IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I If: IM 2.5 2.0 1.8 1.25 1.4 1.6 < 6" - ► ^^ '3. / /A 'T "// Phpte^phic Sciences Corporation t s? iV 4 ^ ( Additional comments:/ L_l Comment liras supplAmentairas; The outer edges of some pages have been trlmined and some text has been lost. This item is filmed at the reduction ratio checked below/ Cc document est film* au taux de reduction indiqu* ci-dessous. 10X 14X 18X 22X 2«X 30X Z lav 32X ■ The copy filmed here has been reproduced thanks to the generosity of: Metropolitan Toronto Library Canadian History Department L'exemplaire fllm6 fut reprcduit grfice h la g6n6ro8it6 de: Metropolitan Toronto Library Canadian History Department The images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. 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Lorsque le document est trop grand pour Atre reproduit en un seul cliche, il est filmd A partir de Tangle sup4rieur gauche, de gauche A droite, et de haut en bas, en p: anant le nombre d'images nicessaire. Les diagrammes suivants illustrant la mAthode. 1 2 3 1 2 3 4 5 6 I ■J/ V CANADIAN PABLIAMENT. LEGISLATIVK ASSEMBLY, 0- T^ i: I' f^i ■ QUEBEC, MiKCH U, 1853. ft)M^ OF C. DT3NKIN, E«., before the Legislative AsscmMy of Canada, OB ;,,?*eb5f certain Seigniors, petitioner, of the Honorable Honse ajains. a BUI ,i„.rlL b, .be Hon. Mr. Attorney General DBUMMOHD.enmled ■ An Act ,o •« deke rigbt, of Seigniors and Censi.aire, in Lower Canada, and to faod.tat. re- $' deraption thereof." / Mr. Sfeakkr: On behalf of tho potitioners proprietors of Seigniories in I^«^".^^"7^ j"'P: Sear before you to represent certain objecUoi s vhich they feel themselves justilied, in urjri,,^ to Sefurther%rogress of the IM, w Inch has just been called up before this Hon. Htius«. And surely I do not say anything extraordinary %vbe ! JecLethat 1 appear before you with a good deal of embarrassment, and even of regret, i am before a tribunal certainly of an extraoidinai) — certainly also of a very hi-ii character , and 1 iuve to contend against strong prepossession^ ai a powerful interests. I have to speak on beha 1 ot clients, few in number, and "^ fff '"'; y.'f'f'J^"; fluence in the commnnity ; aud 1 fed that 1 labour under difficulties of apt^oulidr character, as we l from the physical impossibility of speaking m tooth the languages used by members oiihiniim. House, as from other causes. 1 should be happv , were 1 able to do so, to address the House in both languages ; but I know that those members whose ;language 1 do not use will be capable of under- standing roe, and 1 trust they will feel that my failure to addre»,s Uiem in their own tongue pro- ^ need, from no disrespect. One other ^ef et also | H have on this occasion ; it is that I am obliged to ilUnd here alone. The season of the year and the ,fe/.ble health of the learned Counsel— greatly my superior— who has been associated with me, have .prevented him from appearing before you, and lobody more thai, myself feels how impossible it .is for me to fill his place. Bui 1 have not felt that ? had a right to decliuo on this account to give my •erviceawhen requin-'d; aud I have not shrunw from my duty, because, though I feel my made- ouacy, I also feel grt^it confidence in the niiriiess of \hi» high tribunal. I believe that its members will 'iiMen patiently, honestly, and impartially, b' ■ cMise of their high position, an.l in npite ot Itie . ■- iignificance of him who speaks ; and I am so cm- ^ . • 1 .1 _/• •»... t...il. /.♦' luhnt I shall pasitionlspeak under the «»"«''"" f'j'^i^^^'!".^ from the Throne, and the reply ot this n»no «b iSse. I know that it is a position to wnr < ..y branch of our Parliament is pledged; th. ' a s admitted, that no rights of property must b-i di regarded, nor legal decisions ol ^'o^rt^ set ^side. Thus speaking Uien-und.r the..e f.^^c lons-iu snite of prepossessions, notwithstanding the mea- se loppoL is introda.:ed by an ">orable Metn- bei of an Administration generally U"Jer«tood^o be stron M ptLible,and xs 1 believe none other ever did study theiii and it is upon this close examination that I found my opinion. Tiiey are arranged not in oilier lou lu m> "J J I? .,.„„, and Enelu* \ CMiseoi lueirnigu i"'""""'! ••• Vi^=« ..,..- found mv opinion, iney are iiiiouH.^« .."-■" —.r aignificance of h.m who s-jcaks ; an. I am so con- ^' .^^^^ "'y„^,- ,,,, . J.j ,he French and Engluk ,hiced,indefMl,ofthe truth ot what 1 shall say, ^j^^^^^^^^J,,,,;, arranged in the same order. .v._» 1 J I i...i;„.,.. I ^h:A\ sopaW 111 vain. \eraiuii» »'<=. • .litR^ninr nffitudvinc vuicea, inucfMi, oi uii- nui.. ^" "•— . Oiat I do uot believe I shall speak m vain Let rae say hero, and say earnestly, that f do no ■taud hero as tho apologist lor the beignioria Tenure. I have nothing to do with its merits, i il have any, nor with its demerits, be Hu-y wiiai they may. I am not here the partizan ol a sys- tfni; Ijut the advocate of individuals whose iiiis- fortune it is that Uieir properly is td a l>«-'C"l'«»r character. As their advocate I 8p.>ak merely ol law; I have to convince you that these my clients lire really propriotori. who have cnle''«crty there were no such holders; j/ they were not proprietors, there were none who eoulil consider themselves bo. I am aware that in ihn statement I run counter to the traditions of hkie curreniiy held — to doctrines which are sup- ported by the authority of men for whom I have the highest respect, and iroin whom 1 differ with Klttclance ; but from whom I dare to differ never- theieis, because 1 be here 1 have looked move elosaly than they have done, or eould 3o, into tbe titles and arrtts which form the evidence on thi» subject. I neither reflect on their ability nor en their integrity — I do not doubt the honesty ot their conclusions ; but yet I see that their do<- trines were well fitted to obtain popular era- dence, because it is always popular to tell tb« debtor that his obligation is not justly incurred. I do see that certain circumstances have giveo currencty to opinions that will be found on exam- ination as destitute of foundation, as any the most absurd of opinions ever vulgarly entertained. If the Seigniors be trustees and not proprietors, this much m^ust be co.. ceded— that their capacity ol tiusti't's must arise either from the incidents of the law in France before their grants ;or from some- thing which took place at the time of making the grants — from soraethinn: done here in the coionjr or by the authorities in France before tbo cession ; or, lastly, from something done sine* the cession oi Canada to the British crown. Chi all these points, I maintain that there is nothing to .show the Seigniors were trustees, and not propri- etors — everything to show that whatever inter- ference was exercised overthtir property was oi an abnormal character. As to th<; tonor of the prior French law interpreting the subycquent grants in Lower Canada 1 will ;i'>t say much, because, though ad- dressing a tribunal, 1 am not addre'ssing profesf- sional lawyers, and oiu^h' not therefore to talk too abstruse law. 1 shall therefore go as liUle as possible into details; but venturing as I do on a position whicb professional men will and muart attack, it is necessary lor me instate some reason* in support of the conclusions to which I come. It would bo a singular thing, corwidering what we know of France, if in the seventeenth and the early part of the eighteenth centuries any idea should have been entertained by the French crown and government of creating a body of aris- tocratic land-holders as mere trustees for the pub- lic, especially for that part of the public wh ck was considered go low as to be unworthy of atten- tion. For ages, indeed down to the great revolu- tion in the 18th century, the doctrine which pre- vailed in France was a doctrine which made noblic trusts a property, certainly not one .vhich made of property a public trust. The Seignior who w ai a Justickr was the absolute owncrof allthe miny and onerous dues, which he collected from the people subject to his con- trol. The functionaries, even, whom he employ- ed to distribute fhe justice — such as it was— which he executed, held their offices for their own ben- efit— bought them and sold them. Trusts ware then so truly property, that the majority of the functionaries of the very crown itself possessed their offices as real estate, which might be sei- zed at law, sold, and the proceeds of the sale dealt with just as though the offices had been so much land. Tbe whole system regarded the throne as worthy ol the very highest respect ; the aristocracy as worthy of a degree f'f respect on'y sometbii'g below that ac- corded to the crown ; and the people as worthy of no respect at all. Was it at a time wlien pub- lic trusts were profjcrty ; when the ..lo u>< only not slaves ; when we must suppose ihit Ine French King, about to settle a new and g.eat country wou d seek to introduce the state o| thing* which prevaikd in u^ old cokiulry— Wft» it, to^ ■\ 1 ., w*k«n ?he King wita here creating Seigniors Haut "". Jiulicters, and rawing some of them to high r«8nk in 'flue peerage ; that he gave the grantees what only IMirported to be property and was really a public trust, and this tritet to be executed in behalf of . . a clas« for whose welfare the king cared no- thing ? The idea id natural to us, because we *88ociate the i>owcr of the crown with the happi- B€8« and welfare of the j>cople governed. We arc M seneiiive that we almost shrink when speuking •fth<,' lower orders, from calling them by that mme ; but this was not so then. Then the peo- ple were emphatically the lower orders, or r?ther they were hardly an "order" at all. This was the state of things here ut the tin-n; of making these grant(3. Now, under the French aystenr), thorfl were four principal modts of holdirt^ real istatf*. It w^is sometimes bcM undvr certain limitati-jns. All who did not hold by the noblest and fre^'st tfi.'iai\!, may be said (il one wa^.ts to us« a m 'di.rn term) to have h';ld in trust ; but not for the be- hoof of those bflo'.v, but for that of Ihoee above them. Some property in "^rance and in l.owtr Canada was hij!(! in franc atcu /toi'c— fiec land held by a noble rear. — held by u noble tenure, of no one. and owin^ no faitii :;or sulij Ttion to any 6up«ri:)r. There w;i3 again aii;)ther kind of pro- • perty held in franc a' eu lotaricr — a properly in- capable of the atlnbu;(.s of nobility, but in oihf'r resppctB frpe. A third description w.ia that beiti in /i',/or seigncuric ; and las;ly there were lands • \tfi\i\enrvtarcoT cncemive. But all these kinds ' ©I property were alike reiil est.tto held by pro- ' prietors. _ I'he holder jn/VaHC iiUk nobU h^ld by the most indepi?iident tenare possible, which ad- niitted of their dispo'sing of their 'and in what- ever way thoy pleiPtnl 'J he holder Mfninc aleu ■ rotuncr hflil as Ir ely ; with tbisi-eseivatiaii only, that he could not grant to mtV-riors retaininir feuditi • Buperiority. Th« holib>r eiijief was boimd to his Buperior ar.d eouid grout to mleriorji under him ; and the hold-T en roturc or cai^ivc was bound to his superior, but could have no infe: ior below him. As to the essential charno'er of the contract in- volved in the granting ol land en fiefy I refer here 10 one authority only, that of Herv»S, the latest «inl perhaps m st satisfactory writer on the whole BU>>ject of the Seignioridl Tenure. In his I fit vol p. 372, he says, speaking of this contract: *■ u' doit Itrc dkjink uns concession, faite d la ch.ara:e ^ic^ must be manifested in. "t\e manner agreed upon." This then is the essential of the contract — a superior holding nobly grants to an inferior who admi's his in- ferwrity and acknowledges it — how / Why, ob- servt" — in the manner agreed upon The kind o( acknowledgment is ih*- crt-aturt-of tbeajcuement l)etwecn the part e» Hero, again, is the dtfini- tionoftha holding d t^/1r^ decens takf'n from the same author, vol. a, p. l.