol or bed of the river and all his other " rights over it, but only its police or regulation during the " period of its consecration to commerce : during that time, " the river in some sort becomes domanial, without however " becoming an integral part of the Crown domaine. Such " an improved river traversing a seigniory and made na- " vigable by the Seignior himself, remains not only his pro- " perty but also subject to all his rights even to that of police " as before its improvement." So also 4 Herve, p. 249 ; Le Bret, p. 62 ; Freminville, p. 418. The latter says : " Streams and all rivers qi/i portent bateaux, which are " called navigable, and floatable rivers belong in full pro- " perty to the King jure speciali although they traverse the " territory and justice of Seigniors. So also 6 Guyot 663. " 2 Henrys, p. 19, Quest. 41. Merlin R6p. vo. Peche, " p. 214, vo. Riviere, p. 541. The law, which subjects navigable rivers to the Crown domaine, is based upon the principle of the public interest ; whenever the river ceases to be navigable, the Crown rights over it cease also and those of the Seignior com- mence ; from that point the river becomes une petite riviere, une riviere seigneuriale, une riviere banale, and therefore the property of the grantee, Arret du 9 Mars 1651. 2 Hen- rys, p. 20—4 Herve, p. 250— Jousse on 41 Art. of 27 Tit. of Ord. of 1669. Whatever differences of opinion may have existed in France, as to the respective rights of the Haut-Justiciers and Feodal Seigniors, on the subject of rivers, and their res- pective property and rights in and over them, no such dif- ference can exist in this country, because the grant of Haute-Justice as well as that of moyenne et basse justice almost invariably accompanied the grant of the property 65 t 10 the Royal grantee. The feodal rights attributed to this Haute- Justice^ to control the use of rivers traversing a seigniory, as a regalian Royalty of general police either by grant or presumption, for the purpose of preventing the di- version of streams, removing impediments and interrup- tions to the employment of the rivers, the exclusive appro- priation of fisheries, islands, etc. and the regulation of fisheries by others, were not included in the Canadian grants, and could not therefore give to the Canadian Seigniors any feodal privileges over rivers. The great Royal police control of the King, which unde- niably extended over his State and every property in it, also included rivers within it, because of their connection with commerce and public advantage. De Pansy, p. 640, 1, says : " Navigable rivers as well as the sea are assistant? " to commerce, and as such belong to the entire nation, " rtieme d toutes nations^ and are under the control and " protection of the temporal sovereign : that is, the general " police and sovereign administration over the rivers must " be in the prerogative, for the conservation of governmen- " tal unity and the advancement and protection of the j)ublic " prosperity : hence it is a sovereign charge, enabling the " Crown to remove all obstacles to the improvement of pub- " lie commerce and securing for the public every possible *' advantage from the free navigation of the rivers them- " selves ; this right of police with its incidents, the right of *' fishing, the construction of mills, &c., diifers from the " rights of property in the rivers themselves ; the domaine " and the sovereignty, the property of the Crown and the " ri£i:lhs attached to the Crown are different and distinct ob- " jects " and Freminville, p. 62 of his 4 vol. speaking ol" this Royal property, police, &e., in all navigable streams, says : " It is so, not because the King owes his protection to " strangers coming into his dominions for commercial pur- " poses, but for the sake of commerce itself as that which *' promotes the wealth of his Kingdom and the prosperity \ ^i I, : ; 111 . I H .J • Hi- 1 1 TT*.., ; 1 ! •. 66 t " of his people ; his power alone can provide for the police " of his ports, rivers, &c., and if some Seigniors have ihc " droit de p^che, de monlins ct autres plus grands droils c?c.st " qu'ils sont fondes en litre. 6 Guyot, p. 6G3." These prin- ciples have received the unanimous approval of all the feudists, and Herve, 4 vol. p. 229 says that it is a privcipc constant in French law, and that the Ordonnance des eaiix rt fordts of 1669 confirms the right, which is more ancient even than the Ordinance itself. It was in imitation of this regalian police control over navigable rivers, that Hauts-J usticiers in P^rance assumed a similar right for eimilar objects over non navigable rivers, see 2 Henrion de De Pansy, pp. 639, 40, 41 ; Lacombe, vbo, Fleuve, p. 314 ; 4 Herve, p. 441, 454, 55. Renauldon, p. 387 ; but as these matters never were in their keeping nor exercise in Canada, their Ilaute-Justice as such, in ihis respect never existed legally over the non navigable rivers of the grant, and hence the authority to control the enjoyment of the river, as a feodal right, by withholding droit de pdche or j)reventing the construction of mills or manufactories, usinrs, on their banks, even if it had come down to the Ces- sion, absolutely died out with the Haute- Justice, upon the occurrence of that event. From the foregoing it will be evident that the question is narrowed to the terms of the original grant and the legal construction to be put upon them ; and that a similar rule will apply to the subgrants or concessions from the Seig- niors to their Censitaires, applying in both cases to the mere grant of certain real property. The grants to the Seigniors are not uniform, some bound the estate by the river, whilst some have the river com,' prise, some include the navigable streams, whilst other in- clude the river with its banks, battures, isles, islots, See This absence of uniformity necessarily leads to the conclu- sion, that no particular or fixed principle governed the grant, which appears to have been drawn out, in many instances 67 i the police rs have ihc drolls c'csi 'hose prin- of all the s a principc des eavx et jre aneient jontrol over assumed a ; rivers, see ornbc, vbo, Renauldon, 'ir keeping ucli, in this ble rivers of njoyment of it de p^che nufactories, to the Ces- •e, upon the question is the legal similar rule m the Seig- to the mere lomc bound river com- St other in- islots, ^c. the conclu- ;d the grant, ly instances from tlie description of the estate given in by the grantee him- »elf in his application 'o the Crown, wliilst the reasons ad- duced in the grant for its allowance plainly indicate the ef- fect of private influence ; in the construcition of law how- ever, it must be jjresumed, that the King's gnmt did not con- vey more than wasexpressly and specially granted or intend- ed to be, without interfering with the pul)lic interests: whatever part of the common fund intrusted to tiie King for the common benefit, did not expressly j)ass by the clear and special words of the grant denoting the conveyance of an exclusive property or right, remained in the Crown for "the benefit and advantage of the whole community and required a strict construction. A general enunciation, la ri- vif'fe !i roinprise, is therefor not sutliciently special or formal in law toconvey the navigable stream in the jjroprietory grant, whilst the common rule of construction would include the non navigable stream traversing the grant, 4 Freminville, p. 430. Salvaing, ch. 7. D'Olive 2, ch. 3. Arret of 14 April 1628, Despeisses Droits Sci<^ne/iriaux, lib. 5. art. 5. sect. 9. 