,%, ^. IMAGE EVALUATrON TEST TARGET (MT-3) .^' ^ I ^ 1.0 I.I 1^ Ui KS u ,. 112 lAO M 2.2 M 1.25 =y= IJ-6 -^ 6" - ^ V] %' V^ r .vSfev 7. ^c*l >^^' >' >^ ^ ^^ '^ Phofrigraphic Sciences Corporation iient la mAthode. 1 2 3 1 2 3 4 5 6 h itS'-^"*"- '% AM1RIC4N HISTO SSOCIATIOK. THE DBOIT BE BANALITlS DURJNO THB PBEN€H RfiOIME IN CANADA. W. BENNETT MUOTO, HAKVARB UNIVKBSITV. VII.-THE DROIT J)E EANALITE DURING THE FRENCH REGIME IN CANADA. By W. BENNETT MUNRO, Ph. D., HARVARD UNIVERSITY. 205 / 9oO ^ r ) THE DROIT DE BANALITE DURING THE FRENCH REGIME IN CANADA. By W. BKNNK-rr Miinro. Among th,> many oppressive i„,.i,l,.„t., which niarkod tho land-tenure system ,.f the old rcgin.e in Fnu,.., not the last importon were the '-tenal rights" (droits de bana i e or the privdeges enjoyed by the seigniors ol exclnsively eo trolbng certa,,, of the instrnments of production within their totfi";:"!::;":' '"■"' "■■"'"' «'™^'"-''o-es, a„d so on, Whether in their origin these banal rights were the result of unlawful usurpations on the part of the seigniors-adva tages wrested by strength from weakness-of wh her th J simply grew out of the mutual wants and interests of the parties concerned, has never been satisfiu-torilv determ ned- their existence as legal rights was recognised, how™ i ,' only eleven out of the large numiier of French coutun;" ;rbrn!lit/"'""'"T': f"'"' •'"^"' "P°" «>« ^l>ole subjen ■!JZ' : ?'■ •^P"'''' °* """"^l rights only as possible "serv- itudes arising as the result of mutual agreements made between seignior and dependent. Notwithstanding this, mention may be found of the droit de banalit,! in the etablessments and ordonnances as far b^k nturrrefh";? '"^ "''"-'''"* »"" "y '^« -™"'-^h nte« • th^ beeoi„e.-to use the words of Champion- nieie - the most terrible abuse and the most general exaction of the whole seigniorial svstem." Uki most of the other ,seigni(")riul exactions, the banal ,.: u^ • 1 --g.-iwixai i-AHctions, me oanal rights varied very greatly, both in nature and extent in d ? f;;ron^parts expressly stipulated for in the title deeds of his subcrrants, and ill no case could a windmill be deemed a )msis for the enforc('meiit of banal rijr|,ts. As the former of these limita- tions did not appear in the Coutume do Paris before 1680, but was inserted during the coursi^ of the revision in that year, it would seem as if the policy of the French (Govern- ment was to place more resti-ictions upon the exercise of the rights of l>ar:ility by the stujjniors. Jn ('anuda, on the other hand, not only were these restric- tions disrejriirded, but, s we shall find, the French Crown and its re})resent'itives took active^ measures to estal)lish and enforce the l)anal obligations in all parts of the colony. And, pai adoxical as it may appear, the chief burden of this en fora>ment fell not upon the cetr-;itaires, but upon the seigniors. During the period of almost half a century (1627-1()63), throughout which the colony was in the hands of the Com- pany of One Hundred Associates, very few of the sixty-odd grants (mi fief were taken in hand by the grantees. The ob- jecc of the company was, primarily, to till its cofiers with the profits of the fur trade, and the directors paid very little attention to the matter of colonial settlement or organization. On a few of the seigniories, however, mills were built and used by the somewhat sparse population, under what condi- tions of payment can not be definitely ascerfoiined. In 1652 wo find trace of the first ofiicial r(>gulation concerning the management of the seigniorial mills in an ordinance of the governor, M. de Lauzon. This ordinance was, apparently, never enregistered, as no copy of it can be found, but mention is made of it some tifteen years later in an ordinance issued by the intendant and council reiterating its purport and ordering its enforcement. This later ordinance ' (March 28, 1067) goes on to declare that — Considering that it has been represented to us by the attorney-general that several abuses are being conimitted by the millers of this country with respect to the grinding of grain, and to remedy which it would seem fit to reiterate the ordinance made in 1(552 by the late governor of this country, j\I. de Lauzon, and, reviewing the said ordinance, the council, adjudicating thereon, hath ordained and doth ordain that it shall have its full and entire force, saving the right of adding to it in future should necessity arise. 1 Edits et Ordoiinancea Connernant le Canada, II, p. 30. HIST 1)9. VOIi 1 -14 210 AMERICAN HISTORICAL ASSOCIATION. Tlip ordinaiK'o then proceeds to provide that " the damages siitiered by tenants carrying their grain to ])e ground"' at the seisrniorial mills "shall be had from the owners of the said mills, saving to these the right of deducting the same from the wages of their paid millers/'' These appear to have been the first ordinances relative to the matiagement of banal mills, Init others were not long in following. On June 20 of the same year (16(!7) an ordinance ^ of the intendant and council v/as issued in response to a petition presented some few days previously on behalf of " most of the proprietors of mills in the colony,'" wherein it was stated * that the mills of this col- ony cost double or treble those of France, as well for their construction, maintenance, and repair as for the wages and l>oard of the millers," in consequence of which the petitioners declare that they might with justice ask "that the toll he proportioned to the above expenses and conse(iuently be fixed above the usual toll in France." Notwithstanding this the petitioning seigniors went on to say that th(\v were satisfied with the current rate of toll and as'v for the issue of an ordi- nance fixing this customary rate for general use in the colony. In accordance with the prayer of this petition, the ordi- nance of June 20, 1667, ordered the rate of toll to be fixed at one-fourteenth of the grain ground. Furthermore, it em- powered the Government officials " to go from time to time from place to place to gauge the measures used in the i lills, and to find out generally Avhat is going on," and declared that where seigniors had leased their mills the censitaires should have recourse for damages, "in the event of malv(>rsation by the millers," upon the lessee and not upon the proprietor. Finally, in order to guard both against fraud on the part of the milloi' and the preferring of groundless accusations by the censitaire, the ordinance required tha "'owners of grain taken to be ground should be held to have their grain weighed, in default of which their complaints should not be heard."" This practice of administrative interference in the management of seigniorial mills was not peculiar to the colony; it had been common in France, where it was ^'ustitied on the grounds of public polic}'." 