^2 •• Ciit le bait d'une " portion defiefou d^alltu d la charge par Ic pre- • ** neur de connerver et danconnditre, de la ma- *' niite convtHie, un rapport de niiition toujouri I " miimtant i n'.rt ta portion eonciUe et relU qui " ne I'tst pi I, tt de jouir roturiirement ; '' it is ** tb* gram ofa portion of h fief or aku, subject ta " the charge apoa the taker of maititainlng aa4 " reco .nising, in the manner etgrttd upon, a lela- " tion of subjection evei subsisting between the " part conceded and that not conceded, atvl of " holding as a roturier.' The holder !d en ccniiv. was really and truly property. In thosi^ dciys 6urh grant of larnl was merely the i;rant of iti use, and t:.e holder could not leave it to his childr.n or in any othor way dispose ol it. But in process of time it became the rule that holders of land en /<>/ could part wi'h it by will, o- by any contract known to the law — by sale, loas?, grant d ccns or d rente, or in • y other way. U the hoWer did thus part with bis land, the Lord of the land might claim his certaift amount of dues : if it was aj^f/* that was sold, the buyer had to pay a quint. But I repeat, subject 10 these pa) men's the holder could sell hinfief or any part of it ; only in the latter case be could noL make such part a new /i*/. The pur- chaKiT would merely become a co-proprietor with himsidf. Indeed, subsequently, still f.rlher relnxatlot came to be allowed. Within varying limits the holder en fi'f became entitled to alienate withont dues acciuing to the Lord. According to the custom of Paris this point was regulated in a very precise manner ; the holder of a fief being at liberty to sell, grant or other< wise alienate two thirds of his fief, if ha only reserved the foi to himself— that is to say, if beheld himself still as ibo master of the who e, and retained some real riaht, large ot small, over the land. He might take the valiM either in yearly payments oi one sum of mone/^ provided he only retained somethi-g payable an- nually in tok^n of his feudal superioiitj and pro- vi)led also be did not dispose of more than two thirds ol his ho'ding. In Brittany and elsewhcro ihrt whole of this system of d.sposing o(ftef$ \nm unknown. Tht,'re the lord could not sell part ok his/it/. He could either grant it nobly oren ro- ture ; but could take only a small Crish payment \ and supposing be had ever granted Idrid at a par- ticular amount of rent, he could never afierwar4s sraril it at a less rent, and this for the reason th»t (he interests of bis superior in the land wa- afiiict- ed by th^ Amount of thi^ nerrn^n^n! tev.t. Fh**^ he had the right to demand that the holikr below hi n should not make away li|$htiy with his pro- porty— that tht value of his property sboiikl b« \\\ I keptvp. TtatwMthe rMtrictton in thet« cus- tom* ; W it did not «xi«t in the custom of Paris. No lawyer will deny that by the law of France all the obligations on holders of land were in the interest of the lord and not in that of his inferior. It was not then the fashion to think of the infe- rior at all ; but only to take care that the rhief was not cheated by his vassal, nor the SeiKmor by his censitaire. This doctrine thus held ia France was equally recognized in England by Moiina Charta, which was to a great extent identical •with the custom of Normandy. One of its arti- cles providtfd that no free man should grant away so much of his land, as that enough should not be left to enable him to fulfil alibis duties to his 3ord. Here it was plain that it was he lord who made the demand— that it was he who claimed from his vassal the retention of so much land as was necessary lor the service of the lord. In those dayf there were no objections made to wide spread properties in the hands of individuals. In- dividuals held most extensive possessions and cultivated thnm by dependents of all grades, for their own bertfit ; not at all for thai of their sub- ordinates. The higher classes alone were re- garded, and if.vould' have been strans;", if the crown had created a class of nobility and granted them large tracts of land, and yet had intended that they should be mere agents for classes balow t'aem— for classes for which the rulers cared not. I now pass to the consideration of the terms of the grants made in Canada, and of the jurispru- dence whicti prevailed from the settlement of the country to its cession. The period being a long one,! may divide It into three parts— the first ending with 1663, when the Company of New France or the hundred Associates was dissolved ; the second from that period to the passing of the arrets of Marly registered in 1712 ; and the third, from thence to the cession of the country to the crown of Great Britain. If throughout these pe- riods there can be found any thing adver.se to these antecedent dispositions of the French law, I am greatly mistaken. Ill 1627 or lb28, the French Crown after sev- eral previous attempts, resulting in nothing, to Mtfle Canada, created the Company of one hun- dred Associates with extraordinary prerogatives. The terms of this grant are to be found in one of the volumes printed for this House ; by it the King granted in lull property all the country of New France or Canada. The document sets forth :— " And for the purpose of repaying to the gaid company the heavy expenses and advances necessary to be made by the said company, for the purposes of the settlement of the said colony and the support and preservation of the same, His Majesty will grant to the said associates, their heirs and assigns forever, in full property, wi!h right of seigniory, the fort and settlement of Que- bec, with all the country of New-France called Canada, &c., together with the lands within, and along the rivers which pass therein and disch:irge themselves into the river called Sitint Lawrence, otherwise the Great River of Canada, and in all OkJiCS rtrcjs vr ui- s, si-- >- - ~...r; .-. .s , together also with the lands, mines and minerals, the said mmes to hold always in roirpli- ance with the terms of the ordinance, ports and harbors, rivers, ponds, islands and islets, and g"n- eraMy all the extent of the eiaid country, in U ft;id in breadth, and beyond as far as it wilTbe possible to extend and to m^ikr known the a^pe of His Majesty, — His Majesty merely reserving. th-; right of Fealty and Homage, which shall be rendered to him and to his royal successors kc.** " It will be lawful for the said associates to improve and deal with the said lands as they may see meet and to distribute the same to those who shall inliabit the said country and to others, in such quantities and in such manner aa they may think proper ; to give and grant then* sui h titles and honors, rights and powers as llLej may deem proper, essential and necessary accord • ing to the quality, condition and merits of tfie in- dividuals, and generally upon such charges, re- serves and conditions as lht;y may think propei. Bui neverthe'ess, in case of the erection of anj^ duchy, marquisate, county or barony, His Ma- jesty's letters of confirmation shall be obtained 'ipon the application of his said Eminence the grand-master, chief and general supeiintendantof. the trade and navigation of France." There then was a grant made in 1628 to a com- mercial Campany, with most extraordinaiy pri- vileges They were to make war or peace; to hiive fortresses, in fact to be clothed with all the attributes of sovereignly ; and it is provided that all limitations which mighl appear to be made by the Custom of Paris, or otherwise, were to be dis- pensed with. They were to grant to anybody and everybody on just such terms as they pleased- There were granLs made befor-- this period ; but none of them seem to be in foice ; so that I begin with this grant to the Company as affording the key idea, which interprets and governs all that follow. The Company granted, under this am- ple charter, a considerable number of Seigniorie* between the years 1628 and 16(53. By exdmitt- ing the printed titles and adding several others ob- tained elsewhere, I have found out in all sixty ur de Ch hold, unto h bove conced them, to wi city and and thirty arpen in roture, si <"cn», payab on the day \ the said ctm amendes ; a St. Lawrenc full propert] ever, unto !i ertheless to Here agai anu another but one a ve t>)«n the oth( rir, JuU IS it wUFbe trnthe &9p« y reserving, ch shall be lessors &c.** issocifttes ta as they may 9 same to ntry and to ii manner as grant tkenv ivers as tliey isary accord • its of the in- :harges, re- ink propel. :lion of any y, His Ma- bu obtained minence the lintendaatof. 28 to a com • rdinaiy pri- ir peace; to with all the irovided that be made by ere to be dia- to anybody hey pleased, period ; but I that I begin, iffording the >riis all that ider this am- f Seignioriea By t'XrtmJtt- I al others ob- all sixty one. les or havft ve been for- n force, an4 ts laid before Lower Cana- The Compa- e sixth of the grants cover ints, accord- great accn- ands in Seig- arpents, the f is not far these graitta ns, and one ot' the Seigniory ih 1634, and J desirous to ve and grant ppurtenanccs ne iexgue of t. Lawrence, on the land* River Notre )resaid river, Giffard, hui lice, property i\y the same I pleased Hu " Majesty to grant tb« country of New France to '' th« said Company." Is not that an irrevocable mmI absolute grant of property 1 I think if there are wqrdd which can convey such a grant I have just read them. But the grant conveyed other pro- pertjr ; it gives another piece of land d litre de <€it8 in the following terms. " Besides which '' things the Company has also accorded to the " said Sieur Giffard his successors or ayans cause " a pliace near the fort of Quebec, containing two " arpents for him there to construct a house with " the conveniences of a court yard and garden, " which places he will hold d cow of the said place * ofQuebec." The strong expressions contained in the other grant are not in this. I of course do not mean to Sdy that this was not a grant of property ; but when I have the much more extensive ex- pressions of the other portion of the grant, I can- not believe that they were not meant to give the most absolue property. If one was a grant of property, which cannot be denied, le other was such a grant ten times over. The one was a grant made as to a commoner ; the other of all kind of property, with right of justice and lordship over liae tract of country comprised within it. The following are the conditions of the grant of Deschambault {Pieces et Documents 375) :— " We have, to the said Si^ur de Chavigny, giv- enr, granted and conceded, and in virtue of the power conferred on us by His Majesty's edict for the establishment of our Company, do by these presents give, grant and concede the lands and places hereinafter desi;ribed, that is to say : two arpents of land to be taken in the place de- sii^nited for he city and bmlieue of Quebec, if there remain still any unconceded lands therein or adjoining the same, to build thereon a dwelling with a garden where he may reside with his fami- ly ; moreover, thirty arpents of land to be taken outside the said banlieue of the said ciiy of Que- bec and close to the same, in the lands not yej conceded ; — " And have moreover to the said Sieur de Cha- vigny given, granted and concedfd, and by these presents do give, grant and concede, in virtue of the power co'iferred on our said Company, half a league of land in widih, to be tnken along the said River St. Lawrence above and below Quebec lo commence from Three Rivers only, down to the mo'ith of the said river, by three leaguts in depth inland, either on the side where Quebec is, or on the other shore of the said river, as the said Siv>ur de Chavigny may desire ; to have and to Iwld, unto him, his successors and assigns, the a- bove conceded lands, in full property, and possess them, to wit : the said two arpents of land in the city and and banlieue of Quebec, and the said thirty arpents near and outside the said banlieue, in ro/ure, subject to the payment of one denier of ccns, payable at the Fort ofQuebec, every year, on the day which shall hereafter be appointed, the the said cens bearing lods et ventes, saisine et amendes ; and the said half league on the River St. Lawrence by three leagues in depth inland in full property, jurisdiction and seigniory, also for ever, unto him, his heirs and assigns, subject nev- ertheless to the condition of fealty and homage." Here again one property was granted en fief, an« another m roiutt — uulh us real property ; but one a very much higher kind of property t>>«n the other. On page 351 {edits et ordonances) I cite the original French copy throughout— will be found a grant of a different kind — one of t)ke grants piying for that favour. There is of course no question but that all these grants implied the duty of settlement and clearing of the land — that when the crewn granted land, the grantee was to take possession of, and make use of it. If not, the c«>ntract was not fulfilled ; and either the crown, or the company — in case the Company were the grantor — might take it back, «8 if It had never been given. This I admit ; all I contend for is, that the grantees were not botjnd to settle the land in any particular manner — that they were lords and masters, not obliged to concede en arrilrtfief nor yet d cens. There were physical difficulties m the slate of the new country which rendered it impossible to carry otat in it the manners of the old ; but these were circum- stanced of geographical ptisition, not restrictions of iaw. The law imposed no restraint whatever ; ana ac to the grants, very fevr indeed made any mention whatever of the amount or kind of settle- Jnent to be effected by tlie grantees. In the grant of Deschambauit, Pieces ct documens^. 375, it was provided the grantee " shall send at least four working men to commence the clearing, be- " sides his wife and servant-rnaid, and this by the " first shijw that shall sail from Dieppe or La- " Rochelle, together with the goods and provisions " for their support during three years, which " shall be gratuitously brought and carried lor " him to Quebf*c in New France, on coiidition " that he send the whole on board of the " ships of the said company at Dieppe or La- ** Rochelle." There was thug a consideration for this grant — not however an obligation to take out sssigrants by the huridrcu- "uot to coficcdc io ull and sundry who might come and demand the land. You could not in those days have induced a man of substance to come out and settle, w.