6. Guyot^ lib. 5. Livoniere, p. G21. Henauldon, p. 365, because the latter, called Riviircs Ba- nales^ Rivieres d Cens were actual property and considered as such, whether traversing or in any way included in the estate granted, or whether mentioned or not in the grant ; hence the right in them, as property in the grantees, was un- questionable. A navigable river boundary limited the es- tate granted to high water mark in tidal rivers, and to the high water line in other navigable streams, and the extension of those boundaries beyond those limits required a special express and peculiarly formal grant. A non navigable river boundary limited the estate to the mid water line or mid stream, including of course the ripa or river bank within the property of the grantee. These principles, consecrated by a host of jurists and legal commentators, are equally ap- plicable to the immediate or Royal grant and to the sub-grant or concession by the Seignior to his CensitairCj tenant, and will serve as grounds for the answers to be given upon the sabmission to us of these points. I ti 1 •m '4i 68 i In addition to the realty conveyed as above stated, thr immediate grants professed to convey other rights, such ae the droit da jvslice specifying in some of them the Iluute, Moi/r.nne cf. B(usse Jvstice and in others one or both of ihe latt(!r two. It is unnecessary to investigate the ancient h>gal learning upon this subject, nor attempt to discover the origin of the right, whether as proceeding from agreement or usur- pation: it is sullicient to observe that the maxim of the older law, point de fief sans jusdcr, was re()laced in later times by another maxim, fief et justice n\)nl rien de com- mvn^ and that the territorial grants in which jw,nts in concessions which would be less soughtafter, if that right were refused to new settlers, as by means of fishing, they were enabled to subsist at the commencement of the settlement and clearance ; moreover, that its reserva- . tion in favour of the Seminary, in such a country as Canada, 72 »■ m'' ! '■< I i 'I ' \^** l-: would be impossible, in as much as Seigniors could not pro- tect their droii dc pdc/iCy and that it would produce endless disputes and quarrels between Seigniors and Censitaires. The droit dc traite avec les savvagvs^ ihe right to trade with the Indians, is the last of the: so-called specific privileges, which arc mentioned in general terms in the immediate grants from the Crown. It is simply suin(!ient to deny the feudal right or character of this grant, as well as those of i)c- chc, et c/iusic, all granted together in the sanie category and in immediate connection with each other, in very few cases with special words of exclusion, in favour of the Seignior. They plainly indicate the use of a coirmion formula, imi)()ssible to enforce as positive exclusive rights in the Seignior, and clearly exorbitant of the fcodalism, such as it was, to be found in the articles of the Custom of Paris. No feoda- lism could, by any possibility, attach either t.> the use or abuse or non-use of these rights, or to their i Mention or alienation : if indeed they were appreciable at all, they could be so, only as proprietory rights. Neither were the limitations and restrictions contained in the immediate grants, other than of a proprietory char- acter : they were all of a terr'torial nature and had in view, not the establishment of u odalism in the Colony, but the carrying onward to completion, of the great princi- ple of settlement, and the securing to the State the advan- tages not feudal but mate.ial in the realty described in the grant. Among these may be noticed, the condition for the discovery to the Crown, of mines and minerals in the estate granted, the conservation of all the oak timber on the granted estate for the construction of H. M. ships, the maintenance by the grantees of the public roads, the ap- propriation to the King's use of so much of the estate^ as might at any time be required for fortifications and public works, with the necessary timber for their construction, and the fire-wood for the use of the garrisons ; of course the great condition of defrichemcnt overode the entire 73 « grant and all its slipiilalions and conditions, buf in h'd them to feiter their i,'ifi with the condition, that the inhahitaiils and resich-nts within their rospe('liv(? KiSlates, shoidd l)rini,' tlK^ir corn to l)e ground at the iiiiil so erected; this was called in France droit (!•' li(in(i/ilt', and in I'inijjiand, " doinii^siiit to tlu^ mill " ; it became a principh; of customary law in France, and was gradually incorporated into the feudal system in force in the custom of [*aris, as a leg;d right in the Seignior indi;- pendent oflitle, and compulsory upon the; inhabitants of his Seigniory. In 1580 this li'gal principle was, by the operation of the reformed 7, antl 12 articles of that custom, allogi.'ther altered in ellecl, and the subjects of the Seigniors, were ndieved from this duty, unless the Seignior had tith* to recpiire it, custom thus being replaced by contract. In the settlements in this colony, the King's grants made no mention of this duty, and dilliirulties supervened which reipiired the attention of the local (Government, and wiiich were afterwards settled and enforced finally by the Im|)erial authority. The interests of the Royal Grantees and the poverty of their tenants, naturally combined to compel the Seignior to erect mills for grinding \hv, grain recpiired for the sustenance of the inhabitants of their seigniories, and jus- tified the expectation, that all the grain required for such support, should be brought to the mill to be then; ground for a customary toll. In this there was nothing of a feudal character, the tenant had not the means to erect tlie mill, and his Seignior was willing to make the outlay, provided he was protected against interference by others, and that a return for this expenditure was secured to him, this was in efiect established by positive legislation. The very early legislation of the colony evidently con- ,<.cmplated such an arrangement and, undertook not only to ty. ii;. 75 i ^tcnanco of ve liin(l«> verni'd. As early as I()(i7 within four years of the creation of the Superior CoiMieil at (Quebec, upon a representation of mill owners, /iropriiJtiuns dt; hioitlitis di: ir />aijs, shew iii^ tlu" 1,'reat expense incurred by them in the erection of their mills and in keeping them in goolhe toll, and directed certain regula- tions to be observed by the millers, in weighing the grain before being ground and the Hour after the milling. Tlu' Ordinance,' of the same Council in IG75, bannali/es all water and wind mills, then erected or to be erected by Sei- gniors in their stdgniories, and directs the tenants who have agreed thereto by their concession deeds, to carry tludr grain to mill and there leave it for forty eight hours, after which, they might remove it els(!wher(! without (daim of toll, if unground, concluding by prohibiting millers from colletit- ing grain, out of their seigniories, for grinding under a penal- ty. Finally, in IGHG, the King's Edict, charges all Sei- gniors of fiefs in Xinv France to erect banal mills, suHieiemt for thu subsistence of the inhabitants of their respective seigniories, and on their failing so to do within a specilic time, gives the right oihann/ite to any |)erson wdio might erect su(di mill. The etli'ct of this ])ositive legislation was to abolish the 71 and 12 articles of the (aistoiu as regards the conventional hand/itt', and to establish a legal hanalile in Canada in its place, at the same time investing the wind mill with the same character, of banalite unsustained by convention, as the water mill. BanaUtc has therefore in this colony been established by positive law, not by feudal right, and has been so declared and