1 Ed'ts vt ordonnances Concornant k' Cnnacliv, II, i). 89. -KegurdiiiK lliis Ih'iirion do I'misfy ob'^ervi's (Dissertations Fi-otlales. Paris, 1789, p. •Jl"), soc. llti: " HiU aticivt! tlu' authority of tlu' soigiiiors tlii'rc is mi autliority of a higher THE DROIT 1)E BAN A LITE. 211 In France the amount of toll exacted for the jjrinding of corn at the banal mills varied in diti'erent parts of the King- dom. In the Coutume de Paris it was fixed at one-fourteenth, and the effect of the ordinance of KWu was therefore simply to specifically apph' this rate to the colony. The remunera- tion of the seigniorial mill owner, ])eing fixed at a definite per- centage of the grist, varied, ol)viously, with variations in the price of grain, which latter, especially during the closing period of the French regime, were very marked. During the period of thirty years from 1729 to 1759 the price of wheat ranged all the way from 2 francs to 10 francs per minot, or measure of about three French bushels. But despite the assertions of the seigniors in the petition of 1067 that they would be satisfied with the usual rate of toll, there seem to have been some attempts on the part of certain of their number to exact more than the legal rate. In the lengthy code of "Police regulations," issued by the intendant some years later (1H76), a clause was inserted ' forbidding all millers from ""causing more than one-fourteenth to be paid for the toll of grist." Likewise, the millers of each seigniory are forbidden to compete with one another (le chasseur les uns sur les autres), as e. g., by soliciting grist from the inhabitants of seigniories other than their own. But the number of mills increased very slowly, owing, doubtless, to the poverty of the seigniors, most of whom could ill afford the means necessary to build the mills and to im- port from France the needed machinery. The stones were quarried in the colon}' ; all else had to be imported. The toll received, except in the case of the more populous se-^'niories, often scarcelv sufficed to pay the wages of a miller and the result was that in many of the seigniories no mills were erected. This state of affairs was soon brought to the notice of the F"rench King, and the latter, in keeping with his usual zeal for the rapid development of the colony and in consonance with his unlimited faith in the efficacy of royal edicts as the general panacea for tardy industrial progress, at once set orrtor to which behjiigs all that can interest imhlic i.olicy, * * * and \vhic'h has tJie right to restrict tlie lilierty ot eaeii imiu idual lor tlic good of tlie greatest niinit)er. 'I'lu! mills intendeglect to erect the banal mills necessary for the subsistence of the inhabit- ants of the country," and, "in order to remedy an evil so prejudicial to colonial welfare," he proceeded to ordain that "all seigniors who are holders of fiefs within the territory of New France should be bound to erect their banal mills therein within the space of one year after the publication of this decree,^ in default of their doing which "his majesty per- nuts all individuals, of whatever condition and rank they may be to erect such mill;-,, granting to them in that respect the right of banality, and prohibits any persons from disturbing them in the right thereof." This edict, the provisions of which were intended to stir up tli.. unprogressive seigniors was duly registered by the superior council at Quel)ec,^ on Octo])er 21, 1686, and was ordered to be promulgated at the necessary and accustomed places. Strange to say, this required publication did not take place till some twenty years later During the period 1686-1707 the seigniors continued to l)uild nulls or not, as they found it profitable to do so or not to do so In the latter case, however, they invariablv took care to insert in their contracts of concession the obligation on the part of the grantees to carry their grain to the seigniorial mill " when- ever such shall l)e erected within the seigniory." The long delay m the puldication of the arrSt of 1686 is, in all proba bility correctly explained by M. Raudot, intendant of Canada in a dispatch to the French minister, dated November 10 1<07.''' ' He writes: I 8houl.lthink, My Lord, that it would be necensarv * * * that thp exch,..ve right ..f grinding should be pre.erve.l to the seignior, on eon.li ^on of their bmldnig a null on their seigniories within a year, failing in u.h then, right should be forfeited, and the iuhabitants^oild not b obhged when one was bull, to have their <.oru ground there; otherwise, My Lord, they w.li never bejnduced to er^ nulls, from the privation oi 'Ed.etOrd.,!, p.2")r). - -Ibid., p. 'jfrti. " THE DROIT 1)E BANALITE. 