-th- out giving him a large quantity of lai^, and m man would hare thanked yoii for such a graat unless ho were to be the master of it. The grant of Montreal shows a similar kind of expectation that the grantees would bring out set- tlers ; but none imply obligation as to the termii on whi.'h land should be given to these settlers, Some of them positively limit the power of grant- ing land in p very whimsical manner. Thus in tlie grant of Beauport in 1634, the laiid is give* '' without the said Sieur Giffard, his successors or " assigns, having tne right to dispose of the whole " or part of the lands hereinabove granted to hian. " without the will and consent of ihi> said com- " pan}', during the term and space of t(H) years.** 8o far then from its being the duty of the Seignior to concede, his grant restrains his power to con- cede. The grant of U*Autr6 provides that con- cessions shall be made only to perhotw residing in new France, or who shall go out there. That of Montreal k St. Sulpicc on the contrary lia^.its tlic ai to persons not inhabitants of New France, but wk» shall bind themaolves to emigrate there. This shows how various were all tiicse grants, and how adverse to the ideas that then prevailed, muet have been the notion that the grantees were bound to subgrant their lands, d cens, or otherwise. Besides, i number of these grants er.fief, were of tracts of land too small for sub-grantir^ to have been possibly thought of. Lsle dea Ruaux was a small inland granted for pur- poses of pasturage to the Jesuit Fatliers. Another grant was made to one Boucher of two hundred ar- pi'nis, enj'.ef; and another on theCap Rouge Road, called Becancour, was but ten arpents by one. It appears also that one Bourdon had a house whick he called St. Jean, and which was held en roture^ This the company erected, witi\ sixty arpents of land adjoining it, into a /ic/; no doubt to gratify the proprietor by makir^ his lenuro that of a m»a of rank. Under such circumstanc^fl, can it bo imaging that the owner ot the/*/ was necessarily bound to concede ? No, he was the proprietor, only with a higher social rank a d superior privileges than were possessed by tlie holder en roture. It was impossible that 6*:ch a condition should bethougtit of. The grantees ir.ust sometimes bring people o«t from France ; but th? Company could not require them, after they had doue so, to make any other bargain than they axid the emigrants thought fit to make. The Seignior could grant or uot, as ho thought proper. The beginniug, middle aod end of his obligation was, to takf> possession of his land and settle on it ; wh?P he had done this, he might lere. This s, and how tiled, must were bound rwise. fief, were [ranting to Lsle dea I for pur- 9. Another liundrcd or- ouge Road, l>y one. It use whlcbi I en roture^ arpents of to gratif/ It of a mm. « imaging ly bound to i>nly with a Jegcs than f. It was bdthotigfit ; people o«tt not require any othec >ught fit to :ot, as ho !e aod oad OH of hifl IP this, he J. Again, rcligiouA nvm a rev- le idea that :-s. bree tenths la. I pasii late of the ance, aad larly were 1 because it y ; the ma- 1.1— I i-« 1627, ai,. vn hands, 'ere issued" I iWliich have been cited as thov>gh they irnpoitefl '1k9 revocation of the nntecedunt grants by the tonjmny. Many have thought that because tha liing said these grants wero to be revoked, they w*»re revoked. I admit, some were : indeed all those which do not at present subsist wure no doubt tnkmi nossosfiion of and grouted ajain. The first of'thr'se Arrets is of 16G3, March ^1, (page LTi. of the Third Volume Ifu'd bpfc-e Parliament), .ii it the king conn plains of the failure to st^ttle the cuntry end alleges : *•' that one of the chief cauRco for the said " country not becoming so populous as ho " desired and even thit several scllh'mftits had "' been destroyid by the Iroquois is (o bo fouii'l in "in the grants of liirge quaritilifrs ot iar.d wliich •"' have been accorded to certain inh.ibitanls of lh<: " fidid country, who never l)eiiig abl^e to clear thfiir *' lands, and havit'g established their rcsid r.ccs "in the middle of thf* snii! lajids, hive by tlii'j ** means found thcms^I.ts placed at i .^rcat dis- " tance from ^ach other, and, therefore, un.ible t.> *' succour or aid each other. " An i »!;» arret goes onto say that, to prevent this evil, th? ki,ng j ordains that " within six months oi tlie }>ubiica- ** tion of the present arretin tha sii'5 country al! ** the inhabitants thereof shall cars? to bi> clear- "ed the lands contained in their concfissions ; or " otherwise, in default of their so doing within *• the time mentioned, his Majfstv' ordains that *' all the lands not cleared shall be distributed '• by new concessions in the name of His Majesty; *' His Majesty revoking and annulling ail con- *' cessions of land by the said company still re» " maining uncleared." It misht be supposed that this meant something; b;it almost on the same day tbera will be fotind in the old edition of the BdUi et Ordonnances, vol. 2, p. 26, a document directed to a M Guadal"^, h Commissioner of In- auiry. lliis is dated May 6th, 163.3. and in it le king treats ihe injunction just mentioned as merely comminatory, and never intended to .be carried out to tlse letter, " In case any of "(hose to v;hom concessions have been xsde, " set to work at orce to clear them entirely, and " before the expiratior of six months as mention- '■ ed in the arret, shrill have commenced to " clear a good p:irt, it is tht! intention f.f His Ma- *'jcsty, that on their pr-ti^ion, the Sovereign " Council may grant a new term of six mor:triS *^only, which being opd.'d he desires thai fill th^ "abovo mentioned concessions shall be dpcla.'cd *' null, " When the arrit rnmo. to Canada, how- evtr. it appeiarsthat nothiM^; w?S'ior>j wi'h i; the ifiovereign Council Ci)r.Cfiitnd its;:if with merely (having it co.Timunicatcd to th:; Syndic of the hahi- runs before cny thin? was done upon k—avani /aire droit. In fricl nolhing wr; dote, fxrepf as to those concesjior.s already refern!'.! to which were r<=8i!med and rcsiranted. In May 1661 the French king g sn'f-d a now charter to the company of tii'? VVost Indir-s, find shortly nfter this, was written one of lh» extracts cf corrcspondtfnce lately laid hf.Tore this House, 1 ftel it nects^ary to advert t^t this latter, to show th:it I hxva gone over the entire sniijoct. The paper heais the names of dc 'I'ra' y nnd Ta- Idn. who were at tliat 'iinr (Invrrnor and fnton- dant of the colony. They seem to have be^n fram- ing a plan fo, regulating th3 CDacess.ons of lands, aad they proposed .• — " That an ordinance be madn, enjoioirg all in- habitants of the country, and all foreigners powi^t' sing lands th«?re'n, to declare whnt they posse *i, . either in Jlef of iieg^ homage or of simple homnge, m arriert-fief or in rofurn, by a state- ment and ackt'.owli d.;ment {dinombrtminl et aveu) in favor ol the West India Company, giving lh« conditions and clauses contained in th?ir title-deeds so that it may be ascertained whether the Seigniors (ae.igneursdominan's'^ nave not had anything in- serted in the dc'td.s gi\ en to them by the lords pa- ramount {seiinnevrs mzfrains ou dominantissitnrg} to the prejudice of ihe sights of sovereignty; and wh^tbur they tijesriselvts, in distributing tht; lar.ds cf th'jir^«/ f sovereignty ; and under tliia -.il was — not to make the Sei- to throw a certain measure of ay of their so doing. Whatever tended, however, it would seem - tjiere project which camo to (.' -.rt'a < . e " i. gr obs might ., to have nothing Asecv i arrtt has been cited as prr.ing the zeal of t< " king to enforce the ser.icment of the coun'.ry. This bears date in 1672, and was registered S(!pt. IS, 1672; it appears only in the old edition of the Edits et Ordonnancas at page 60. This WiLs issvr-d just at the time when anew gov- ernor was corning out, andi.* really little more than an order to Mr. Talcn the Iiitcndant to make a land roll or terrier It rrrites the too grer.t size of tho grants and tiie insuflicii'nt Settlements, and then it direct.'< that all proprietors should at once settle on their lands ; failing to do which they wercto be tak(»:i by the crown and regranted to olh:5r.? — not the wholf oi" them, however, but half. Th«; spirit o, the arret wa-! to say to the proprie- tors of Ian ,3, wp see lh;\t you have got too much to settle; therefore half luvsl be taken away from you • but the mere fact of this arret hcing i.ssiic(l f^h()wed flmt the prec?di<-:g one of 1663 was m'.Tcly comipinatory and tiad not been acted upon. Nor \v3s tliat of 1 672, any more fhuii t}ie other, for almost iinm Mliatoly after, Talon granted a great iunn!)er of S'igniorics without gain;^ through any forir.aliiy whatever, for reurjitin,? to the do- main of the crown any grants j)revi'jnsly nri'.de. A third arret on this subject, al.'JO diree'ing the escheat of oil" half of all uni^cttled l-aiids was is-'iiipd in li'.74. and dirr-ctod to Mr. Duchesneau the then Intenc'unt; but this ag.iin was merely comminatory a;vl never acted upon. Then ia 1676 joint power? wore given to the Governor 9cd I I i)m Inteadant to fnnt Itndi j sad in 1979, three yew* I»tter, there xnw a fourth arret on the aame OThje^t, which, like all the rest wm a mere threat. The term* ^f this last were analogous to those of the preceding ono, except that it sets forth that the Papier Ttrrier oi land roll had really hsen made. The lands granted before 1665 were to be cleared with all dispatch j if not, they were not as a whols to be forfeited ; bnt one quarter was to be taken off the grants, and one twentieth part yearly every year afterwards. There is not, however, the least trace of this having ever been put in force ; it was merely romminatory ; neither one half, nv>r one fourth, nor one twentieth of any seigniory was ever confiscated. All was a dead letter— a threat never extcuted, nor apparently intended to be ex- ecuted. 1 pass to consider the grants made by the West India Company, or in the King's name, to the year 1712. 'Ihese grants were very numerous — in all something less than two hundred and sixty, of which some 83 are cither not in Canada or for other reasons should be struck off. There remain 176, of which one hundred and sixty four are printed in the volumes before the House Two of those not so printed I have obtained elsewhere. They exceed four sevenths of the grants now in force, and they cover more than four millions of the ten millions of arpents held en fief. That 01 River du Loup en ftrts is one of those granted by the W, 1. Company. It grants "On the south side of »he great River St. Lawrence, on-j league above and one league below the River du Loup, by one league and a half in depth, and the ownership of the said JUvcr du Loup, and of the mines and minerals, lakes and other rivers which may be found within the said concession, and also the islands and beaches in the said River St. Law- rence, opposite ibe said concession, with the right of hurcinff and Jishnig throughout the '.vho'e of the said concession ; to have and to Hold the same unto the sajd Sieur de !a Chesriaye, his heirs and assigns, for ever, in fidl r)roperty and seig- niory." The grant of Terrebonne is in similar terms, and both were comu-med by ihe King ir. 1674, at the time of the revocation cf the char er of the \V I. Company. Indeed the clause of the revocation by which these grants were confirmed was of z very extensive nature. " We have rendered " valid, approve and confirm ihe concessions of *' land accorded by the dirnctors, their agents or at- ■* torneys, and the particular sales which have •' been made of any habitations storehouses, famis *' or mheritances." So that by this act, even sales rnade by the Company were confirmed. Besides these grants by the Company, s^x in number, there were many in the name of the King during rtiis period by Talon, especially to officers of the Regiment Carignan who were then settling in the country. A number were also granted by yrontenac and by Duchesneau, first separately and then together as Governor and Intendanr.