sustained by a long array of French and British judicial decisions. The doing suit to the mill, on the one hand, 76 f u: h\\ liii compelled the inhabitants of the Seigniory to " bring to the mill' all the grain which would be used in their family, whether grown in the Seigniory or imported into it for the purpose, and on the other hand interdicted all other persons from erecting or working such mills within the Seigniory where a JJanal Mill existed : without those means, the right would have been nugatory, and the outlay made by the Seignior, in obedience to the law and the Royal legis- lative, command, would have become inuriously burden- some*, rather than profitable to him. It may be observed here that the discussions of French jurists upon the subject oi Baua/ile m France are idle in this colony, in the face of positive law and a settled jurisprudence, and that as to the •xlent of the right, it is (;o-extensive with the Seigniory, Imt not beyond it, and affecis not wheat alone, but all grain milled forthe sustenance of the inhabitants of the Seigniory: a limitation of the riiifht to wheat alone, miiifht be hiirhlv detrimental to tiie mill owner, and could not have been contemj)lated by the Legislator : positive authority has formally settled that point. 3 Nouv. Denisart vbo. Bana- lite, §111 p. 148, observes, " wluuit alone is not the only grain subject to the Banalile. All other grain is equally subject to it, wherefore all persons who use other grain are bound to employ the Seignior's mill." This very respec- table authority is precise. The various Arrets, ordinances and judgments of the Intendant on the subject of mills and Banalile de Moulin^ extends to the general inclusion of all grain capable of being manufactured; the terms grains ei d/cds, blcds el aulres p;rains are frecjuently found together in the same Arrets^ in some i>;rains alone, in others Med alone is used according to the circumstances of the case, evidently without design in the selection of the word ; and 5 Herve, p. 235, observes " the term " wheal" is more or less re- strained in our Customs: usage must be the guide for settling the extent of certain words used with reference to the right of champarty." No case has presented itself of a juridical character in this province, either extendining or %■ - 77 t "bring to Iht ihcir family, nio it for the oilier person!! the Seigniory, se means, the outlay made le Royal legis- ously bnrden- be observed n the subject n the face of that as to the Seigniory, Imt but all grain I he Seigniory: j'ht be higlilv lot have been authority has ■t vbo. liana- not the only in is equally se other grain IS very respec- is. ordinances of mills and dusion of all rms grains et nd together in ers b/ed alone ase, evidently ind 5 Herve, •e or less re- the guide for reference to ited itself of a xtendining or limiting the term, and no difHculty has arisen on tliat part of the matter of BanalitH. It is only necessary to add, that Banalitc is not absolutely connected with Rivers, because positive law has attachod that quality to wind as well as to water mills : that it is not a feodal right in the sense of the French authors as pro- ceeding from the mere possession of a Seigneuric^ but from the erection of a Seigneiirial Mill in the possession of the Seignior, and lastly that it does not originate in this colony in the law of the Custom of Paris, but in the special Legislation made in or applied to the Colony and in the common law of France in reference to it. The concluding portion of this part of the subject embrace;* the questions which apply to the reservations and prohib- tions contained in the concession deed. It might suffice simply to answer, that these are found in formal contracts entered into between the Seigniors and their Cendtaires^ and that such stipulations are in laiitii- ditie voluntatis conlraltenlium. Both these grounds have been disputed, and it therefore becomes necessary to ascertain if that latitude of will has been controlled in either of the parties. It is difficult to conceive on the one hand that any municipal law can interfere to prevent a Censitaire from sub- mitting to the terms of a contract, voluntarily entered into by iiim, of which he has at no time complained, and which the public officers, the guardians of public rights and morals, have never cjuestioned : it is moreover difficult to believe on the other hand, in the possibility of a legal interference to prevent a Seignior from stipulating in his own favour and in- terest, conditions and terms in the grant of his own property, not contrary to good morals nor to the express prohibition* of any public law. But how stands the case ? The absolute right of property of the Seignior in the estate granted to him is admitted, his voluntary and non-compulsory aliena- tion of any part of it has been demonstrated, and his perfect 'i:i 18 i freedom to obtain the best terms in his ou'n interest in the disposal of it, has been generally conceded. It lias Ix^en shown that the Bail a cct/s^ commonly called conecssidn, was the most advantageons mode of parting willi the estate in portions, to carry into eflect the condition o{ defrichp)}iignior may attach to his concessions his own con- " ditions, and that their acceptance by the vasssal is not " subject to be controlled or interfered with by other j)er- " sons, '■'■ Co/iscssu vassa/Ji factu, nori licet quidr/uam immu- lare aut dcrogarc. Kenauldon, p. 173, says : " Censuai " grants proceed from the Seignior's liberality or from con- " ventions freely entered into : it would be eminently unjust " not to sustain them, or at least faithfully to maintain the " stipulations soleinly contracted between the j)arties." " Herve, 1 vol., p. 380, 389, 393, " Le troisieme " principe est que tons les devoirs que le vassal doit comme seigneur, outre la reconnais- au seigneur. " sance (de quelque espece qu'ils soient, et de quelque " maniere qu'ils aient etc elablis) sont censes dans I'usage "et I'etat actuel, etre la charge et la condition de I'infeoda- " tion primitive, et I'efTet d^une convention volontaire a " laquelle il n-est paspcrmis de toucher.'''' IS ''^ !L I; (( Le seigneur de son c6te, ne peut elendre ses droits, " sous pretexte d^inlerpretafion et de prcsomption de la " volonte dcs parties, lorsqu'elles ont contracte ; ce serait " ajouter au litre primitif, Non opporlet ab cxtraneo jurt " suppkri quod spontanea omissio rcpudiavit." i\ rost in tlir 1 has l)een conccssidn, 1 llie ('Slate 'fn'clirnicnt, o be taken, red in tlie CO need it fid inates this e Seignior vassal, or l)t or reject lor both." at as both just rii^hts, own eon- ssal is not otlier j)er- ua?n immu- " Censual ■ from con- !ntly unjust laintain the e parties." troisieine vassal doit reconnais- de quelque ins I'usagc ! I'inl'eoda- )lontaire a 19 1 " En un mot le seigneur et le vassal ne pouvent ni I'nn " ni Pautre rien changer au c utrat sans un consentement " coiumun, rnais ils j)euvenl, de concert, y apporter tel " chang(;rnent et telle inodification qu'ils jugcront a propos " en ee qui ne touelie j)oint a son essence. N/'/iil c.nim turn " natiircdc est quam eo genere quod que dissolvi quo coiiiga- ''tum esir It is unnecessary to multiply quotations in support of the principle above adverted to, but uj)on this point it is merely just to employ the language of Ilerve, already (juoled : " That all the services and obligations charged u))on a con- " cession, including the cens formed a censual unity of " consideration, explaining the modicity of the ancient rate; " that it was natural for an intending tenant to calculate the " whole charge and payment to be made, and to pay so " much less in money in proportion as his land was subject " to a number of services and obligations charged upon it." The reservations and prohibitions inquired of, have the legal character of a stipulated consideration for the grant of the land. The concession deed tmit a cens, between the Seignior and Censitaire, containing those charges has ex- isted for an exceedingly long period, publicly and without contradiction, these charges have been constantly enforced in the Courts of justice as universally acknowledged and undoubted rights without objection, and the Seigniorial property of the country has changed hands more or less frequently since the cession with those charges included as part of the property sold or conveyed, and for which the price has been calculated and paid. Even if the charges inquired of were against the yws pm6//cmw or public law, it was in the perfect right of Seignior and Censitaire to make the agreement by which the concession should be charged with those reservations and prohibitions : this is the common case of volenti nan fit injuria, with which Courts of justice cannot gratuitously interfere. ;i I ■<•.