213 which the inhahitantH suffer greatly, being unable, for want of Mieans, to av^il theniHelveH of the fav-.r whi(-h his umjeHty has granted them by per- mitting them to erect mills in case the seigniors do not do so. The dispatch continues: This was granted them in the year 1680 by an arret which was registered by the superior council of this country, but not having ])een sent to the subordmate jurisdictions to be promulgated, the inhabitants have not hith- erto profited by this favor, and it is only since mv arrival here that the decree lias been pul)lished, the fac;t of its nonpublication having only come to my knowledge in the course of a lawsuit, recently determined, in which the arret was produced, but one of the parties was not able to take advan- tage of It because it had never been promulgated. And he goes on to say: The fault can only be attributed to the Sieur d'Auteuil, whose dutv as attorney-general is to transmit such decrees to the subordinate courts but It was his interest as a seignior, as also that of some of the other coun- cilors who are also seignior,.', not to make known this decree. Raiidot proceeded, on the discovery of this nonpublication of the royal arret to issue an ordinance ordering its publication without delay/ From the foregoing may be seen plainly the desire of Louis XIV to make the droit de banalite obligatory in all parts of the colony, in the interest, however, not of the seignior, but of the habitant, together with the equally strong disinclination of many of the seigniors to conform to the roval will. By the Coutume de Paris (article 71) no seignior was allowed to exact the droit de banalite from his dependents unless he had stipulated for such right in his deeds of concession. In the colony this limitation was not observed. Wherevei a seigniorial mill was erected the censitaires w(M-e recjmred to carry their grain thithiM' to })e ground whether this condition had been imposed upon them by their title deeds or not, and wherever the seignior met with refusal the aid of the intend- ant^ was invoked. For exampl(>, some of the ceiisitaires of I Ed. ot Ord., II, 145-150. The orders „f the French Government relath^T(^lonial n7- fairs were .•..mmiuneat,.,! lu the ollirials of the ...,lon.v in lu-., wavs: (1) Bv arrets or edicts d..s,mtched to the intendant, and .vgistered in the re,.onls of the superio; ..onncil at Qm-- be.s which corresponded to the parHament of Paris in France J-his conneil consisted of the Kovertior. intendant, and hishops of the colony ex ollicio, t.-.-ther with ..ertain other omciHls vsenenUly drawn from ilie colonial (...piiiaiion) ai)poinieeds to that effect shall carry their grain to such mills/' Furthermoi-e, this ordinance forbade the proprietors of mills to induce eensitaires of other seignories to < .me to their mills under penalty of tine, together with the contiseation of the grain and the \-ehicles carrying it. The issue of this ordinance is but one out of the many instances which mark the constant attempt on the part of the central power to adapt the seigni- orial system to the changed customs under which it had been established. Every seigniory did not possess an available water power, and to deny the extension of the banal right to windmills would have given most of the seigniors a valid i " 1 Ed. etOrd., II, 448-449. »Ibid. 11,62. THE DROIT DE BANALITEl. 215 i " ;. excuse for neglocting to build thoir mills whenever they found such a course prc^fitiihle, and would have thus deprived the censitaires of what was a convenience rather than a burden. There was, however, one disadvantage concerning the wind- mill—the power was very unreliable. The habitants ^ br ing ing their grist to the seigniorial windmill often found it nec- essary to lose many valuable hours waiting for the breeze to blow. A clause in the aforementioned ordinance therefore provided that if the windmill of their own seigniory could not grind their grain within the space of forty-eight hours after it had been brought thither, the habitants should have full liberty to take their grist elsewhere. It will be seen that by the early years of the eighteenth cen- tury the banal right in Canada had differentiated itself in three ways from that existent in France under the custom of Paris. 1. The right could be enforced by the seigniors even although they had not stipulated for it in their contracts of concession. 2. All mills, whether driven by wind power or water power, could be made the basis for the exercise and enforcement of the banality. 3. Any seignior who failed to Iniild a mill within the limits of his seigniory within a given time lost all claim to the right, the latter becoming the propei-ty of anyone who was willing to proceed with the erection of the mill. The arret of 1707 was not allowed, like many others of its kind, to become a dead letter. Within a few months after its publication the intendant showed that he was in earnest by pronouncing the forfeiture of the right in the case of the seignior of ]VIille Isles. "All the inhabitants of the seigniory of Mille Isles," the decree of forfeiture recites, '"' have caused the seignior Dupre,*^ proprietor of the said seigniory, to come before us that he may be ordered to build a mill for them, or, if he do not choose to do so, to consent that they should be allowed to build one for thiMuselves, in which case they should be dis- charged from their banal obligation and allowed to utilize the right for their own benelit."^' The seignior having admitted ' The Froiu'li-Ciiiuuliiui iK'usiint iilwavs sniiniiHl the terms ceiisilnire or nitnrier. Ho invariably s])oke of himself as "the hahituiit.'' 2This is probably a misprint for Diigiie or Diijjuay, who was seignior at this time. (See Titr(!'s fles Seigiieuries, I, p. 59. ) ^Judgment of 14 June, 1707, Ed.et Onl., II, i:27. In 1720 the arret of 1707 was ordered to be enregistered, published, and enforeed in Acadia as well as in "Canada," Ed.etOrd., II. 167. 21 « AMERICAN HISTOKICAL ASSOCIATION. his inability to proceed with the erection of a mill, the jud^r- mcnt proceeded to ''p(>rniit the said hahitanl.^ to erect a mill in such part of the seigniory as they shall deem tit, and by so doing to be discharged from the obligation of banality to the seignior forever, being allowed to exact it for their own advantage." Here we have, therefore, under a seigniorial system, the somewhat unusual spectacle of a group o*f censi- taires being permitted to exercise seigniorial rights over themselves.