— And the remainder were granted by subsequent Governor and Intendants. In theje documents there is great variety, some Kferring back to grants by ihe Company of New France, and augmenting them ; the new grants D6inp;qHite as destitute of clauses of restrictions on the grantee as the originals. A great number m«ati«n rivers, Iik« th«t of Rivtr ih Iart from this ftm- bigttity, I repeat lh«t these eltujes do not require t^e pantee to h«ve tenants at all. They merely require, hi tj if he have te kants, to make them live on their Ihncte. He m-as not to purt with hi« land or to create claims upon it with* out makin;; those to whom hs gave it reside upon ii ; and they were not then to have it except npon condiiion of preserving the oak timber. T" show Ti»is was the whole meaning of the clause, if will be enough to turn to other titles of the same period. We shall see for inst ice, that this clause gradually got shortened, and that it appeared in a grant of Longueuil, July 10th 1676 (p. i)0 picres etdocu- ■/MTtts) in the following words : — "that he shall con- tinue to keep and cause to be kept by nis toiiants hearth and home (feu et lieu) on the said seigniory ; that he shall presetve and cvse to be preserved the oak timber fit for ship-i>uilding which may be found there, &c." In the grants of .St.AIaurico and Gentilly, the same year, the clause is merely " He shall continue to keep hearth and home {t^nir " feu et lieu.) on the said seigniory, and shall prc- " serve and cau'se to be preserved the oak timber " thereon." Wnerever, indeed, any mention of tenants is to be found in these grants, it is to pro- vide that the seignior shall hold them to the duties he ';Vas required to enforce on them. This wt ■ in the spirit of the times, when the highest exercised rights on those below them, and required those below them to exercise these rights against those lower in the scale. I '^o farther even than this. Some of these grants are even so vorded as une- quivocally to import nothing more than permis- sion to have sub-granteos. Thus in the grant of Ste. Annedes Monts the grantee is to cause to be inserted the same conditions m the *' conces- , sions that he will be allowed to grant on the said lands." And in a number of other instances, the same or like words are used. Nor were these varying forms of expression l!io result of mere unauthorized caprice on the part of the Governor and Intendant. They were fully sanctioned by the crown. There are print- ed two Royal arrets, each confirming a number of grants ; one dated in 1680, the other in 1(JS4. By these the King declared that he confirmed those grants precisely as they were made ; only adding a clause to require clearance within six years. I have also obtained another, bearing date the same day as the arrets of Marly, 6th July, 1711 ; which contains the ratification of 11 grants of various dates & granted under various conditions, but none hinting at any obligatiott on the grantee to concede. In this document which I have from a client (and the terms of which correspond al- most word for word with those of every subse- qrient brevet of ratification that I have been able to procure) the King expressly recites the Seig- nior's obligations as the following, and no other : " To render Foy et hommai^c at the Castle of St. Lewis at Quebec, of which they shall hold under ; (to pay) the ordinary dues ; to j>reserve & cause to be preserved the oak trees proper for the construc- tion of vessels of the king ; to give notice to His Majesty or to the Governors and Intendants of the said country, of raines-, ores and minerals, if any be found in any part of the said concessions ; to Keep hearth and home, and to make their te- nants do the same, failing which the grants shall be reunited to the domain of His Majesty ; to «?ear and eause the said lands to be tit^rti ; fiy^ spuce for roads n'iceseary for tb« jtahtic too* ; to IcaTe the beacbea free, except thc«e whkil they mav want for their own fieherie» ; aitd kt case Hi/, Majtsty shall need any port of aueii lands, for the construction of any forts, batteries', places d'armes, magazine^j or other public vrorka, His Majesty shall be entitled to take ihe same, m also all trees that m ly be necessary for such pub- lic works, without having to make any compen sation therefor." In all this, most surely,— in all, I repeat, that is to be found in all the grants to this date, — there is no word indicative >f the imposition on the Seignior of any obligation to sub-grant his laiida on any particula terms, or indeed to subgrant them at all". We con>e, then to the arr«/i of Marly, of the 6th July, l-Tll, promulgated in Canada in De- cember, 1712. It lUM'l hardly be observed that there are two arre'.i <>< i,. at date; one aimed at the Seigniors ; tht j^.erat ^lie censitaires. Be fore 5;peaking of the precise terms of these arrets, I must remark on some matters of fact only of late brought to light, and which are established by the extracts of correspondence printed in the last of the four volumes laid before this Honorable House. From the second of these extracts, it ap- pears that in 1707, Mr. Kaudotthe elder, the then Intenda.it, wrote to ihe miniEtcr complain- ing of many abuses, as he thought them, which prevailed in the country, and especially stigma- tized the espi it d'affaires and of law suits which had taken possession of the people. According to his ideas, it was necessary, in order to put a stop to all this litigation, to introduce an entirely new law, establishing an absolute five years prescrip- tion, by which all sorts of people should be pre- vented from bringing all sorts of suits ; for, said he, unless this universal litigutioq is pu'. an end to, the most dreadful results to the colony must fol- low. Then he turns round upon the seigniorar, and says that many habitants have settled on land on the bare word of their seigniors, without deeds sotting forth any conditions, and that the conse- quence is that these habitants have been subjected to rents and dues of a most onerous character ; the seigniors refusing to give deeds except at chargys which the censitaires ou^ht not to be compelled to pay. This, sayp he, Tias caused the dues to be different in almost nil the seiitalior,^. being at greut distances frorrj ihs eeiusioi's house, wJiere thi? oven must be e.sia Wished. " Raiidot, then . proposes that all tlie.so things •hould bo changed and a now scUlwnont made — *e to all sorts of m.itters. Some of lua proposals, — as for inatiince, ti^at for suppressing the four ianal, were oot unreasonable ; but others of them wero absurd ; and one in purticular— for the roduction of all Seigiiiarial reiits, nast and to come, to one low uniform rate, wa.s (to .say the least) a pro;>osal to interfere with coutracta and eatablished rights of propi-rty, in a manner utterly uidefensihle. The next document in the sarr? volum(,> h a ietter, Oi part ol' a letter from M. dol'onfchartraia io aiMwer to thiii di^spatcfl ; a diplomatic rote, wtlmating a civil dispoeition on the part of the iWinwter at hiyrue to act on the rc.'ommer.dations iCiven him ; but asking fur more riiiation. Following this, in the game oluine, are two «ote6 from Ponlchartiain to Messrs. Deshaguais «nd Attoraey General D'Aguessenu — two law- ferg ; in which the mihister request-i those two ffeiitlemen to draft au edict on t.'ie subject. The importance of these two r.oteti, however ib not obvioas ; a.s there 'm nothinff to fihow that any such edict ever was drfift-v]— aiid it is at least quite cortain none was ever j)a.^epe of bein» able to '• sell the fi:'.me, and at the uf.nc time iirpose ■' npon the purcbusers the si'.^e di;e? rp are paid " by the iiit'.abilir.t? aher.dy nettled on lands, " which i.^ entirely contrary to Ilia Maj -sty's iii- " tentions, and to the ch'jsoa and conditions of " the concc.-sioi^s by which tlsev a.'-e merely per- " mined to concede lands s-ibjoct to dues (a " fitre de rfii't'anA's) whereby u-ry great da- " triment ia d^co to the iiW ssttler.?, who ' find less land opon to F,-}ftlement in tfa« " places best adapted to commerce : " For nrufxiy hereof IIi,s Maj,?i.*.y, being ia " his council, lj.ia ordaicc-d and ordains that, " wilhi.'i cne year at the farthest from the day oa " which the present arret shall be published, " the inhabitaiits of Ne-w Fr,^rce to whom His " Majesty has granted lands in &eii{niory, who " have r.o daraaiu cleared ar.d who have no set- " tiers on their grants, shall be bel.l to bring iheai *• into cultivation and to place settlors thereon ; in " default of wuich it is Hi- Muje.?f y's will that the " said lands bo reunitod to his domain alter th« " lapse of the said peiied, at the diligence of th.vord cm- ployed ? If it were intended to fix a constant rate, why was not that rate mnutioncd ? Kaudot, as we kaveicon, in 1707 and 170S calK-d attt^ntion to the Taricty of rates ; and yet, well acquainted with these eircomstancps, and after his minister had called en MM. Deshaguais and D'Aguessenu to drsft an edict, what does the King do? Do we Gnd him ssy. you riiall concede at 60 much, a fi^r<» d'(i«'n«? Not at «11. Yo« are to concede, ho ssy.", for rcdiH;re. Tiui latter merely relates to the making rant roll of tha domain of the crown. Next comes an extract, a single sentence, havii reference to the ceveive of the Island of Montreal, purely local matter ; and thU again is followed by sontcnco from anather document, which also calls fi no present remark. The two documents next following (on pa«es 16 18 of the game volume) are, however, documenta much importance. They purport to be, the one minuto of the proceedings, or of part of the proi ings had at a sitting of t'le Consdl de la Marine. Hoard of Direction of what was then the French lonial OiEce) held on tho 9th of May, 1717,— and other a copy of a draft of an anet which at that ting t!:at Board resolved to recommend to the K' It would seem from thoae papcrp, that Begon, i the Intendant,(for Raudot had ceased to be bo,) hi made some representations, which unfortunately not printed, ou a variety of matters ; and that ho complained greatly of a number of practices char terised by him as abusive. Among other euch tn. ters, ho seems to have represonted that a droit retrait was sometim&s stipulated, so sweeping in range as to givo the seignior a right of preemptl of all manner of articles thnt !)is cemitairc might ha to 6;il. I remark particularly on the onerous ch actur of some of thece charces, because thoy show ti absurdity of tho assertion frequently made, that o» 0U8 demands have been made by tho seigniors since the cecsion of the country. It is common say that evnrything which is obnoxious connci with tho tenure took its rise afior the cession. 11 however, wo find that long before that date, cla much more stringent and odious than any that n prevail were complained of, and were even not formed by those m authority. 1 say they wore i reformed ; bocnuso though the Council of tho Ma pissed a vote to set all these matters right, yet nrrct contomplotrd by that vote was never paw into law. It was a document which bad the sunctii of the Count do TouIoum, Admiral of France, a; of Marshal D'KstiAns— douhlleas a very good sai and a very good dohlirr—and it was worthy of th naval and military education. A numiirr of clauses arc so siiigularly contrary to every uotio* I n I f, tkkt it ii imposBibIs it eonld ever har» been pro* i%Bted with the force of Jaw. In troth it nerer eeh arret— » draft of »n arret it m%j have been, arret it never did or oould become. One thing is Tthy of remark, that neither in this minnte of the lancil of the Marine, uor in this draft, nor in the i-ete of Marly, \a there any proposal to interfere th any past contracts, or even to regulate futnrp itraets, in so far as the amounts or kinds of dues pnlated or to be stipulntcd (various as these were j own to be) were in question. There is no trace of ! notion of acting on the proposal of M. Kaudot, to laliae the rate of ceiia et rentes all over the coun- That this draft of an arret, such as it was, never illy so mocb a? had the Itoyal sanction, is a fi;ct II farther evidenced by the next extract to be ind m the same volume. This extract is short, i yet must be read two or three times, in order to iertain what it means. It i - oart of an instruction m the King to the then Governor and Intendant, \ (rendered into English as closely as I can render reads thus : — * * The attention they are to pay to he execution of the arret of the 6th July. 1711, vhich reunites to the domain of the Crown the leigniories that are not inhabited, and to the oblig- igof seigniors who have lands for concession within the limits of their seigniories to concede hem, is very necessary for the settlement and lugmentetion of the colony. They arc to prevent he seigniors from receiving cash for the lands which they concede in standing wood, it not being lUst that they should sell property on which they have laid out no money, and which is given to hem only to got it settled, {qui ne leur estdomi pie fiour /aire hahiter.") rhesc words show what the Crown meant by the eets of Marly. Here is the Crown's own gloss on ) Crown's (irr>^ls. They were to prevent the gniors from taking money for lands conceded at 8 de bout. Not that there was a fixed rate at lich lands were to be granted ; but that money s not to be taken for wild land, if O'^t surely, such 'Uer as this proves tliat the draft proposed by the \tnyu& of 1717 could never have pjused into law : d that been the case, these instructions could never TB been written. The next extract, of date of 171 9 is only intercst- f ac showing that in 1 7 1 6 the crown sent orders to J colony to cease granting seigniories. The des tch conveying these orders is not printed ; though rionsly enough, an nnintercstiiig extract from a ter of the same date appears in this collection. I pass on, then, to speak of the terms of the grants ide after the date of the arrets of Marly. I have already stated, andany body who will study 5 grants before the date of those arrets, may rify the assertion, that none of those grants imply 1 condition to sub conoeae in any manner or to any dy. The only obligations are on the grantees jmselvcs, and those to whom they may grant, to certain things— there is no obligation to sub grant all. Coming to the grants since that period, I find It thev are ninety in number, of which thirty-five 8 not here to be ODUnted, as being either not in .nada, or as revoked, or for other causes. Of the .V-Uva UiKlAK ..AM.*!.. £r*» M...A I...... L.. ._ *...., fenr. Tlit8« fcnii iMOfif one-fifth of the total grants imw in fore*, and ^^7. cover some 3,000,000 of arpenta, or three-t«Bth* «| all the land granted en fief. In 17 16, as I hare stated, the king prohibitei) the granting of more seigniories In Canada. And frtiai the date of the publication of the arrtU of Marly, t« that of the enforcement of this order, five eeignioriee only were granted. One of these, granted in 171 J, seems never to have been taken possession of. An- other, of the same date, was that of an augmentation of Belocil. Singularly enough, these are printed as embodying an unintelligible combination of the fief and ccnsive tenures ; the grants purporting to be en fief, and yet subject to a nominal cens. I snpposft this a clerical error. 