>. it is assetctl, that because the Arrets of 1711 and 1732 requiri! the concession to be made at a rent chari^e only, that this provision is preventive of tiie Reservations : this i? clearly erroneous, because the direction in reference to the rent charges, was evidently dictated for a particular j)ur- pose, as antagonistic only to the complaint of the sale of wild lands, and for tlu; ))nrpose of restraining that job- bing alli'ged to be prejiulicial to the colony and previ nt- ing the increase of clearance and settlement. It will bf seen that the penalty of the Arrets applies to all proprielorf: of wild lands as well as to Seigniors, and that no mention is made of the reservations in the terms of the Arrets. A general examination of these Arre'ts themselves is repugn^.. iwo years, and to liecominq ipso facto void aflor llic slfrnUi. cation of llie S()V('n'ii{ii's pleasiirc ol" disallowance tluircof , this Act alsi, restricted to a ccn'tain extent the action ol" the Colonial Ici^'islatiire on the subject, of reli;L,Mons classes, hut did not interfere with or limit its legislative power over the tcMiure of the Country. Till! Union Act of Upper and Lower Canada 3 and 4 Vict. cli. 35, also provides, for the validity and hinding ollect to all intents and pur|)oses of all laws ])assed by the Colo- nial Legislature and assimted to by the Governor in IL M. name, such laws not being rei)ugnant to that A(!t or to sucli })arts of the 31 Cim). 3, as were not tluM-ciby rep(!aled or lo an// Act of parlidincnt made or to be made and not thereby re- ])caled extending to Canada ; but these laws are also sub- ject to Royal dissallowance within two years after their re- ceipt by the Secretary of State, and to being declared void and 2iull aft(U' tlie signilleation of IL M. pleasure of dis- allowance. The Union Act also limited the legislative delegation with reference to Ecclesiastical and Crown rights, but did not restrict legislation upon the tenure of the Country. In the interval of the dissallowance of any existing Co- lonial Act, and until its dissallowance, it was valid and bind- ing in tlic Colony, It a})pears therefore that by the Imperial Act 14 Geo. 3, the laws and customs of Canada with reference to property and possessions in Canada, were to remain in force until varied or altered by any Ordinance to be passed by the Governor and Council, a power afterwards vested in the Provincial Legislature of L. C. by the Imperial Act 31 Geo. 3, and continued to the present time in the United Legislature by the Imperial Act 3 and 4 Vict. ch. 35, unless that power shall have been restricted or repealed by otherlmpcrial Legislation, which is said to exist in the two Canada Trade and Tenure Acts alone. The former declares, that doubts exist whether iir 87 t .0 si^Miili- tli<;r(M)i' , )n <)(' tilt' wor over I 3 and 1 iiii,' ellect Ihc Colo- iu II. M. )r 1o such or lo ani) orcby re- al.so sub- llioir re- ared vt)id of dis- ^gislalive vn riglits, e t)f the >ting Co- and bind- rCO. 3, llie perty and itil varied Governor 'rovincial 0. 3, and lature by iwer sliall gislaliou, d Tenure : whether % ihc tenure of lands in Upper and Lower Canada hohlen in //<■/ and sd'j;ncuric^ can legally l)(; changed, and provides that holders of lands in /fc/" and seigniory may surrender them to the Sovereign and may petition for their re-grant in free and common soccage, which shall be accorded on payment of an agreed Ujxm conmuifation, to be aj)pli('d to the administration of juslict! and tlu^ support of the Civil Government in the Province, 'i'he latter G Geo. 4 making further provision in the matter provides, that any pro- prietor of a ficf or Seigniory in Lower Canada having lands therein granted by and held of him tl litre dc jU'f or a ccns^ on petition therefore and surrender of the ungranted lands, in the fief or Seigniory, and on pay- ment of the agreed upon commutation, shall have his y?^/ and Seigniory and lands fived from all lloyal Seigniorial riglits and burthens, and shall receive a re-grant of all the unconceded lands in the tenure of free and common soccage. It must be observed with reference to this Act, that it is facultative merely, enabling the Seigniors at their pleasure to obtain the tenure advantages olTered, and thereupon authorizing their tenants at the pleasure of these last, to com- pel he Seignior to commute their conceded lands into the tenure of free and common soccage. In the Imjicrial Statutes the voluntary princi})le for action and commutation is adopted, but there are no restrictive words or limitations upon the powers of the colonial legislature to enact compulsory mode of commutation for such Seigniors as are not willing to take advanta.;':) of the Imj)erial Legis- lation, which contains no mandaie upon them to adopt its provisions, and which might therefore rciuain for ever un- apj)li(Hlfor, to tlie public disadvantage in this matter, if it could be considered as restrictive of Colonial Legislation. Wherever the Seignior has omitted to secure the operation of the Imperial Statutes, they arc a dead letter, and the right of Colonial Legislation at once takes eilect. Moreover it is clear, that tiie Imperial Legislation of the Union x\ct, 3 it 4 Victoria, passed since the Canada Jl: I '!:" ih''-. I;'", I * M • 88 I 'I'mde and Tonuro Acts, has validated and givrn hindinj^ idlcet in llio colony to the Seigniorial Act ol' 1851, Ironi ilie time of its assent by the (Governor, wherever it can legally a|)|)ly, as in unconunuted Seigniories, and that all acts done; under it are legal, until llu; disallowanct; of tin- Prt)vineial Act shall have heen signilied. This is carrying out the j)rinei|)le laid down by Dwarris on Statutes, 2 vol. |). 