* In the same month a somewhat similar judg- ment was issued against the seignior of Varennes, while others followed from time to time during the course of the next few years. After Kaudot's tenure of the intendancy had expired, however, the enforcement of the arret of 1707* became more lax, and there can be no doubt that many seigniors neither built their mills nor were deprived of their rights. Subsequent intendants devoted their attention rather to the reformation of abuses which had sprung up in connection with seigniorial mills already in operation. In 1715 a some- what lengthy code of regulations'"^ was framed, providing among^other things 'Hhat the owners of banal mills shall be held * * * to have scales and weights, stamped and marked to weigh the wheat which shall be carried there to be ground and the flour which shall l)e made therefrom." The judges of the royal courts were given power, when this regu-. latioii was found not to have been complied with, to have proper scales and weights put in and arranged at the seignior's expense. =» These judges were, f-.irthermore, instructed to examme the toll measure of each mill and '^to have it made exact and stamped, prohibiting all millers from taking toll with any other measure than that which shall have bcH^n so stamped. " Millers are enjoined to cut the weight of the grain, toll deducted, upon a tally, handing over to the habitants one duplicate half of this, in order that they may \'erify the weight of their flour when it is handed over to them". They are, finally, forbidden, under penalty ^'even of corporal chastisement." to wet the grain brought to them in order to have the flour thereof heavier.* In addition to this general code of regula- tions, ordinances were issued from time to time seeking to 1 C. F. Ashley, Economic History, Vol. I, p. 37. "Ed. etOrd., II, 169. ■'Ibid., Art. 5, ■•Ibid., Art. 9. 'f ) THE DROIT 1)E BANALITE. 217 '1. effect improvemonts in the niachlnery und niiiiuiffement of par- ticular mills, a.id from tho very considorahlo number of these It would seem that the system of s,Moni(,rial flour making was not always wholly satisfactory. For example, in 1714 one of the habitants of the seigniory of Vincelotte, having been brought before the council on a charge of having '^sent his grain to strange mills," urged in defense of his action that he had been obliged to take part of his grain elsewhere than to the mill of his own seigniory, because the latter was '• no good;" that it '• made very l)ad flour," and that ''the miller who worked the mill gave too small return of Hour for grain. " ' The coun- cil declared the defense of the habitant good, and ordered the seignior to have his mill improved— having done which his right would be enforced. From this decision the seignior made ' appeal to the king, but the latter confirmed the action of the council, adding that habitants should be allowed to have their grain ground elsewhere whenever the seigniorial mill should be "stopped in any manner and for any reason whatsoe\er." In 1728 several inhal)itants of the seigniory of Grondines set forth, in a petition to the superior council that "they are compelled to take their grain to the windmill of the seigniory, which is most grievous and pi-e judicial to them inasmuch as the stones only crack up the wheat, both ))ecaiise the mill has been absolutely ruined })y the different persons who have run it heretofore, and because the Sieiir Hamelin, who now runs it (Hamelin was himself the seignior of Grondines), not being a^ miller by trade, simply increases the defects in the flour. "^As it was flour, and not cracked wheat, which the habitants wanted, they asked that experts should be appointed to exanune the mill and to report the state of afl'airs to the council. The seignior being called on for his defense, declared that his mill was " in excellent order;" that while it was true that he was running— or trying to run— the mill himself, this was not his fault, his miller having been called out to do military service; that he was just about to secure the services of a competent flour maker and, Anally, that he invited the appointment of experts who should satisfy them- selves of the truth of his stutements. The council, taking the seignior at his word, ordered a visit to the mill by a board of experts, with what result is not recorded. 1 Titles 1111(1 DociiinciUs, II, 224. "Ed. etOrd. Ill, 241. 218 AMERICAN HISTORICAL ASSOCIATION. In the .same year the ha})itauts of the seigniory of St. Anne de la Parade sent a delegation })efore the authorities at Quebec to complain that the mill of that seigniory was -'entirely out of order;" that "the miller was not only a dishonest man, but was known to the seignior as such," and that the mill was not of sufficient capacity to grind out all the flour which was required for the maintenance of the habitants and their fami- lies. * The inhabitants of the seigniory of Neuville were bet- ter provided for, since there were in the seigniory two banal mills— one a windmill, the other a water-power affair. This double facility appears, however, to have availed them little, for in 1733 they made complaint to the council that the former seldom ran, and the latter turned out defective flour. Further- more, they declared that "when the windmill failed for wind or the water-mill for water the seignioi- kept them hauling their grain back and forward from one mill to the other as often as three times. "^ They asked, among other things, that the seignior be ordered to keep a regular miller, who should live near the mill, and that he should provide "stamped weights of iron instead of stones, the weight whereof is not shown." In this last request is an interesting bit of evidence as to the general equipment of the banal mills of the old reirime. Complaints were sometimes made that seigniorial mills had been erected in places which the habitants found it difficult to reach. In one case the intendant ordered a seignior to have his mill built on the riverside, where it could be reached by boat, or else to have a road built up to it. ^ In another case the same official allowed certain habitants exemption from the banal obligation until their seignior should have opened up a passable road.