13utthis is of no consequence for my present argument. All I need observe as to these giants is, that like the older grants, they eon^ tain no clause hinting at any obligation to snb-graut. The other three grants of this period, however, do contain clause*, which if sanctioned by the crown, would have changed greatly the character of the grants, as compared with preceeding grants. The first of these in orderoftime was the grant, in 1713, of * sm.ill augmentation of a seigniory in the di.strict of Quebec ; and is printed on p. 64 of the Ist of the volumes laid before tills Hon. House. This grant provides that the grantee shall concede the said lands at redeoancea of twenty sols and a chapon for each arpent of front by 40 In depth, and six aerniert ofcens, without power to insert in the said conces- sions either any cums of money or any other charge than that of the mere title of re.s the seignior Terrebonne ; and thuso arc just non?* at all. grant gives mines, rivers, and everything else, und out, and nothing was im|M)spd but the dutj planting bornct within a certain time; yet this gr^ is of ,731, twenty years after the date of ariit» of Marly, and at a time when tho Gover and Intendant were putting in clanhcs, far moro strictive, which the King was leaving out. At t| 14 ■^erj tioM, I i^y, th« Kins himielf sare %\ns grant | eessarjrto iiisaaan azplamtion hereto ann«s«4. TMt ^v'> a man for. the pnrpotie of lumberinjr. ander a title [last docament it in print, and welt kaowa; and k i ■ ^ free a* that which was granted to his predecessor '^j tha company of the West Indies, sixty years ■Wore. '^ Bot I most return to the Volume of Extracts of ''Corresponilencc ; the 4th of those laid before this > Jlonse. The extract next following those on which PI have alreatly remarked, is one dated 1727, which <'ea!l8 for no remark beyond the observation that it 'relates merely to the quostion of a particular Seig- isior's claim to what were known ac the droits di ''Change. By the custom of Paris, a seiRnior was "Wtitfed to loch, that is to s&y, to a fine of a twelfth 'jaart of the price, in case of any mutation by sale, or %y contract equivalent to sale. But on exchanges Inhere was no such right, til! the French King created M, and sold it (when ho pleaded) to the seif^niors — 'An edict, anterior to the d^te tn which wo have now "jrrived. had granted this right to the Seminary of Montreal, and a question had arisen as to the circum- (ttanccs under wliich tho Seminary had so acquired 'Ihis privilege— a matter of iio intt;icst at prcs»'nt. ;I The next extract in order of date is equally irro- i«levant, though on snovh'!r sulijoct. It is p:irt of a niespatch to the Governor and Intendant, of date of rf73iJ, aui itate^ that upon a report by the Minister *Q a nuijiber of decisions of conflictim? tenor which Aad been rendered in Car.ada by t!ie Inteiidant aud ifais predecessor,— " His Miijesty hcs thought nccjFsary to make "bis declaration hereunto atiiiexcrl, in intorpre- |,lftti()n of the 9tli article of that of iho 5tli .July, )1717. He ord.iiiis th»t witliout refjani beiii«{ " ftd to the ordiiiancaa of the siiid Siturs Be^oii n'"* Dupny, tlie csnf, rentes, (iut;8 and oilier 'iehts coiifracfed htfnrc the re;4istrati()u of the [.declaration of the said 5th day of July, 1717, gWhen money of France, or Toiirnois, or I'ari- ' .^is, is not 8tipu!aterl, shall he paid in money ol jFrance, dodiictiiij? one fourth, wliich is tho way lOf reducing ihecturencv of the country to that lof France ; and that when money of France, or |iiTournoi8 or ParislH is stipulated, they shall be ij^ttid in money of Franco without any deduc- »lion. You will please to have tlie name pu- blished and registered, and you will take care {fhiit it beKtrictly executed." i J This declaration of 1717 is not— and I thus men- ^n it to say so — is not tha draft of arret of tho (Mmu year, printed in thi« volume, and upon which d have already remarked ; hut a daeluration really ]hsued by the King at tho time in question, on quite jatwther subject. Before 1717, there was current in |lHe Province a tort ot dt;bonture monuy, called man- flMie (kf cart^.g. This had become very much du- jpreciated, and tho KmK called it in ; declaring at tho Ce time that all dehti incurred during its preva !8 should !)0 paid in money of France, hntsnitjtct t« a deduction nf one fourth. Under this rrgulation, a ^lUrnbarof troublesoaiu gnits had taktin placf, on ques- Jioni whclhor certain particular dues were tn bki paid ^n fall, or not ; and this state of thinus hsd givim />•« to sevaral arret* utterly inconsistent with each ^*kuw I* u.ik« ^|**>. ihiifc t\isi ruIsTH iif th^ fi^untr? , - -- "— J..—.. ^.... ..... ......... ... ... ..........^ ^d not know what to dn in the matter. By this du- •laiation, therefore, the King said, on the rcpresen- ItrtioM which yoa have sent buine, i h*f« felt it nc* shows what the King meant should be done as to the payments, but it has nothing to do with any bkHv now in controversy. The next of these extracts bears date in Octobtf 1730 ; and it is of ^rcat importance. It is a despatek from Messrs. Rcauharnois and Hocquart, to the Mi>i nistcr ut home, and is in these terms : — ** Duringour late stay in Montreal, complaint* were made hy several individuals, that the Be»- tjniors refused to give them grants in their «e>- uniorics, ander various pretexts, ntthougk hound by the arret of the Council of Stateof the month of July 1711, to make such grants t# the habilans who may require them, under provi- sion in the event of refusal, that such habitant' may apply to the governors and intendants ol? the coutitiy, who arc commanded by ilia Ma- jesty to grant to the said hahitans the lands required by them. We have the honor to re- port, tli.'U upon ihia subject a variety of abuses have been iniruiluced, as well by the seignior* ,Hs by x\\ii habitaus, which are equally contrary to the crrtV of iho Council of Slate of 1711, and the settlement of the colony. Some sei- j.;iii(!r8 have reserved considerable domaitis within their seigniories ; and iitider the pretext ih.it these iaiidn form part of th»^'r domain, liavc icfused to concede the lands therein whick have been demanded by w.'iy of grants, heliov- iiiiT they were entitled to sell, and have in fno( sold, the same. We have also oht-ervcd, thatt in the partition of ( such of them as have not the ri^ht of jurisdie- tion (fhoit de justice) or the principal manor- house, ce.isiiig to huld themselvcn out as tKs seigniors of the fief) refuse to gr«n( to th« kaliians tho lands wliich are required of thuoi within the portion which has accrued to ihetn, and deem themselves to be without the opera- tion of tho arrct^ which requires seigniors to concede, and on the contrary believe themselvM entitled to sell the lands which they grant. " .Another tvhuso has arisen on the part of th« habitanHf who having the right of obtaining conce8^ions from the seigniors, after having m obtained lands, shortly after sell theti to others. t he effect of which has been to establish a sort of trade {une sortc d'ajiol) in the country, injurious to the colony, and not furthering the settlement and cultivation of lands, but tending to foster habits of indolence among the habiUms ; a prac- I ice to which t he seigniors are not averse inasmuck as lo(la(tvcnte3necriie to them on the sale ofauck landr ; in this way a number of grantees dunot reside upon their grants, and the seigniors ars not anxious to reunite them to their domains^ and when such re-union is dcmandc mun .3xci!-ie thempoivcs Mr not having forwarded th# territr, and say that the fault was not theirs, but thai of some of tlie vassals of the Crown ; and they go cm to say that w!iat th^iy had suR.'^c.sted iright be don* without waiting for t^.if ; iiddi.is- " In respect of th« •' concesMoris accorded to the hubitnnt by the seig^ '• niorp, ,V1. Hocquart has ;;ovcrncd himself, up to " ih'? present time, by the arret of (he 6th Jaly, " 1711, and since he has been in Can.ada, has pr©- •' nouiiced the ivnnion of more than 200 conccsBionf ' to the domain of the seignior, in defoult of tha " hnbltans obsprving the duty of keeping hearth an4 " homo " From which we see that these miiiistera I of the crown—who had never acted on the first arrM of 1711, who had never granted a seignior's land ta a ccrwitatr*;— had acted on tho second arret of tha same year in 200 cases. The first arr^t, in fact, never was acted on as law ; the sectjnd was con8tant)|> so acted on. The first rppresontations of Raudot in 1707 anA 1708, as we have seen, were scarcely, if at all, acted upon, in the framing of the arrtts of Marly in 1711 1 hut these representations of 1 730 by lieanharnois ana Hoc uart, renewed in 1731, produced full fruit in tha arret of 1732, which waspsssed in exact aceordanoo with their suggestions. This arret deolarca thai there shall be a new comminttory puldication re^ pecting the escheating of lands ; and then, to prevent the double abuse of salen of wild land by seignior «« cenaitairc, there is a farther declaraticn 'hat all «alea of land en hoia dchout shall be null, that the purchaaa money paid shall be recoverable from the part/ taking it, and that tlie land so sold shall be cseheati>4 to 'he crown. The fact, that it was necessary in I73t for tht! Ivinsr to !^j*!!iiste iii tkis f!%£!^!i£*p f^r ! "'' mit the power of the King to legiglale— proves |ha| in 17 1 1 he had not so leKislatvd. True, he kcd ihrit said that the seignoirs should concede, ar their IsMli I 16 iHj t ■ Hi- It '■A St Hi 'it lOI ll lb I I lO jO il 'b 1 U^J do not ooBoede bnt eel), the Mle shall be null. 9e BMrdjr gave* cerUin remedy ia case of .-efusal. I^, he promulgates a new penalt/ ; which was the xe-antiexation of the land to his domain, in order to Punish the one offence, which he desired to put an «od to, that is to say, the sale of wild land. It •eevs that a notion prevailed in those days, that it fine allowed land to be sold without its being first cleared, it was less likely afterwards to ba clear- ed, andthat tho edict against the sale of land«t bo\s dt bout, was thus likely to promote the clearance ot the coantry. I pass to 1 further pieoo of evidence, still tend- iae readtomean, that the grantees shall sub-grant tt some ccns accoutumls ; or as merely meaning, that when they shall so sub-grant, they are to put into their deeds certain clauses, held necessary on grounds of public policy. Beiw- harnois and Hocquart may have meant to put upon it the former meaning. But that is not th* question. The clause Ls to be read and made out, as it stands ; not exjilained into a something else, hy any considerations from without. Limiting the terms ol a grant, and this in derogation of the common law, tlie rule of law is clear, — that any ambiguity in it is to be interpreted favorably b- wards the graiitee, restrictively of llie limitation to be imposed. Vague as it tliu,: is, this clause was put by Messrs. Beauharnois and Hocquart, and their »vc- cessois as Governors and Intendants here, into <<♦ of the subsisting grants of Seigniories in Lower Canada. Three other grants, those of Graode Uiviero in 1750. an augmentation of Rivi«rp Ouelle in the same year, and an augmentation of ilimouski in 1751,— tliough granted here by Uk> Governor and Intendant,— do not contain it, bui simply declare the grantees to hold on the termd of their older grants. Another grant, during tlw same period, was made by the King himself ; th.* second grant of the Seigniory of BeauharnoiSj^m iToO; ami ibis also contains no r/ach tlaUse, «rJt answers word lor word to the t-arlier grant of 1729, already remarked upon. So that, l)etwa«n 1731 anil 1760, there were these 4 grunts iu Lower II Sif " flit of 17 Canada made without this clause ; and 45 with But [coiae now to perhaps the most important point of all. How did the Kina: deal with this clause 1 Ifin ratifying the i,'raats which con- tained it Jie qualified or explained it away, or wholly left it out, there can be nocloubt as first document oft nes.on page -iJ of volume 4. It i« a despatch Irom the minist.'r (his name not given) to Alessr^-. Eeauh iniois and llorquart, and is dated the 6th May. 17.J4. It opens thus :— " M l'Abb6 Couturier, Superior-general of he Seminary ,)f Saint Snlpice, has applied for lie conlirmaiion of the grunt which you made bv order ol the King, to that Seminary, on the *bth September of lust vear ; but be a' the same time prays that it may please His Majes- ty to explain some clauses inserter! In that ^ gmnt as well as in that winch was made m ^^ W17 to the same Seminary, and even lo change ^^ others agreeably lothe draught of a patent {hm- " x\ Tl^'K ''" ";" l"''^«"''-''l "«-'• He has ask- ^^ <«l I i.it the boundary line fixed for the Seignio, r ^^01 111.. Seminary may he alter...!. .'.