99J) in which he says : " Acts however, passed in a " (A)lony without a suspending clause, inunediately that " they are assented to by the Governor, become and con- '' tinuc in force till notice is given of their being disallow- " ed." He then illustrates the rule by reference to the course of proc(;edings, adoped in England by the Commis- sioners of legal imjuiry for the colonies, and thus |)rocced3 : '■'■ from the preceding statement it appears, ihatcomparative- '' ly few of the Statutes passed in the Colonies receive '•' direct coniirmat ion or disallowance of the King. It is '•'■ clearly understood, that so long as this prerogative is not " exercised, the Act continues in force under the qualified '' assent which is given by the Governor in the Colony itself, -' on behalf of the King ;" and this doctrine is allirmed ipsissimis verbis by Clarke, in his Colonial law, p. p. 41, 2, J, 4. From the foregoing, therefore, it is evident that the Act of 1854 is good law in the Colony, that it does not operate in commuted Seigniors, but that it aj)plies in all other cases, suspending the /rt6V///c' of the Colonial subject, under the enabling Imj)erial Statutes, and preventing him from taking advantage of its provisions. It is true that the Constitution of the United States has formally extended to tiic Supreme Court, the necessary power and avithority to question ths legality of any Legisla- tive Act, whether made by the General or by a State Legislature ; but this has arisen from the peculiar federative union of the different Sovereign States in one large body, and their agreement to submit the constitutionality of their laws to 89 I n given of IH.VI, IT it I'JUI tlliU ull of llll' currying •», 2 vol, eel in fi lely tliai iiul coii- ii.sallow- i to tliu Commis- roccecLs ; pariUivf- 5 rcceivt; ;. It is •e is not qualified my itsell', allirmetl p. p- n, some indcpcndonl arbiter who will confine them within llu- terms of their written constitution or constitutional com- pact because in that sense the interpretation or construction of the constitution or compact, is as mnch a judicial Act and as much requires the exercise of the same l(>gal dis- cretion in the interpretation or construction, as of a law In England the generally received doctrine certainly is, that an Act of Parliament, of which the terms are explicit and the meaning plain, cannot be question- ed, or its authority controlled in any Court of Jus- ice. This principle applies equally in this Pro- Kincc, where we may be held to obey Provincial Legis- laton, whilst it is equally our duty to shew in what manner it may conilict with the paramount Legislation of the Empire. It only remains to be observed, that the judgment i)ro- nounccd upon the various questions of the Attorney General, contains the answers which it has buenconsidered expedient to givo to them. the Act ; operate er cases, nder the m taking atcs has lecessavy Legisla- a State sderativu lody, and ir laws to Il-i m \\- ' r .!,-■.< ERRATA In Opinion of Hon : Judge Badgley. Page 16 17 23 31 *1 57 59 63 65 73 74 75 u 78 81 83 6 line, read, or any other mode of. 1 line, " and the Bishop with. 22 line, " 395. 27 line, omit, as. 17 line, " was thereby provided. 34 line, read, 251. 4 line, 29 line, 17 line, 18 line, 17 line, observe. it may be observed as true. required. territorial sovereign. 14 line, 20 line. a ii 5 Herve 86. 71 and 73. millers, under a penalty. 21 line, omit, under a penalty. 19 line, read, consensu. 6 line, " of churches and in the assumption. 16 line, " charges with above exceptions, and 32 line, " of a certain. " " omit, a, before render. 12, 14 lines, read, feudal. 22 line, read, become. !l I ■ •i; i- t - ■■•^ |!i ly ANNO DECIMO-NONO VICTOIiliE REGINTE. CAP. LIII The Seigniorial Amendment Act of 1856. [Assented to Idth June, 1856.] WHEREAS it is expedient to amend the Seigniorial Preamble. Act of 1854, and tlie Seigniorial Amendment Act of 1855, in order to facilitate the operation of the same : There- fore, Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows! I. Whenever the rule prescribed by the second sub-section The ten year of the sixth section of the Seigniorial Act of 1854, for de-bo dispensed termining the yearly value of any casual rights cannot be ^''^'^J^j^'^^^^^g applied in any Seigniory, the Commissioner shall himself not appiioabu. adopt some other equitable mode of estimating such yearly value. H. The sc.enth sub-section of the sixth section of the said Sub-section 7 of goction 6, Seigniorial Act of 1854, is hereby repealed. repealed. HI. In estimating the casual rights of the ^^own in the Casuaij-^ghta several Seigniories in Lower Canada, the Commissioners how to bees- shall establish the average yearly revenue of the Crown '™* aric^^ing from these rights throughout Lower Canada, and such average yearly revenue shall be taken as representing the interest at six per cent, of a capital sum to be appor- tioned among all the Seigniories liable to the payment of Quitil, in proportion to their value : the amount apportioned to each Seigniory shall represent the rights of I }l Mi H i ti ;) !■! All provisions f )r the appiiint- iKont of /i'.r- ;:er/j, repealed. Sdcfiim 11 of St'ii(iiioriaI Act {<( n54, auien- ded. V/lierc the schedule shall le left for exa- ii'.ination. 2/ the Crown therein, and shall be dcduc^tcd from the amounf to be paid by the Censitaires for the redemption of the casual rights of the Seignior. IV. From and after the passing of tliis Act, all the pro- visions relative to the appointment of Experts, contained in the tentli Section of the Seigniorial Act of 1854, or in any other Section of the said Act, shall be repealed ; and in all Seigniories in which there shall have been requisitions for or appointments of Experts, the Commissioners shall act in every respect as though there had been no such requisition for or appointment of Experts. V. All the words after the words " following the said notice" in the first paragraph of the eleventh section of the said Seigniorial Act of 1854, (including both the sub- sections,) are repealed, and in lieu thereof the following are substituted, " in some convenient place in the Seigniory, " in charge of some fit and ))roper person, and the name of " such person and the place of deposit shall be indicated in " such notice ; and any person interested in the Schedule " may point out in writing, addressed to the Commissioner " and left with the person in charge of the Schedule, any " error or omission therein, and require that the same be " corrected or supplied ; and at the expiration of the " said thirty days it shall be the duty of the Commissioner " to be present at the place indicated in such Notice, and to " examine into and decide upon the objections made in " writing as aforesaid. " Sub-section 4 VI. The fourth sub-section of the twelfth section of the to apply only Said Seigniorial Act of 1854, shall apply only to the Com- 8!oner"c™m- missioner who shall have finally completed the Schedule in '•'f'd°/''° question, and not to the Commissioner or Commissioners who shall have taken any of the proceedings preliminary to the completion of the Schedule. Subsections 5 VII. The fifth and sixth sub-sections of the twelfth sec - 12, repealed. tioH of the Said Seigniorial Act of 1854, are hereby repealed.. CKinmissioner t'> decide on y'.ije^tions. amounf le casual the pro- laincd in r in anv md in all jns for or all act in quisition the said ion of the the sub- wing are eigniory, name of icated in Sehedulc- missioner lule, any same be n of tlie missioner e, and to made in on of the llie Com- hedule in lissioneis Tiinary to elfth sec- repealed.. 3y VIII. No revision of any Schedule shal-. be allowed, un- period for .ie- less application be made for the same A'ithin fifteen days ""^^f Srhu'- after the Commissioner shall have given his decision, as'^"'*'' ''""'*'^ provided for by the eleventh section of the Seigniorial Act of 1854, as amended by this Act ; and every sach appli- cation shall be made by a petition presented on behalf of the party interested, to the Revising Commissioners or any one of them, specifying the objections made to such Schedule. Upon the receipt of any such petition, it shall be the duly proeeedinge of the Revising Commissioners, after having given eight l^'ju^a^^p'i'" days' notice to the parties interested, in the manner pres- cribed by the seventh section of the said Seigniorial Act of 1854, to proceed to revise the Schedule therein mentioned, and for that purj)ose, to hear, try and determine the matters alleged in the said petition. The proceedings upon such revision shall be kept of record, and if the Commissioners iind any en or, they shall correct the same. IX. The Commissioners selected to form a Court for the Where the rc- revision of the Schedules, shall sit at Montreal for the Sei-nli.isione'rs' gniories in the districts of Montreal and Ottawa; at Three "''^'^ '^" Rivers for those in the District of Three Rivers ; at Quebec for those in the District of Quebec ; at Kamouraska for tho.se in the District of Kamouraska ; and at New Carlisle for those in the District of Gaspe ; but any petition for the revision of a Schedule may be presented to the Re- vising Commissioners, or any one of them, in any District. X. And inasmuch as the following Jiefs and Seigniories, Special pn- namely : Perthuis, Hubert, Mille Vaches, Mingan and the [„!