* In a country where seigniories extended, as they frequently did, over from 200 to 500 square miles, the difficulty of transporting tho grain to the mill was often very serious. As to the choice of a mill site, the seignior was unhampered. If he saw fit to erect it upon land which had been already granted to a habitant, he could obtain a decree from the council reuniting this land to his demesne, the habi- tant being given the privilege of selecting a new concession of similar extent from any portion of the ungranted lands of lEd. etOrd., 11,497. «TU. and Docs., II, 156. 3Ed. etOrd., 11,210. * Perault's Extracts, p. 71. ■ THE DROIT DE BANALITE. 219 J. ■ the seipfniory. In some cascH decrees of this kind were granted. ' In response to repeated complaints that habitants were being put to much inconvenience by having to wait on windmills to start running during calm weather, an ordinance was issued in 1730 giving all persons liberty to take their grain to a water- power mill, if compelled to leave their grist unground at the seigniorial windmill for more than two days.' This provision, which was greatly appreciated by the habitants in general, was issued chiefly through the influence of Giles Hocquart, who with the exception of Jean Talon— the Colbert of New France— was perhaps the most public-spirited as well as the most energetic of the colonial intendants. Hocquart during the course of his regime rigidly obliged seigniors to keep their mills in good repair, going so far as to threaten them with entire deprivation of the banal right in the event of their failure to comply with his demands. ■' In the course of one of his dispatches, Hocquart advised the French Government that the quality of the flour turned out by the banal mills would be materially improved if the grain were only properly cleaned before being ground, but that there were no fanning mills in the colony. The seign- iors, in all probability, deemed it sufficient to build the mills and to run them for the most part at a loss, without provid- ing subsidiary appliances. The French King, however, with his usual zeal for the development of colonial industry, promptly gratified the desire of the intendant by sending out, in 1732, six fanning mills at his own expense. On arrival in the colony, these were distributed, gratis, among six of the most important seignioral mills— those of the seigniories of Sault a la puce. Petit- Pre, Beauport, Point de Levy, St. Nicholas, and St. Famille— and an ordinance * was forthwith issued, compelling the owners of those mills "to have all the wheat of whatsoever quality sent to them passed and fanned before its conversion into flour." It was further ordered that the millers should take their toll merely upon the cleaned and fanned grain and not upon the whole, but that in compensa- tion xGv tula tiiC milicrs should be allowed to exact 6 deniers er mi not on the whole grist, in addition to the usual toll of 1 Ed. et Ord., II, 466. « Ibid., 340. sjbid., II, 519. < Ibid., 352. 220 AMKRK^AN HISTORICAL AHHOCIATION. All "Uiillinjr,s" vv(m-c to be j.Mvon back to tho ono- fourteenth, habitant. During the course of the next year Hve more fanninjr ,„ills were Her t out and distributed amonjr the seignioral nulls in the district of Montreal,' the King promising to ke(>p up the good work but failing thereafter to do 80. T\w seigniors themselves showed very little industrial enterpris.' at any time, and this may be accounted for partly by the comparative pov- erty of the greater portion of their tuimlier, and partly, too, by the fact that many of theni were retired military and ad- ministrative officials with little taste for industrial life. Absenteeism, one of the curses of the seigniorial system in France, was never an evil in Canada, and the writer who declares that "the peasants looked upon thei)- lords in the light of taxpayers wringing money out of labor to spend it in luxury in Quebec and MontreaP'^ has attributed to the co- lonial seigniorial system a features which it fortunately never inherited from the motherland. The great majoi-itv of the Canadian seigniors shared the rough evervday life of their pioneer dependents— very frequently they \iu2nl)ered among their censitaires men better endowed with worldly goods than themselves— and the number of seigniors whose means per- mitted luxurious idleness in the towns could b(» counted upon the fingers of one hand.'^ In France, again, the seignior was almost invariably a member of the nobless-; in the colony this was rarely the case, with the result that there was no legal bar to his engaging in manual work, and the colonial prototype of the haughty seigneui- who loungc^l in the corri- dors of Versailles might not infrequently be found crushing grain in his little mill on the banks of the St. Maurice. The seigniorial mills were usually constructed of timber, but in not a few cases they were built of stone, many of the seigniors expressly reserving in the titles of their subgrants the right to take materials for this purpose from the conceded lands without compensation. In a few cases the habitants were obliged to render their corvee,^ in preparing the materials and even in erecting the mills, but this practice was never sanctioned by the a uthorities. The stone mills were usually two to the mill of the seigniory of Terrebonne. 2 Watson, Constitutional History of Canndii, p. 12. »C. F. Suite, La Tenure Seigueuriale in Revue Cunadionne (August, 1882). A THE DROIT DE BANALITK. 221 * .