■.,! tliii ^liie same direction be laid down for it as ^^ lor that of the sieuis de Langloiserie and Petit ; and he has represented the necessity of dmng so lony were lie SC' B ' to avoid the contestations which might arise ' from diversity of the directions of the lines of those seigniories ; that the clause which obliires the Seminary to preserve the oak timber fit for the building of the King's ships may be res- tricted to such oak trees as may be found on ihe parts of the seigniory which the ecclesiastics of the Seminary may reserve for the principal ma- nor house or domain, a restriction which he has represented as necessary for the settlement of the private grants to be made by the Sem- inary; that the clause may be suppressed which provides tiie penalty ol' re-union to the Khig's domain, m default of actual settlement {d'vLablii- feu et lini,) within the year and day, on the grant ; that the clause may also be sup- pressed which imports (/^o;7e) that the private grants shall be made at the usual cens ct rcnten lor each arpent ii, front by ihriy arpents in depth; ami as the same clause is "found in the grant of 1717, he asks that it miiv likewise be cancelled ; that the clause may also be sup- pressed, as us;Mess, which provides that thp beaches be left Iree to all fi-^hers ; that the clause be Ijkewise struck out which declares tiiat if the King should hereafter want any parts of the land for ihe piirpoe of erecting thereon forts, batteries, parade grounds, magazines and ^^ public works, His .Majesty mav take them with- " out being held lo any indemul:! cation ; and he " has remarked that tins clause had ben in- " serted in the grant of 1717, but was omitted m |- the patent of confirmation of 1718 ;— that the c ause inserted as well in th(! grant of 1733 as in that of 1717. vvhicli declares that (he ecclesi- " antics of Saint Sulpice shall hold their lands of " ills -Majesty, subject lo the usual riglits aiic dues •• may be interpreted and restricted to simple te- " ally and homage at each n.;w ivign. releasing ' tlie Semiiniy, wh ai need may be, from all dues ' of (imortisicuciit. prc.dnti'Jii (Vhummcs oivunts " ami iiwur III s and others, by reason of these '' gianls ; and finally that tliere maybe added a idischirge from the obHication to build a store '' forth on the land granted in 1717, and an exten- sion of that bind t" .siv ieigiies in .iepili." On ail inese demands, the repoi t of ihi' (iovern- orand Inteiuhuit is called for; and itis added that a copy ol the draft prepared by the Seminary, and ol tlieir observations in snnport of it, ace m- |)any ihe despaicb. It is unfortunate, lo say the least,— with a view to the right understanding oi the whole matt 'r,— that these all im|iortaiitdocuments are not printed, i have tried to o| tain a copy of them in anolher quarter ; but have no! yet succeeded. The answer ol Beanharnois and Hocqnart, how- ever, IS printed, au /o/ig : Much of it i.s of no im- iiiediate importance, as regards ourjnesent sub- ject. I cite, therefore, liom it, lor the present. Only siicli parts as are. The clause of the grant threatening re-union t'> the domain, ii> defaull of settlement,— I may ob- serve enpassiint, is m .st explicitly declared (o be comminatory. The Governor and Intendant (p. 3,).) in .Ml many words say. " the EcdesiasUcs of " the Seminary need give themselves no uneasi- " iiess about it.'* As to the clause more jiarticularly under dis- cusson. I translate tlieir language as exactly as [ can. It is this :— 18 3 (I h IS ■'A w Hi ii i « \i % i 1^1 f 4 « I •' Ne do not know the reasons which induced «' bis Majesty to fix, in the Letters Patent (ftrereO •«ofl7l8, the depth of the grants at 40 arpents, " and the amount of the cens et rentes. It was " thouaht it would be agreeable to his intentions " to insert only, M that of 1783 ; at the usual '« cens, rentes and dues, for each arpent of land in *' fiont by 40 arpents in depth." " The observation on the justice and equity ot " proportioning the rentes and dues to the extent " of the property, whrch may be more valuable " in one place than another, merits consideration. " and it appears to us that his Majesty m-ght con- " tent himself with merely having inserted in the " new patent to be issued ; at the usual cens, ^' rentes and dues, for each arpent of land." " This vague expression will leave the Semi- " nary free to grant more or less in depth and at " more or less cen3 et rentes in proportion to the " extent of the lands, and even to their value. " And as the usages ate different in almost every ^' seigniory, the term 'usual' will only restrain " the ecclesiastics from granting, ordinarily, less " than twenty arpents in depth, and from exact- " ing higher rentes than twenty sous for every ar- " pent in superficies, and one capon or its equiva- *' lent in wheat. With regard to the cens, as it is " a very trifling due, which has been presumed to " be established only to mark the direct seigniory, " and which carries with it lods et ventes, the usu- ^' al amount in Canada is from six dcniers up to " one sou for each arpent in front by the whole ^' depth of the particular grants, whatever that " depth may be." " The statement in the memorial, that the seig- " niors in Canada, as every v here else, have the " right to grant dceus et rentes, whatever quan- *' tity of land and subject to whatever charges "they please, is not coiiect as to .he chaig-s ; the " uniform practice beira; to grant at the charges " above explained, or more frequently below "them. 11 the right alleged were admifed, it " might be abused by making grants, which oiight " to be, as it were, gratuitous, degenerate i.ito -" mere contracts of sale." it is impossible not to notice here, the strange style in which this document deals with the clause of the Brevet of 1718, as to the qualified obligation thereby imposed, of sub-granting wild tn^ds in lots of a fixed depth, and at a fixed rate. The writers do not know how His Majesty came to fix npon that depth and rate ! Why, the fact— as we have seen — is, that the King never had fixed eith- er. It was the then Governor and Inteiidant, who did all that was done in that direction. The King had merely relaxed the rigor of their clause ; so showing it to have been theirs, not his. In every other instance, so far as we can find, he had utter- ly ignored the clause. Noi can one help noticing the frank admission made, that the Ecclesiastics were right in their proposition, thatot right there ought not to be any requirement made for the subgranting of lots of anv nrescribed df nth, or at any fixed rate. True, it 18 said that theEccles^iastics were wrong in as- serting (as it is nranifest they had done, strongly) the absolute right of a Seignior in Canada, as in France, to grant in any quantities and at any price he pleased ; but all that is said against this pro- position (one as clear in law as man muld state) 18— what 1 Why, that a " uniform practice" ob- tained to grant at certain charges, or more fre- uuently below them." Uuniform practice, often- er departed from than followed ! V ndoubtedly, it was usual to grant at low rates ; for land was a drug and cheap. But everything proves there was no " uniform practice" of stipulating any particular rate ; this particular despatch, no less than every other on the subject, that has been printed. But, says the despatch, the proposed ex- pression vague" of a customary rent per arpent, will leave the Seminary free to do a good deal. " ^s the usages are different in almost every Seigniory," all it will do will be to restrain the Seminary from " ordinarily" granting less than 20 arpents, or charging more than so much. The sequilur is hardiv clear, and the word " ordmar- il'j" is hardly without a certain significance of meaning. Was the restriction meant to be abso- lute, or was it not 1 If not, it was properly no restriction at all. For, how say what rule is to be followed as to its application 'i Yet, that it was p.ot understood as inteded to be absolute, even by this Governor and Intendant, we have their wn written words to show. The answer of the minister is to be found m the despatch enclosing the brevet of confirmation, as granted by the King in 1735,— and which des- patch is the next document given us in the same . volume. The clauses of it, in reference to the matters I am presently discussing, are as fol- " The obligation of keeping hearth and home " within the year on psin of re-union to the do- " main, has been expressed in it, agreeably to " your observation ; but this clause is not to be " strictly enforced, and His Majesty relies on " your prudence in this respect. " He has been pleased to change the clause " which you had inserted in your grant, and " which is also found in the grant of the Lake of " Two Mountains, with respect to the cens et " ren^s of the private grants, and, in conformity •' with your advice on this article, it has only " been declared in the brevet that these grants " shall be made subject to the usual cens, rentes " and dues lor each arnent of land." It is said here, the King has, as to this latter clause, issued his Letters Patent in terms of your suggestion. But, however courteous and accor- dant with diplomatic form, such a statement may have been, it happens not to have been the fact. The extract in question from this instrument has been printed in the appendix of the Commissioners Report (though, by the way. not quite cor- rectly) and it is not in the terms indicated by this despatch. I have obtained a copy of the do- cument ; and the clause in question in truth, runs thus : — "And on condition • * of causingtobelnser- " ted like conditions in the particular concessions '• which they will make to their tenants, at the " cens, rentes et redevances per arpont of land, usu- " al in the neighboring seigniories, regard had to " the quality and situation of the herit.igcs at ihe " time of the particular concessions; which also " His Maiesty wills to be observed for the lands & " heritages of the seigniory of the Lake of Two " Mountains, belonging to the said eccL'Siastics, " notwithstanding the fixing of the said ci;ns et "redevances, and of the quantity of land in each 19 more fre- ice. often* Libtedly, it md was a ives there lating any 1, no less has been ied " fix- er arpent, ;ood deal. most every strain the ; less than uch. The " or dinar' ificance of to be abso- iroperly no t rule is to fet, that it iolute, even have their blind in the mat ion, as which des- 1 the same . ice to the :e as fol- and home to the do- greeably to not to be ■ relies on the clause grant, and ;he Lake of the i«ns et conformity t has only aese giants cens, rentes this latter jrms of your and accor- tement may ?n the fact, trument has mmissioners quite cor- Indicated by y of the do- i truth, runs gto be inser- conressions mts, at the of land,usu- ',ard, had to itiiges at the which also ■ the lands & .ako of Two jccli'siastics, ?aid cens et laud in each ■" concession set forth in the said brevet of one thous- " and seven hundred and eighteen, to which His " Majesty has derogated." The " expression vague," then, of Messrs. Beauharnois and Hocquart, is not taken. It is say, I made still more vague. I should rathe is made clear and uiimistakeable. The King had been told that hardly any two ISeigniories follow- ed like rules. He qnalifies the term " usual" {accoutvmes) by express reference to neighbour- ing Seigniories, presumably varying in this re- spect. He will not at all lim>.t the measure of the lots to be granted. He will not allude to any usual rates, without explaining that they are of course to vary with the quality and value of the lots to be granted, at the times of the concessions to be made of each. What was all this, but in effect, to bid the Seminary make their own bargains, as occasion served. The limit really put upon them ; what was it more than this, that if they should charge too high rates, they were to be liable to suit be- fore the Governor and Intendant. But if any man agreed with them as to any rate, — was it meant to let him on the one hand keep the land, and on the other get relieved from payment 1 The law does not — common sense and justice do not — lightly pronounce the nullity of a contract A Contract must be contra tonos 'mores, or explicitly prohibited by law on pain of nullity ; or it is not null. He who has waived his right, by making a contract that he need not have made, such con- tract not being by law null, must abide the re- sult. Volenti non Jit injuria. So ruled this very Governor and Intendant, in regard to this very matter. One nullity only, they had themselves created, — tiie nullity of all sains of wild tand by whomsoever made. Is even that nullity of iorce now s Is wild land escheated to the Crown, de plein droit, whenever sold 'i — Contracts i;evcr threatened with nullity, by anything purporting to read as law, are they null 1 Or rather — for that is the question here raised — are they to be maintained as valid contracts against the grantor, so as to vest the land in the grantee ; and yet set aside as null in favor of the grantee, so a<» to free him from his obligation to pay, as he has volun- tarily promised '{ But to return. I have said, there were 45 grants in Lower Canada, made from 1731 to 1760, and having in them (as issued here) this ambi- gious clause. We have seen how the King, en pUme connaissance de cause, saw tit to deal with one of them. How did he deal with the rest "J In the second of the volumes laid before Parlia- ment, at page 239, will be found his brevet of ra; tification of one — that of Nouvelle Longueuil- bearing date in 1733, some months after that of the augmentation of Two Mountains above ad- verted to. It is a brevet drawn in the style, and as nearly as mny be in tlie words, of those of somewhat earlier dates, of which I have made mention ; and like them, purports to recite au long the obligations of the grantee. Bu* it does not contain this clause. Precisely as in loniier cases the King had left out the unambiguous clause then put in by his officers, — so now, did he leave out this. And this case is no exception to the rule. I have been able to obtain in all, 12 other brevets of ratification of different grants out of this total num- ber of 45; and in every one of them the case is the same. They are those of Rigaud, granted in 1733; an augmentation of Berthier, in 1734; Noyan, in 1735; the augmentation of Lavaltrie, in 1735; D'Aillebout, in 1737; De Ramsay, in 1740; the augmentation of Monnoir, in 1740; the augmentation of Sorel, in 1740; th" augmenta- tion of Lanoraie and Dautr^, in 1740; St. Hys.