„ unsettled ' Island of Anticosti, are not settled, the tenure under So'gnio"t'K. which the said Seigniories are now held by the present pro- prietors of the same respectively, shall be and is hereby changed into the tenure of franc aleu roturier : The diffe- rence in value between each of the said Seigniories as here- tofore held and the same Seigniory when held in franc aleu roturier, and also the value of the casual and other i ^ I t , 1 . 1 k I i'l i|i nt Oovernor in Council niny extend thin ge<"tion to Cstngniorie.i proved to lio unsottloil. Special pro- vision a? to Crown Seig- niuricj. No lods tt ventts on sales after 30 May, 1855. Crown Agents to he guided by deoisiuns of Seigniorial Court. Aj riglits of the Crown in the said Seigniories, shall be ascertained and entered in the Schedule of the Seigniory, and the amount of the whole shall upon the fyliug of tlie said Schedule become due and payable by the Seignior to the Crown, and shall form part of the fund appropriated in aid of the Censilaircs ; And whenever the Governor in Council shall have been satisfied that any other //(/ or Sei- gniory is wholly unconceded, it shall be lawful foi tlu; Go- vernor to issue a Prociamalion declaring that such jii'J ox Seigniory shall thenceforth be subject to the operation of this Section of the present Act : and from and after the date of the publication of any such Proclamation in the Canada Gazette^ the tenure under wliifh the fief or S(,Mgniory or fiefs and Seigniories tlierein mentioned are now held, shall be changed into the tenure o{ franc aleu roturier ; and in making the Schedules thereof, the Commissioners shall deal with smhfipfs or Seigniories in every respect as if they had been specially mentioned in this Section. XI. And whereas the third section of the Seignioral Amendment Act of 1855, does not apply to Seigniories held by the Crown in Lower Canada, whether such Seigniories form part of ihe domain of the Crown, or are so held under any title or from any other cause ; and it is expedient to grant to the Censilaircs in the said Seigniories, advantages similar to those granted to the Censituircs in other Seigniories by the said Section ; therefore it is enacted, that — 1. No Lods ct Ventes shall be demanded from pvuchasers in tiie said Seigniories held by the Crown, upon purcliases made since the thirtieth day of May one thousand eight hundred and fifty-five ; 2. The Crown Agents for the said Seigniories shall, in the collection of the revenue of the Crown therefroin, and in regard of all other rights of the Crown as Seignior of Much Seigniories, take notice of and be guided by the an- swers and decisions of the Special Court under the Seig- 6j niorial Act of 1854, upon the questions of Ilrr Majesty'.s Attorney General for Lower Canada, evcept in so far as such rights may have been reduced or modified by any order or orders of the Governor in Council. 3. AH unconeeded lands and waters in tlu^ said Sei-i'nronceded I II 1 I I 1 I i~s • 1 I IiiikLs und gniories, sliall be held by the Crown ui absoliUe properly watow to be and may be sold or otherwise disj)osed of accord inj^ly, and p^J'/y'^" ,^o'' when granted shall be granted \n franc alcu mturicr. Crown. XII. And in amendiiK.'nt of the third section of 'he said •^'''i'",",,^/''" Act of 1855, Seigniorial Amendtrient Act of 1855, it is enacted, ,hat tii(! umetKiod : „ . . r ^1 1 II r ,1 -.1 Approximate Commissioners or any one or more ot tliem, shall lor liwitli vaiuo otiau- make a sej)arate statement for each Seigniory, shewing, ii«'iK.'','*,vi,nn''tiH) nearly as can then Ih' ascerlained, and .,ul)iect to correction ","^"'? ''"'^ '" •' 7 J 0,0 Soigtiior, instead of in- IcrcMt on his npproximnt* thereafter : 1. The average yearly revenue from lods et vcntts^ — 2. The averag(! yearly revenue from qidnt^ — 3. The average yearly revenue from reliefs — and 4. The average yearly revenue from other casual rights (if any) which, under the said section, ceased to be jjayable after tiie passing of the said Act : 5. Siu'h slafement shall be made; separately for each sei- gniory and so soon as the Commissioners are able to make it, and shall be sent to the Receiver General ; and instead of liie interest mentioned in the said amended third section, (which shall accumulate as part of the Provincial aid to the Ccnsit(iires^) the amount of such yearly revenue in each sei- gniory as shewn by such statement, from the thirtieth day of iNfay one thousand eight hundred and fifty-five, (the day of the passing of the said Act,) up to the first day of January or July last past at the time the statement shall come to the Receiver General, shall bo then paid by the Receiver Gene- ral to the Seignior or Seignior dominant of such Seigniory ; and thereafter one half of the average yearly revenue men- ti|i;ire of tLo I'und. I 1 I< < \U It/ 1 ; ! ! \ i« COIUIII tioncd in oach such statement respectively, shall be paid to the Seignior or S(!i^nior dominant entitled to it, on the first day of January and the first day of July, until the Sche- dules are finally deposited ; and the amount so paid to each Seignior shall be debited to him, as so much received by Mow tho Pro. him on accoimt of the portion of the Provincial anijronria- viuuial aid to , , ' i i i »>e deducted tion lor the relief of CV«.s77am'.v payable to him, and of the Irom the value . . , i ,• i • • i of Seigniorial uitcrcst on sucli portion ; but in computing llu^ amount to i*S.'uted!' ^^ deducted on account of the said Provincial aid, from the total value of the Seigniorial rights in any Seigniory as shewn by the Schedule thereof, in order to ascertain the amount remaining chargeable upon the Censilaires^ the correct value of such casual rights (as finally ascertained by the Schedule) from the said thirtieth of May one thousand eight hundred and fifty-five, to the publication of the no- tice of deposit of the Schedule (and not the approximate value first above mentioned) shall (as representing the ave- rage sum saved by the Censitains during the same period, by the non-payment of the said casual rights or any com- pensation therefor,) be deducted from the total amount of principal and interest payable to the Seignior from the said Provincial Aid, and the remainder shall be the Miiiitt)l)e deducted from the total value of the Seigniorial Rights as shewn by the Schedule, in order to ascertain the amount payable by the Censitaircs : Provided always, first, that the whole sum to be paid by the Receiver General to any Seignior doininant^ shall be also deducted from that which would be otherwise payable by the Censitaires of the Seignior servant ; and secondly, that if the approximate sum paid to any Seignior dominant under this section by the Receiver General, shall be more or less than the true value of his rights for the time, the difference shall