^^ loopholod ill ordvA' to bo availahio tin places of refuge and deferiHe in the event of Indian attacks, and the mill of the .seigniory of St. Sulpice at Montreal was one of the chief strongholds of the town. The religious orders Vy-^N in fact able t(. build much betfr mills upon their various seigniories than were the individual lay seigniors, and these they almost invariably fortified, for during the greater part of the period of h rench possession no part of Canada was safe from an Inxjuois assault. Three (juestions have be«.n much mooted in regard to the extent of the droit de fianalite in the colony. The first of these was as to whether all the grain produced by the censi- taires was subject to the })anal obligation, or only such portion of It as was required for the consumption of the producer and his family. Some of the seigniors took the fcu-mer view but the authoritiivs thought ditferentlv and ordinances were refused to seigniors who wished thereby to compel hal)itants to bring all their grain to the seigniorial mills. On the other hand, the intendant uovvr refused, in default of good reason to the contrary, to enforce the obligation in regard to grain used by the habitant and his family. » The action of' the authorities in this regard has been upheld by the most author- itative writers upon the subje^^t of French-Canadian civil law,^ and would seem to be borne out by the wording of the long-suppressed arrC't of 1086, which speaks of the neglect of the seigniors to build the banal mills "necessary for the sub- sistence of the inhabitants," a feature which might be taken to show that in the opinion of the French Crown the primary object of the system of banal mills in the colonv was to insure the grinding of grain for home consumption. " The question, however, was never of very great importance, for the hab- itants were generally able to produce but little grain more than - sufficient for their own use. It was by no means an uncommon occurrence to import flour from France for the use of the urban population of the colony. Then there was the more important question as to whether the banal obligation extended to all grain intended by the habitant for his own use, or the wheat alone. As to the ex- tent onhe^ght in France there is some difference of opinion 1 Cf. Case of the Seignior of Ohninplain, Ed. et Old., II 452 2 Cugnet. Traite de la loi de.s fief.s, p. 36. 222 AMERICAN H1ST()RI(-AL AflSOCIATION. iimot.^r writ^TH. Iloniio.i d,. Pansov ' affirms that it oxtendod not ()niy to wlioat, but to Imilry, buckwh.'at, and all otiioi- j,M-ain.s. I>ni/ait, in Iuh doi'isions,- <|uote.s a judjrnuuit of tho pjirliainont of lin'tii in whi rijrht usually extended to wheat ordy.' No doubt the extent of the obiijration varied in different parts of the country, but on the whole tho genj'ral weight of opinion seems to be in favor of the view that it was properly applica})le to wheat alone.< In Canada, on the contrary, the obligation was jrcMierally understood to have been applicable to grain of all kinds. The expression made use of in the arrets and ordinances was invariably "porter moudre leur grains,"'' and tht^ term "grains" can scarcely be construed to have meant cereals of any one kind. The same expression is used in the titles of lands gi-ant(>d en censive hy the Crown in the vicinity of Detroit, Mich.,*'' and it is also the wording usually employed by the various seigniors in their titles of concession. • In some few of the latter cases, however, the expression "porter moudre leur bled" occurs,' iii which case the intention would seem to have been to attach the obligation to wheat alone. These cases were very excep- tional, and, in general, the faci that the intendant was appar- ently only once^ called upon to decide the question in favor of the extension would go to show that the extension of the right to grain of all kinds was not opposed by the habitant. Finally there was a question as to whether a censitaire pur- chasing grain outside the limits of the seigniory and having it brought within was or was not bou i to havu it ground at the seigniorial mill. Henrion de Pansey, on this point, quotes an arret de Goneose, in which it is authoritively stated that all grain, whether grown within or brought within a seign- iory, was subject to the banal right." There is no colonial 1 Dissertationes Fcodales I, Vo, Banality, p. 9. ^Nouveau Denizart, p. 648, sec. 5. ■'Le Febre, III, 16H, 173-17.'-); Rousseau de la Combe, II, 67. 4 Cf^ Opinion of .ludgeCaron (Reports of the Special Seigniorial Abolition Court 18M) Vol. a, p. 38d. "Cf. Arret of 167.^ ordinances of 10th June, 1728, and 23d July, 1742, Ed. et Ord Vol 11 oTitrosdesSeigneuries, I, pj.. 235, 2.18. ' ' ' Ed. et Ord, II, 323. 8 Henrion de Pansey, op. cit., I, pp. 9-10. THE DROIT I)R HANALIT^. 223 arrot or ordinunco Jjearin^r dim-tly on tho point; but thr understnnd.M^r.socnistolmvchoon that vvhrn jrmin was both purchased and ^r.-onnd without tho s.Mu-nioPv, th.. tlour nilirht bo brou«-ht honu' and used without tho n.M(..ssity of any toll b«Mn«- paid to fhe seignior within whos.. Ii,.f i| was brought But whoro the grain was pur.hased outside the seigniory and brought home unground, it ranked on tho same footing as gram grown within the seignio.y. The general tendency was to look on the right of banality as a personal right It was not beeause the grain had been grown within the seign- iory that It was subject to the obligation, but rath.-r because the habitar.t owning it lived within the seigniorial jurisdic- tion. Ihus gram purchased within th«> limits ..f a seigniory by a person without was subject to the banal , i.Jijration not in the seigniory within which the grain was bought, but in the seigniory in which he was a censitaire. The right of banality carried with it the right, not only to prevent the erection of other than seigniorial mills within the seigniory, but even to compel the demolition of such after they had been erected. Instances are on record of the enforcement of these latter rights by ordinances of theinten- dant proceedings which were attencted with considerable Hardship. For example, one of the inhabitants of the seign- iory of Lauzon was, in 1698,giA'en permission by the seignior to erect a mill, there being no banal mill in operation bhortly afterwards the seigniory was sold and the new seignior at once ordered the mill closed, and on the refusal of the owner to comply, an intendant's ordinance was procured to enforce compliance.' Similarly the brethren of the hospital (I^reres Charron) at Montreal had erected a small windmill to supply their own wants. This mill was, however, within the limits of the seigniory })elonging to the Seminary of Sulpice and the latter applied for permission to have the mill demol- ished. The intendant ordered this to be done in case the mill should be found to be infringing upon the seigniorial rights of the seminary.