- cinthe, in 1749; Bleury, in 1751 ; and Sabrevois, in 1751. I have not been able to lind one, — I do not, cannot believe there is one — that does not omit the clause. I have shown, then, — to recount the facts as they stand , from the day of the date of the arrets of Marly, — that on that day the King certainly ratified 11 grants, in terms that imposed new charges on several of the grantees, but without in- serting any clause at all bearing ou this matter ; that in 1716, he did the same thing as regarded two more grants ; that in the same year he rati- fied the grant of Mille Isles, (issued here by his lieutenants with the clause of the fixed rate,) ia terms not imposing that clause on the grantee ; that in 1718, he materially relaxed its stringency, when ratifying the grant of Two Mountains ; thjt in 1729, he granted Beauharnois, without it; that in 1731, he granted the augmentation of Terre- bonne, known as Desplaines, noc merely without any such clause, but, as one may say — absolutely without clause or restriction ; that in 1732, he in effect granted Argenteuil, with no such restriction ; that in 1733, he ratified the Ursulines' grant of an augmentation of Maskinonge. again omitting the clause of the fixed rate ; that in 1735. in the case of the augmentation of Two Mountains, he cut down almost to nothing the newer ambiguous clause by that time contrived by his lieutenants, as to usual rates, and wholly struck out from . le Two Mountains grant of 1718, the stricter clause then left in that grant ; that in 13 other instances, ranging from 1733 to 1751, (being all the other in- stances as to which I have been able to find out what he did with their grants,) he uniformly omitted this ambiguous clause of his Canadian servants' insertion ; and that in 1750, he issued his second grant of Beauharnois, — still, as ever, omitting it. Is there, can there be, a doubt of the fact, that neither the one cla«se nor the other ever in trutix had the Royal sanction ? Or can there be a doubt that neither the Governors and Intendants here, nor yet the king and his ministers in France, ever took the arrets of Marly, to have fixed a rate of cens— much less to have made contracts for any higher rate illegal and null '? The clauses were put in, to enable the Governor and Intendant to e;4ercise a power known and felt not to hdve beea given them by the arrets of Marly. Their inser- tion was never sanctioned. The king never meant to grant th(>m — never did grant them — the power they thus sought ro get. One other point, in reference to this correspond- ence of 1734-5 about the grant of the augmenta- tion of Two Mountains, may call for a word of re- mark. The Seminary, we have seen, complaiu- ed of the clause requiring them to leave the beach- es free with the exception of such as they should require for their own fisheries. In their letter, Messrs. Beauharnois and Hocquart had entered into s'^me explanations as to the droit de peche in Canada, as to which I may have to speak hereof- 20 ^ J n !^ f 11 U i « '3 •1 'I H a. I 4 ter ; and hau in guarded terms recommended the maintenance of this clause. But what answer did the King make 1 "The clause concerning " the freedom of the beaches has been omutted " iretranchee.) You have observed that this "clause, according to the construction put upon ;t " in Canada, only meant that the seigniors should " be bound to grant their tenants the right ot fish- " ing opposite their lands,on condition oi their piiy- " ing a certain rate either in fish or in money ; and *' you add that the libertyof fishing, to the tenants. " must be favorable to the settlement of the lands, " which would be less in demand if the new te- *' nants were donied this right, by means of which " they obtain d livelihood at the cominencenieiil " of their clearin^^s ; but it is for this reason that " it has not appeared necessary to exjiress in the " brevet llie obligation of granting that liberty to ♦' the tenants ; the matter, in fact, is one for pri- "vate agreement between them and the seignior " {c'est Id, en ejM une Cunvcntion particulicre " entrc cux et le Seigneur) ; and besides, the " clause is not in the bievel of 1718." If proof could lie wanting, as to the meaning or effect of the omission in a brevet of ratification, of a clause inserted iu the first grant,— it is here. 'I he minister declares that it is not the king's will to bind the Seminary to the observance of this clause. It is simply left out of the brevet. So left out, it is no loiigtir a condition of the giant. Another infeivnue is no less obvious. So far from its having been the royal policy, as late even as 1735. to tie down seignior and censitaire to fixed rules, prohibitory of suvli reserves or other clauses as tln'y might agree upon from timo to time, we have licrt' the royal declaration, on the one hand that the ri^ht of tishiii:.' was niuinestionably one that ihe hdhlimd by all means oiij^lit to have, but at the same time, on the other hand, that the Uing would not in this in- fltancd force the seignior to grant it. He is to he al- lowed freely lo dispose of it, to get whatever 'he can for it. The relation of seignior and cc;wiYaireon all these matters, was to remain matter of mere cen- tral t. So niudi for the king's views and conduct in rela- tion to these matters. What as to those of his Go- vernors and Intendants there ? Lot me obsijrvy only, liy ti\e way, that this (iJi't)- periy speaking) is by no means the real question in the ease Tfiekiiiji's olficera here acted only in his name and l)y his aiitiiurity. It was their fashi'in, ot course, always to call whatever they did and said, the king's will. If it was not, if in any matter wherein his will wassigniiied to them one way, they acted aiul apoku otherwise, they at all events could not thereby make the law other than what the king, as law-giver, ducla. ed and made it. Another remark is this. The.se functionaries not Only had no power of themselves, to make the law other and than what the king willed to have it ; hat, moreover, even when not exactly niisrepresenting the royal will, they were not nnapt to make mistakes ail to the law, public and private, — which mistakes wero by no means aw. t''or instance, in !709. Mr. Iiitendant Raudot, !; whose plans (shortly before that ti:iie suhmittcd) for ' 'theHxmgufa uniform rate ot otrts, and doin;; a great many other thing.s. were not adojjted by the Crown, a-i we have seen — Mr. Kandot, I nay, i«-ued '>3i«i Ordonnance (to be found on p. 67 of the 2nd vol. of the old Edits Jc Ordonnances) by which ho de- clared all Indians of the tribe or class called Panis, and all negroes escaping to this country, tcbe slaves. And in 1736, M. Hocquart, by another Ordonnance, (printed on p. 105 of the same vol.) declared that such slaves could not bj manumitted otherwise than by Notarial i'Jc^c- Yet the Code Noir never was enregistered here ; and the law of the land did not, in truth, recognize slavery. These Ordovnances never needed to be repealed ; because, though prac- tically for a time enforced, they never really had the force of law. Again, as late as 1740, the same M Hocquart, by another Ordonnance, {on p 177 of the 2nd of tho volumes lately laid before Parliament,) after reciting that 111! had just seen a valuable pine wood in the Seigniory of JSorel, coolly declared the same to be a reserve for the supjily of Mis Maji'.'^ty's navy ; for- bade SeiL'iiior and ceiisitaircs fiom cutting any part of it under heavy penalties ; .md appointed a resident guardian to take care they were enforced. The title of the Seigniory contained no reserve of pine timber. And the wood in question was no property of tho Crown. The constuiuenees to the parties of any in- fringement of the prohiliiticn, niifjht have been un- pleasant; as it was probably ordained with the full intention of enforcing it. Hut it was still not law. Its illegal enforcement by an arbitrary ruler, once out of the question, there was no need for its repeal. V\'hat, then, in truth, as to these Seigniorial ques- tions, was the Jurisprudence (so tospeik) estahlishd by the decisions and general course of the Governor, Intendants and Courts of Law in Canada? So far as re,'4ard(!d the reunion to the Crown do- main, of Seigniories which the grantees failed to clear, it jfi obvious to "cniark that there was luactic.l'y no need of an rnvt'f of Marly to authorize it. If, after the Cro\vn had f;raiited a tei,L;niory, the grantee did not, by himself or others, take steps to si ttle on it, be miu;ht fairly enough be taken not to have accepted the grant. 'The Crown, under such circumstances, was alwaj's held to have full power to take back it, unaccepted gift. Long before 1711, numbers os i giants were niiJuubtedly so resinned; some withf some without, the formality of an express arret or decree to that eft'oct. All that the first of the two iir^els ot Marly did in that behalf, was to point out thcproc-c moJc ol' pruceduie to be thurealU'r fol- lowed, for the escheat of . end) lands. Tho Attorney General was to prosecute; and the Governor and Intendant, acting conjointly as the special and ex- traordinary tribunal alone eomjietent to take cogni- zance ot the matter, upon due ascertainn.ent of the facts, and by ordonnan".es in due form, were to pro- nounce the eseneat. 'I'he Military man, head of the Executive, and the Civilian, head of the .Judiciary, Police and Finance Depaitments, must concur in every such Ordon- nance-. or it coidd not be made. I find trace, by the way, ot liut one such OrdonW'nce, as ever really promuliiated ; of date as late as 1741 , for the escheat of 20 grants. Further incidental evidence of the habitually comminatory chuiacter of these legislative arrets of the French King. Aiu'ain. there was no need of the second of the arrets ii{ Marly, to authorize the re-union to the do- main of a Seignior, of any lot of land not cleared and and .settled on by the ce«s2onic withf press (n'rct or irst of the two s to point out tlioreaftir ful- 'I'bo Attorney Governor and ijiL'tial and ex- to take cogni- linii.fcnt of the I, were to pro- utive, and the 1 and Finance such Ordon- [ind trace, by as ever really for the escheat idence of the lese legislative second of the on to the do- ot cleared and illy with the ii> grant was Sesides, in all but the earliest grants of Seigniories, tha Crown had systematically bound the Seignior to enforce resi- dence by the express terras of his contract with his eub-grantees. And beyorid doubt, clauses to that effect were always put into the grants to censitaires, with that view ; ard whenever appealed to (as they often were) were at all periods ri^'idly enough en- forced. All that this ffl?ve< of .Marly had to do, was to provide a short and easy mode of enforcing this obligation. And it did so, most decidedly. No prosecution in this case by an Attorney General, or before a Governor and Intendant who must agree in judgment in order to act at all. Properly speaking, no prosecution at all ; for tho party complained of need not be (sometimes, was not) so much as sum- moned. On the mere certificate of tho Cur4 and Captain of the Cote, tho Intendant—acting alone, summarily and with no appeal from his decision— was to do all the justice that that kind of case was held to need. But for the other of the three procedures contem- plated by these arrets, the case was dilFerent. It was an extraordinary procedure. Tho Crown had made grants ; the lands granted were the seignior's, —and he alone, of course, could sub-grant, or in anyway alienate them. Here, tho Crown in effect said to such seignior — the seignior holding, the while, un^ler the Crown's grant— you arc to make a certain kind of contract for the alienation of this land of yours, whenever you are called on so to do ; a.id if you re- fuse, tho Crown (on complaint of tlic lefused party) will do it in spite of you, and in so doing will by tho way practically escheat— not your whole grant— hut tiiat particular part of it which in each such case may so bo dealt with. Till, by its arret here in question, the Crown had said this, it was impopsible it could have done it. Hefure 1712, there could have been no enforcement of a description ot control over the seigniors, whieh to that date had never been so much as thre;itcned. After 1712, then, how did the caso stand ? How- far did successive Governors and Intondants act upon this power to sub-grant in the contingency supposed ? Or how far may they not have transcerided it — have assumed, without ri;;;ht, the fir hrir^'.