be de- ducted or added (as the case may require) from or to the sum to be paid by the Receiver General to such Seignior dominant^ under the sixth sub-section of section six of the said Seigniorial Act of 1854. Mocey owing XIII. In the event of any Seignior or Seignior dominant^ Prcviso. Proviso ■ I i!! 7/ )o paid to II tlio first the Sche- d to each ccivcd by ip[)r()pria- ind of the iinount to from tlie gniory as ertain the aires y tlie lained by thousand )f the no- )roxiinal cii- 1 error in sc dule of any Seigniory, whiclithc provisions olthc tnirteentli22and2(i of Section of the Seigniorial. Act of 1854, should be given by i^^t^V^^-^*^-"' the Commissioner who shall have made such Schedule, istjopositot .stm erroneously referred to in the twenty-second and twenty- sixth Sections of the same Act, as a notice to be given by the Receiver General, — it is hereby declared and enacted, that the said twenty-second Section should, and the same shall henceforth be read and interprcicd as if the words " by the Receiver General ", in the second and third lines of the said twenty-second Section, had never been inserted therein, — and that the said twenty-sixth Section should, and the same shall henceforth be read and interjireted as if the words " of the Receiver General ", in the third line of the said twenly-sixlli Section, and as if the words, " in his hands ", in the fourth line of the same Section, had never been inserted therein. XX. This Act shall be called and known as " The Sei- Short Title gniorial Amendment Act of 185G," !>. it INDEX TO THE SEIGMIORIAL ACTS. {The items printed i'.n Italics refer to the parts no longer in force.) ACTS, Repealed, vol. A, 2 a, 35 a ADMINISTRATORS, May redeem rentes < consiituies, vol. A, 21 a ANTICOSTI, To be held in franc -alleu roturier, " B, 3 j APPEAL, From decision of Jutf^es, « A, 18 a ARREARS, Five years' rentes constituees may be recovered, « « 26 a Due at time of commutation, « « 28 a ARRIERE-FIEF, Definition of, Value of lucrative rights of Seignior Dominant therein, ' ATTORNEY GENERAL, To frame questions : — See Questions, " « BANALITY— jDm7 de banalite, Yearly value thereof on each lot, « " Mode of establishing the same, vol. A, 6 a : vol. B, 1 / To become a rente constituce, ! vol. A, 6 It Application of revenue from Special Fund in reduction thereof, « « 22 ition is iiled,) " " 25. ( COM.MISSIONERS, Appointment ot, " « 2e impeachcil for informnlity, kc, vol A, 29 a riuiisliitu'iit lor olislructiou in exfcutioii ol'iii;ly, ■ vol. A, 39 a, 40 a May inspoct Notaries' rcpoitorius, vol. B, 7 / COMMUTATION, Acts of 8 & 12 Vic, repealed, " A, 2a. rominiittHl lands to be entered in tli(! soliedi le, " " -la Rente payable by any C'cHwi/a/j-t; in lieu uUv(h el ^■n^■.s• on any land partially commuted, to be liilti to be the valn(! of such lodti ct rrntei^, ■ • Lands heretofore commuted declared free from all sei- gniorial rights, CONCESSION OF LANDS, No lands to be conceded until after deposit of schedule, Future concession, CONVICTION, For obstructing Commissioner, &c., not to be quashed for want of form, vol. A, 39 a, 40 a CORPOKATIONS, May reileem rcJites const iluies, vol. A, 24 a COSTS, May bo awarded against either party, upon application for revision of schedule, " " 13 a COUNSEL, May be heard by the .fudges on the quc-lions submitted, " " 16 a Number limited, vol. A, 16 a, 17 a COURT, Special, of .Judges of Queen's Bencli aid Superior Court, vol. A, 18 cf CROWN RHillTS, Value to be ascertained in each seign'ory, " " 3 a Casual lioio estimated, " " 7 o " B, 1./ To cease upon publication of notice of leposit of schedule, " A, 11a Ilevenue tlierefrom to form i)art of fnul, " " 20 -- "I INDEX. ENTAIL, lienles cnnstiluees upon entailed lands may bo re Jeei ned, if then; 1)0 an opposil ion in foicf, Kedoinplioii aliowud, ERRORS, Currection of, in tlie scli edulo, vol. A, 11 a ; vol In frunoh version of Act of 1851, In sections 22 & 26, . EXECUTION, /?ew/es (either above or 1' .iiderXIO), mayberecovo: red by execntion, for arrears not execediiiir live ^ears, Sale uiuler execution iv ot to have ihe ellect of ] layuig seijjnioria! rights or r entea const iluccsXo whic li the property may be liable , EXPENSES INCURED U NDER THIS ACT, Payable out of Consoliilate d Revenue Funti, Separate accounts thereof i U) be kept, EXPERTS, vol. A, 26 6 " " 31 u . B, 2.;, .3.7 vol. A, 38 (( " B, 9./ <' A, 26 (, u o )H a 19 a 21 <( vol. <( ti a H vol. May be appointed in curtu 'in cases, Jlow appointed, 'J'/icir powers, Appoint nunt of a tliird, 'riii'rr decision to be entered in the sc/iedulc, A sole expert may be appoin ted, Commissioner may be either . 'ole or tliird expert,. Filling up of vacancies, .... Theiifees, liepeal of all provisions relatin % to, i;VIDENCE, Commissioners may take eviiler .ce on oclh, Ptjnalty for refusal to give, May be demanded by Commi; \Hioners for revisic n of schedules,. Copies and extracts from schedu les deposited in o flice of Superior Court (certified by th e Clerk), to be deei ned authentic, FEES, /;. Xpert Clerk of Superior Court, for copies, &c., of schedu los, FIEF NAZARETH, &c., Montreal, Act not to apply to fiefs Nazareth, St. Augustiu. , St. .losepli, Closse and Lagaucheliere, Fiefs, certain, declared to bo lield i a franc-allci • ro- ttirier, Governor u\ay declare others to be held in infranc-a: 'leu roturier, A, 9 a, 10 « '< 9 a, 10 (/ « 9 a, 10 sr " 9 a, 10 a '^ 9 a, 10a vol. A, 10a " <' 10 'i A, 9 a, 10 a vol. A, 10 c « B, 2 / " A, 8 a « « 8 a " " 12 a « « 10 a ^' " 13 u « (' 29 a « B, 3 / u « 4 - INDEX. « 28 a FRANC-ALLEU ROTURIER, Lands f,n-anted after deposit of schedule, to be in, vol. A, 14 ff Lands heretofore commuted declared to be held in, « Lands upon which mortmain dues have been paid de Glared to be so held, Certain fiofs declared to bo held in, Governor may declare other fiefs to be held in, Lands in Crown seigniories to be granted in, " FUND CREATED FOR PURPOSES OF TIHS ACT, vol <( 29 o 3; 5 7 Revenues appropriated to form a Special Fund, Separate accounts thereof to be kept, vol Special Fund to be applied (after payment of expenses), in aid of the Censitaires, • • • Proportion of fund coming to any Seign.or may be paid to him (with interest) within six months alter deposit of schedule, if no opposition is filed, Mode of distribution when opposition is filed, .-• • • • Receiver General to invest any portion not immediately re(|uired,". •.•••.••. ;• ' No part to be applied to the Crown seigniories or Je- suits' estates, A, 20 a, 21 a A, 21 a « « 21 (f « tc 21 a <( (C 21a a (I 37 « li (C 38 a " B, 3> (( (I A, 23 « 25 a HUBERT, To be heldin/ranc-a//ew roturier, HYPOTHECARY CLAIMS ON SEIGNIORIES, Persons having the same, to file an opposition to the distribution of the commutation money within six months after notice of deposit of schedule :— See Op- position, Rentes constiluces created under this Act, to have pre- ference over other hypothecary claims, Mode of disposing of redemption or commutation money, when an opposition is in force, based on hypothecary claims, INDIANS, Act not to apply to lands held in trust for, , INFORMALITY, No schedule, or proceedings of Commissioners, to be invalidated by, ; ■ • No proceedings for obstructing a Commissioner, to be qua&hed for, INTEREST, In what cases payable to Seigniors, vol. A, 3G a; " B, 5j INTERDICTED PERSONS, Opposition by, '' A, 23 a « " 31 a « 29 (i (I u 39 a 40 a 1 1 • ■ .'1 VM i INDEX. INTKRrTJKTATION, Act not to e.vtciui to certain Ecclesiastical, Crown, Jesuits' estates, or OrJnaiico sei^lli()ries, vol. A, 29a Act not to alleet anears or other claims ot Seigniors,.. . . " " 'M)a liiteri)retation of certani words, " « 'AOa Intent of Act (loclurec!, " « 31 a Interpretation Act to apply, " « 31a JESUITS' ESTATES, Act not to apply " « 20 a Governor may direct schedules to be made lor, « << 38a No pari of Special Fund to be applied thereto, « « 38a JUDGES OF QUEEN'S T3ENCII & SUPERIOR COURT, Attorney (ioneral to submit certain questions ; — See Questions, " " 1,5a Sjiecial session to be called foi the hearing thereof,... " " 18 o Who shall preside, " « 19a Special Judires maybe appointed to replace others, vol. A, 18 a, 19 a E(jual division, vol. B, 1 j JUSTICES OF THE PEACE, Commissioners may command their assistance, " A, 8 a May commit any person convicted of obstrnctin;j; Com- missioner, '< " 39 a LANDS, Description of in schedule, ** " 4« May be entered upon by Commissioner, in making his examination for the schedule, « « Qa None to be concedi'd until after publication of notice of deposit of schedule, " " 14 a How may now bo conceded, " B, 8 ;' Delinition of the word " land," « A, 31a Persons occupying with consent of Seignior, to be deem- ed C(7JSi7«(n's,. .. . " " 39a Not to be hereafter charged with irredeemable rent,. .. . " B, 8^" I.AUZON, SEIGNIORY OF, Revenues arising: therefrom to form part of the seigniorial fund, . « A, 20 a LETTRES DE TERRIER, Right of Seigniors to obtain, abolished, « " 35 a LODS ET VENTES, Yearly value thereof on each lot, " " 4 a. Mode of averaging the same, vol. A, 5 a ; vol. B, 1 j To become a rente constilucc, vol. A, .6a Apnlication of revenue from Special Fund in reduction ttiereof, " " 21 « Rente payable by anyfiensitaire in lieu of lods el rentes, to be held to be the value of such lods et rentes on the land referred to, , " " 6 ■!'I w INDEX. 4«' 8 a LODS ET VENTES, To ceaso upon publication of notice of deposit of scho- , ^ ,, dull',....... vol. A, 14a from the passiii" of the amending Act, " *' *^^ " I pas None payable in Crown seigniories,. . . Yearly revenue from, to bo ascertaineil,. « B 5> A, '23 « K, 3/ " A i;j a vol. A, 23 a 2.5 a 2!»a MARRIED WOMEN, Opposition by, MILLE-VACIIES, To be held in franc-alleu ruturicr, MINCAN, To be held in franc-alleu roturier, MILLS :— See Water Power. MINORS, Opposition by tutors, &c., MONIES ARISING FROM REDEMPTION OF SEIGNIORIAL RIGHTS, Opposition by persons having claims on any seigniory, to distribution of, MORTMAIN, LANDS HELD IN, Rei\tc3 ranstituces thereon nay be redeemed, " Declared to be held en /ran -alleu roturier, " MUNICIPAL LOAN FUND, Money may be raised by Censitaircs for redemption of the whole of the rentes in any seigniory, on the credit oO " MUTATION FINES, To cease from and after deposit of scliedule for seigniory, None to accrue after the passing of the amending Act, . . Provision for compensating the Seigniors, NOTARIES, Repertories may bo inspected by Commissioners, Penalty for refusal to allow inspection, NOTICE, Ry Commissioner, before commencing a schedule,, vol. A, 7a, 37a Of public mteting in a seignior]/, for appointment of experts, vol. A, 9a Of appointment of a third expert,. " " J« Of schedule being ready for inspection. Of deposit of schedule Oftheiilin " OATH, To be taken by Commissioners, - - - " " - t!iliution when tliere is ojiposition, *' '• 24 it Sei;,'nioiial rights and rentes preserved in sa-les under (execution " " 27 a Opposition for preservation to bo null, . " ** 28rt ORDNANCE SEIGNIORIFS, Act not to apply thereto, " " 29 « PENALTIES, For obstrnctinn^ Commissioner, vol. A, 39a, 40 a For refusing to givo evidence, vol. A, 8 a PERTHUIS, To be held cnfranc-olleu rolurxer, '* B, 2 j PROVISIONS, Average annual value of, *' A, 5 (t QUESTIONS, To be sulunitted to the Judges by the Atlomcy General, " " 15 a To be publishi'd, " « l\] a To be taken into consideration and decided as soon as possible, " " 16(« Seigniors may be lieard thereon by counsel, and may file nouiiter-cpiestions, <' " 16 a Censihiircs may do likewise, " " Ifia Copies of counter-questions to be furnished to all parties, " " 17 a Mode of hearing, " " 11 a Form of decisions, " " 17 a ElTect of decisions, " " 18a Separate decisions may be rendered upon particular ([uestions, " « 18 o Appeals allowed wlien there is a dissentient Judge,. .. . " " 18 a Ecjual division of Court on, " B, 7y QUINT, Release from, '< A, 14a Yearly revenue of, to be ascertained, " B, 5/ RECEIVER GENERAL, Triplicate of each schedule to be transmitted to 1dm,. . . " A, 13 a To pay to each Seignior his share of the Special Fund, with interest, on receipt of a certificate from Clerk of Superior Court that tlijre is no opposition to the pay- ment of the redemption monies, " " 21a To pay tlie same to the Clerk of the Superior Court wlien iheie is an opposition (except the interest, wluch is to be paid to the Seignior,) " " 24 a ti; INDEX. MONIES, rol. A, 23 a " « 23^/ « " 23 a " " 24 a (( it 07 ri '< << 28 a 29(1 ,390,40 a A. A, 8 a " B, 3 J '< A, 5 a « a 15 a ItJfi 16 «/i7i A, Via •' Via " 3> to AVhere CorninissioiKMS shall sit, vol A]i/iliai Hint for ririmon of m/ndulc, " J^rorri'dinirx on nppHcuiion, " Pt^riod for ri'visioii limited, " rrocccilings when revision is demanded, ST. SULPICE SEMINARY, Act not to apply to seigniories held by, " A, 29« SALES UNDER EXECUTION :— See Execution. SCHEDULE, To bo prepared for each seigniory, " " .3 a Contents of, vol. A, 3 a, Xd Public notion before commencing the same, vol. A, 7 a To be open for inspection when completed, *' Correction of errors, " Not to be completed nntil all questions in dispute regard- ing rights ot Seigniors are deciiled, ** Court for revision of schedules to bo formed by selection of four Commissioners, " No revision to be made except upon duo applica- tion, vol. A, Via ; vol. B, !2 j Proceedings thereon, "" VZa\ " " \\j To be deposited in triplicato, vol. A, 13 a Clerk of the Superior Court to give extracts, &c., '* " 13 a If all have not been deposited by If^t January, 185(5,.... " *< For the lands in Sherrington, may be deposited without wailing for decision of Special Court, ** •' Governor may direct schedules to be deposited for Crown seigniories and Jesuits' estates,. *' Not to be impeached for informality, . " SEIGNIOR, Definition of the word " Seignior," ** Debts due by, to the Crown, ** SEIGNIOR DOiVIINANT, Value of his rights to bo ascertained, " A, 3 « R, 2 3 J J A, 11 a « 11 a a <( B, 36 a 37 a 38 a 39 a 30 a 7; I ;i!. iM)i:\'. SEKINIOR DOMINANT, Amnmit of Special Fund apportioiifn' to iacli suJL'niory 8liall Ix-'lorii,' to tho Seignior, siil.ui-t to the right ot ^^^ SfiL'tiior Dinniniinl, v" • '^» **'* Debts iliio liy, totho Ciowa, "> '" SEKINIOUY, Delinition of, '^ ^> ^l'\ Houndaiies of, "' ^ ^ siikuiun(;ton, LaiKlsin, vol. A, '29a, 37a SUPKKIOR COURT, Triplicate of each schedulo to Im .lepositeil in ollice of the .li.trict, vol. A, 3a Clerk to ^dve extracts, &c., " " ^'>" TITLES OF ACTS, Actofi85i, ;; ;; \\^ Amcndin- Act of 1855, ' ' '« " 1856, " »» ■'; TITLES OF LAND.S, In dcterminin;,' diarizes on each lot, Commissioner to be "nided liv the title of the owner, " -■*> 1" TUTORS, CURATORS, &c., Opposition by, ~ ' " Responsible lur neglect, ;■;•" May elluct the redemption of nmes conslituces, '^ ^^ -ia If there be no opposition in force, " " '^J "■ Redemplion allowed, •^•^<' VALUATION, Of Sei-nior's ri-hts, '/, \[ ? 'J Of Crown ri-hts, -^^ Of rii^hts of any other Sei;,nnor Dominanl, ^^ ^ , '}"■ Of toTal ri^jhts on each lot, ^^ ^\ •; "^ Avera-re ainiual value of provisions, ,' V r' i o 'i'* (Jeneral rules for, vol. A, 5 a ; vol. ., j Ranality, " i^ , / r>.i ;'i,«= vo . A, ba Oilier rii^hts, ' „ May be made by e.xperts in certain cases, -"t WATER POWER, Provision concerning tho takinir of land required for using water power by ~^the Seignior ; or by the owner ol adjoining land, « '■t^,'