^ It will be seen, therefore, that on the whole the banal obli- gatiou did "otjn^e period of the French regime bear very 1 Ed. et Ord., II, 145. ~ •-■This arret i.. not printed. Its uuthontieity is vouclied for bv Chief Justice Sir r H Lafontalne (in his judgment of the special court, 18M, p. 334). ' 224 AMERICAN HISTORICAL ASSOCIATION. heavily upon the habitant. In the majority of cases the seignior was the loser. With the passing of the colony into the hands of Great Britain, however, this state of affairs was somewhat changed. By the treaty of Paris the seigniors were guaranteed full possession of their ancient privileges, and with the great growth in population which succeeded the change of colonial ownership these rights, not the least important of which was the droit de banalite, became much more valuable. In very many of the seigniories the banal mill was no longer capable of doing all the work required and it became the cus- tom of the seigniors to allow the habitants to take their grist elsewhere upon the payment of a tixed sum,' To this neces- sity of paying two tolls the habitants soon began to stren- uously object, but the newly established English courts in the cases which came before them invariably upheld the claims of the seigniors. Prominent among the decisions in this regard was that given in the case of Monk v. Morris,'^ in which the court distinctly declared that the droit de })analite vixisted in full force under the new regime; that it was enforce- able even without the possession of specific title: that it applied to grain of all Kinds; that seigniors could compel the demoli- tion of any nonseigniorial mills erected within the limits of their seigniories. The seigniors in these matters had custom on their side, and precedents in the eyes of the English jud'^es wore all-powerful. In the eyes of the French intendants'^of the old regime precedents had count(>d for almost notning when the course marked out by them conflicted with what was deemed the general weal. The legal result of the conquest was thus to deprive the habitant, of one of their chief sources of protection. During the whole of the first half of the present century the habitants of French Canada kept clamoring for the abolition of the seigniorial system with its various incidents, of which the droit de banalite now formed one of the most <)bjectional)le, and in 1854 their ends were obtained by the passing of the "seigniorial tenures abolition act,"'' by the terms of which all 1 It is interesting to note that in Enghind, wiicrc tlio droit do himalito existed to some extent for ti eonsidemhle time, it was frc(iueiitl.v tlie praetiee of the townsmen within seigniorial iurisdietiuns to obtain exemption innii its uxficisi- bv iiic payment of a sum in eommuUition. In tliis, however, they were not always sneeessfnl, as, e.g., tlie ea.se of the men of St. Albans (Cunningham, Growth of Knglish Industry and Commeree, Vol. I), who had not obtained exemption as lute as 1381. 23 Lower Canada Reports, pp. 17 el seq. iln Viet.,C, III. THE DROIT DE BANALITE. 225 lands held on lief, en arriere-fief, en censive, and en roturier were converted into free and common socage holdings, due compensation being awarded to the seigniors, partly in the form ot constituted rents upon the land and partly in funds ot'lt' ""f ■ U-T7- ^^' ^^"^«*^^"^ regarding the extent rU\tl\ : '^' '"'^'""^'^^ ^'^^^^^^ compensation was retell ed to a special court composed of all the iudjres of the superior courts/ In regard to the right of banality this couit decided that while, according to the custom of Paris, this obligation was a contractual and not a prescriptive one the arre ot 1086 had abrogated this rule and made the droit de banaJite a gen(^ral right incidental to all grants en fief The court, moreover decided that the banal right extended to grist mills alone and did not apply to works (usines) of other kinds- that It apphed only to suc-h grai.i as was used bv the habitant' and that lands which had been granted within th(^. seigniories en tranc aleu^ were not subject to the obligation. Seigniors who had erected and operated mills were, adjudged entitled to compensation, but those who had not done so prior to 1854 were deemed by the court to have forfeited any right to indemnity The act of 1854 provided that expert valuators should visit all the seigniories and should ^^ estimate the probable decrease (,f any) in the net yearly income of the seignior resulting from his loss of his right of banality "3 taking into account the foregoing conclusions of the court- the sum so estimated to be apportioned upon the gmnted Imds ot the seigniory in proportion to their extent. A larP-e sum was also set aside from the public treasury for the reduction ot the sums so apportioned. Thus ended the droit de banality in Canada. There was however, another species of banal right which, though bv no means as important in the economic history of New France calls for a passing notice. This was the droit de fours banalitc' or right ot ov(m banality. By the Coutume de Paris * the rij^hts ot oven and mill banality had been placed upon a similar ba ,'. tliat IS, a seignior could compel his censitaires to carry their rtough to ^seigniorial oven to be baked only if he had ' Doc-HntiK d.-s Trihunaux, 1851, Vol. A. ^Some fow froL.lu.l.l RraiU.s had been made by seigniors. •'IS Vict.C.,;i,Sec.Vl,i>ar.3. ■• An. 71. HIST UD, VOL I 15 22<> AMERI(!A>f HISTORICAL ASSOCIATION. oxpivssly stiimliitod for this privilege in his title deeds of coji- eession. As far us I ciin ascertain there was oidy one banal oven ever enn-ted in (^inada, viz, tiiat of M. Aniiot, seij^nior of Vineelotte, but the ()l)lii.iition was inserted in many of the title de(Hls. In Kaudot's dispat<-h of November 10, 1707, to whieh referenee has already l)een made, the writer speaks of the ]-i_irlit of oven ))anality as beino- Iaced, since the habitaticms are very distant from one another), they could not possibly at all seasons carry their dough to it; in winter it wonld be frozen before it got there. He contiiuies: The seigniors, moreover, feel themselves so ill-grounded in claiming this right because of its im{)ossil)ility that they do not exact it now, but they will at some futuni time make use of this stii)ulation to com])el the inhabitants either to submit to it or redeem themselves from it by means of a largi' line; in this Avay will the seigniors have ac(iuired a right from which the inhal)itants derive no benelil. This, my Lord, is what I call getting a title to vex them afterwards.' Replying- to this dispatch, the French minister, M. de Tont- ehartriiin. advised that ^'with respect to the privilege of bak- ing in the seignioral oven, idl that is to be done is to follow and ejiforce the arret of IbSO, by whicli that matter has be(Mi settled/'- The minister was here in error, for th(> arret of 1(I8H had reference wholly to banal mills, and contained not a word about banal ovens. It had sim])ly ordered that seigniors who claimed the right to erect l)an;d mills should erect^them at onee or lose the right. The (jiu'stion of ovens had not yet arisen. This adviee of the minister did not satisfy the colo- nial intendant, who, in r(>ply. jjointed out that what he wanted was the entire suppression of the right of oven banality, the impossibility of enforcing which, he declared, would beconn- apparent when it was considered that "the iidia))itants would have to carry their dough a distance of 2 or 8 leagues in the depth of winter.""' 'Kiuiddtii I'Dlil.'liiiHraiti.KMli N the inhabitants can derive, no benefit hum it, and the Hei-niors have entablished „r wi«h to establish It only to oblige then, to redeem themselves from it by conde- scending to pay in future some heavy charge. It is not so with the banal nnds, the latter bein^ always a benefit to the inhabitants who have not the means of erectinjr mills themselves, svhereas the banal oven is a dis- a.lvanta^e, there bein« not one of them who has not an oven in his own nous(> and as nuich wood as lie wants to heat it.' This convspondonco is interesting as showing- the valuable services rendered l.y the colonial intendanls in the way of aflording- protection against unjust seigniorial exactions a feature which was often sadly lacking in the conduct of the provincial intendants at home. Itserves, further, to showthat in the colony seigniorial rights were viewed by the authorities as resting upon a much more nearly utilitarian basis than in trance. The forebodings of the zealous intendant were, however not well founded, for, with th(>, exception of the single case given, the seigniors do not appear to have exacted either the right of oven l)anality or a money payment in its stead. In France the seignior enjoyed the\-ight to compel his c(mi- sitaires to have their grapes pressed in the seigniorial wine press, and this privilege, especially in the southern part of i^^i-ance, was a very remunerative one. But in the colony there were no grapes and consequently no winepresses, seign- iorial or otluM-wise. It has been th(>, practice of almost all writers on the history of Canada during the French regime to look upon the seign- iorial system as one of the chief causes of tardv "olonial development, and the action of the French (Government in re- gard to the establislmient of seigniorial mills has come in for especial criticism.^^ One writer goes to the other extreme declaring that the banal right remained '^ilmost a dead let- ter;"' but the fact is, as I have endeavored to show, that the iM-ench Government audits colonial representatives souo-ht to develop the system of banal mills in the interests of the poorer habitants and not in the interests of the seigniorial proprietors. From the fact that royal edicts were found iRaurtoti'i I'ontchartniin.OctolM'r 18, ITOS; rorr.(;(''ii., Vol XXVII -Cf Parknmii, olil Rrfrjiin, p ;{,)^,_;j(), Hioldwiii Smith, CanHdii luid the Caiiailiau Question, p. 72 228 AMERICAN HISTORICAL ASSOCIATION. necessary to force the seigniors to avail themselves of their privilege it is very probable that during the greater part of the French regime there would have been no mills at all had the milling interest been left to private enterprise. Profit was to be found not in agriculture nor the manufacture of the products of agriculture, but in the fur trade, and the French Government must, in all justice, be given the credit of having realized that, so long as that was the case, the habitants nuist be given all possil)le facilities for turning their agricultural products to account with the least possible expense to them- selves. So long as the population was sparse the system of banal grinding was, to the habitants, convenient and inexpen- sive. The burden fell upon the seigniors and they, though by no means opulent as a class, were after all best able to bear it. De Tocqueville has aptly remarked that the physiognomy of a government may be best judged in its colonies: When I wish to study the spirit and faults of the achninistration of Louis XIV, I nuist go to Canada. Its deformity is there seen as through a microscope. As regards many features of the administration of Canada during the old regime this remark is undoubtedly true, but as regards the respective attitudes of the Government toward the exercise of the droit de banaUte in Old and in New France, a striking exception to De Toc(iueville's generalization makes itself apparent.