-r power of con- trol souglit by K:iudot, as we have seen, in 1707 and 1703, but never f^ranted by tlie King ? I find mention in tho 2d Volume of the old Edits S Ordonnanrcfi (p. xxxiii) of an «/■;•; widow Petit to be entitled to a deed of this pailjtulai iand ; and had ordered the Governor aiul 'i ftTu'j.it to grant it to her, if the Ladies o :' ■: ^loitx Dieu should persist in their resistance to her ciaim. — They did persist. — The urgent but vain efforts of the Plaintiff to bring them to a compliance are set forth at great length ; and the grant was made accordingly. It is the one only grant in the King's name, that has been lound, — made by a Governor and Intendant within the censive of a granted Seigniory. There is no other printed, — I venture to say, no other of record. It is a fact not wholly without sig-"ficance, that neither of these arrets names any rate of dues. The notion of a uniform rule as to that matter, Btarted by Raudot in 17C7 and 1708, is nowhere— save in his despatches— to be found. A third Ordonnance of an Intendant, M. Du- puy, rendered Nov. 16, 1727, (p. 180 of the same volume) has been cited, as containing an impor- tant reference to this general subject. It will be found, hovvever, that it really has none at all. The case is one of those, to which I have already made some reference, — turning wholly on the question of the date at which debts incurred during th? currency of the 7nonnaie des cartes were to be paid. Certain ccnsitort€s of Bellechasse natu.i'ly wanted to pay their dues, accrued and accruing under deeds which had been passed during that period in certain terms, subject to the reduction of a fourth, to convert them, as they claimed, in- to money of France. The Seignior as naturally wanted to be paid without such reduction. In part of his argument, which is given at great length as part of the recital of the Ordonnance, he urges that of all kinds of debts. Seigniorial dues ou6.it not lightly to be taken to come within the range of the reduction in question, " because," says he, " the King having willed in order to the " more prompt settlement of the country that the " Seigniors hrie should grant their lands at a low " price, (donnassent les terres a bas prix,) there " is hardly any land granted at more than" so much, ;ind much that is granted far lower, though c')verea with wood, and so forth. Add to which, says he, r-.shing his argument further, low as these their dues are, the Seigniors have heavy burthens to bear, for all sorts of objects of public utility ; and it is absurd to suppose that the King means them to form an order of noblesse here, as he surely does, burthened thus, and yet subject to a Jtting down of dues so much too light for such ends. But all this proves nothing ; except that this gentleman saw fit to urge this argument in a case where it really had no legal bearing. Good or bad, as fact or argument, it is his mere state- ment made for a special purpose under peculiar circumstances. The judgment did not turn upon it, — and neither embodies nor at all indicates any expression of the Intendand's notions (supposing^ even them to signify) as to the matter. A fourth Ordonnance has been cited ; rendered by M. Hocquarton the 23rd of January 1738, ind which is to be found on p.l70 of the same volume, the Ordonnance in fact which was printed during the last Session of Parliament at Toronto, as bear- ing en this question. But, like the others I have remarked upon, it will be found to have really nothing to do with it. Several /i«6i7ans of Gaudar- ville, in this case impleaded their Seignioress, the Delle. Peuvret, demanding — not a grant of lands which she had refused to make — but "iitles in due " i.'iTi of the lands she had conceded them, (litres en bonne forme des ierres qu'elle leur a conci- •' dees,) and that, upon the footing of the titles of " the other lands of the said Seigniory." Her re«- ply was, that she was willing to pass " deeds to the habitans Plaini -, of the new lands " she had granted, the same tu be taken immedi- " ately behind the first grants ot the said Seigni' " ory, — and at the cens, jv/iteo ^lul seigniorial dues " which the Intendant should please to indicate " (et aux cens, rentes et droits Seigneuriaux quHl " nous plairaregler.") Hereupon the Plaintiffs objected by their answer — and this manifestly was the sole point in serious dispute between the parties — that behind the first range of grants there was a swamp, and that their lots oug'Ut to be marked off in rear of it. To this the Seignioress in turn made objec- tion ; and here the Intendant had to decide. The Grand Voyer visited the ground, and reported. The Intendant settled the point in favor of the Seignioress's pretension ; and, so doing— and in terms of her express consent, of record in the cause, directed that the grants should be " at the " ccns rentes ordained by His Majesty, to wit :- ', one sol of cens per arpent of front, and one sol " of rente per arpent in superficies, and a capon " or 20 so/sat the choicer'' the said Seignioress, " per arpent of front." — " J •'?ined by His Majes- ty." How •? When 1 apropos of what 1 There 23 aturally on. In It great ance, he 'ial dues thin the ecaiise," er to the that the at a low :,) there han" so r, though which, , low as e heavy of public the King here, as subject to t for such :ept that ment in a ig. Good ere state- peculiar turn upon cates any iupposing^ rendered 1738, And e volume, ed during 3, as bear- ers I have ve really jfGaudar- ioress, the it of lands ties in due em, (litres r a conci- e titles of ' Her re- ig to pass new lands 1 iminedi- aid Seigni- liorial dues o indicate •iaux qu'il 3 Plaintiffs manifestly 3 between rst range and that r in rear lade objec- cide. the id reported, vor of the Ig— and in ord in the be "at the y, to wit :- ind one sol nd a capon Seignioress, r His Majes- bat •? There is hothing to show. It may have been, that such orders had been sent out, in reference to grants en ceniive, within the domain of the Crown ; though the fact is at least noticeable here, that these rates are not those which, as we know from other do- cuments now published, were fixed for grants in the censives of the Crown, about the same period. To this consideration I shall have to advert pre- sently ; anrflpassfromit therefore now, merely observing as I da so, that it is certain that at this very period the Governor and Intendant ■were fixing variant rates of dues, not identical ■with this rate nor with each other, for censivc grants within the Crown domain ; and. that the case, as an authoritative decision amounts to nothing, because— as I have said— it purports to have been on this point a mere judgment by consent. I' or aught we know, the Seignioress may gained by it may have got higher rates than those of her older grants. Nothing in the case indicates that they were lower. One more ordonnance I cite in t! connexion ; not as making against my view, (for 1 nave ioir.ul none that do,) but as the one other, which 1 liave found, indicative of any material control exercised by an Intendant over the terms of a grant a cens made by a Seignior. It is another ordonnance of M. Hocouart. under date of the 23rd of Fe- bruary 1748, and is to be found at p. 202 of the same volume. In this case, the Fabrique of Ber- thier impleaded the Seignioress, to obtain from her a notprial deed to a iuc held by them for the last 38 years, under a billet de concession. The Defendant declared her willingness to pass the deed, but demanded to be allowed to insert in it certain clauses,- -one to the effect that the land, if ever alienated by the Fabrique, should become chargeable in her favor with a certain rate of dues, stated by her to be that of the other lands in her Seigniory, — and some other clauses of a kind not likely to have been contemplated at the time of the granting of the billet de concession. To these latter clauses the Fabrique gave no consent ; and the Intendant, rightly no doubt, disallowed them, —and directed the passing of a deed that should merely stipulate for payment of dues by any party acquiring from the Fabrique. The rate named in the judgment is not identical with that proposed by the Seignioress, as the rate usual in her Seignio- ry; the former being partly paj-able in capons, and the latter in wheat; and no reason is given for the variance. Indeed, it reads as though made by inadvei .ence. Be this, however, as it may, so much at least is clear, that this ordonnance, equal- ly with the others I have been commenting on, is not ?. case ever so remotely coming within the purview of the enactments of the arret; of Marly. I say more. I dare not undertake to weary this Honorable House with comments on every Ordonnance and Jrret in detail ; thus over and over again to prove a negative. But this I must say, after thus remaiking on these cases— the few I have found, of a tenor which has seemed to me to call for notice here,— that I have most ca.eful- ly studied every priu'ed Edit, Arret and Or- donnance laid before this Honorable House in connection with this whole subject, ?.nd every other that I have been able to find ; that I have arranged them all in order of date ; have read and re-read them all, so arranged ; have made a written abstract of them all ; and, though I will not say that the Edit, Arret or Ordonnance does not exist, that shows this procedure by habitant against Seignior, piovided for by this arret of Marly, in some stray instance to have been resorted to and carried out, I will and do say, that after every effort made I have not tbund it. I do firmly believe that it is nowhere to be found. . e.x.- a And not only do I find no piool of this procedure under this arret of Marly having ever been car- ried out. I fail equally to find a case ot the en- forcement of the after am< of 1732, which pro- hibhed all sale of wild land, by whomsoever made, under pain of nullity and escheat. Both, so far as one can see, were mere threats. I will not say they w.Tc never meant for more. But that they were no more, I cannot doubt. Indeed, that this part of the first arret of Mar- ly ha.) >o fallen iulo desuetude, is further to some^ extent evidenced by the tenor of the Declaration . the French King, oi the year 1743, to be found on pa-'e 230 of the second volume so often quoted, pf that Declaration the King undertook to regu- late the course to be followed by the Governor and Intendant, and in proceedings had before them, in regard '.o the matter of the granting ana and escheating of land. Butthe-e is not m .1, nor vet in the King's subsequent Declaration ol 1747 (p. 172 of the third volume laid before Parlia.- ment) explanatory of it,— any reference to this peculiar procedure (most of all reqmring regula- tion, one would say, if then a precedure really ever taken) for the quasi escheat of land part ot a granted Seigniory, and its grant by the Crown to Xhe habitant, prosecutor in the ".ause. It was not a pio.-cdure seriously thought about. _ I would not be misunderstood. My position is not, that the Governors and Intendants let the Seigniors alone. They let no one alone. Ihey were for manging everything and everybody ; lor not allo-.ving wild land to be sold by any one ; for not letting men of any class make their own bargainj or deal freely about anything. I dare say they interfered with Seigniors. Very likely —the arrets of Marly not coming up to their no- tion of the extent or kind of interference they were inclined to resort to,— they interpreted theni more or less to be what they were : t. Some of the arrets I have remarked upon, are indicative ot this sort of thing. And very possibly a vague impression as to what might be done by an Inten- dant in any given case, under col of his notions of t^>cse arrets, or representations as to what was the king's pleasure, may have had more or less ot effect at one time or another, in leading Seigniors to concede at lower rates or under less onerous charg- es and reserves than they otherwise would have done. The same kind of consideration, no doubt, influenced other classes of men as to other mat- ters. But such influence was no influence ot law ,, changed no man's tenure of his land ; alFected in no way the legal incidents attaching to a man s ^''S^ without any such influence operating to that end, it was impossible the rates of concession of land should have been high. By IbbJ, we h.v» sPPn that not far trom 3,000,000 ol arpents of the land now so held, had been grauled enjiej, under those of the titles of that period which still remain in force ; and perhaps twice that quan- tity hud in all been granted under all the titles 24 ■t 1 V I •l then extant. The French population, to that ■date, is stated not to have amounted to 2,500 souls. At a low calculation, the extent of the grants must have averaged something like 10,000 arpents for every family. In 1712, when the ar- rets of Marly vi'ere promulgated, the grants en fief covered more than 7,000,000 of arpents ; for a population (Indians excluded) of hardly 22,000 souls J some 1,800 arpents at least on the average for every family. And in 1760, the grants were 10,000,000 of arpents, to a population of about 59,000; or still, about 1,000 arpents to a family. Cculd land bear anything bui a low price under such circumstances l And these figjres all un- derstate the fact. For they are given without re- feience to the large grants made beyoiul the pre- sent limits of Lower Canada, and where the pop* Illation bore a still smaller proportion to tb ex- tent of the land granted than it did in Lower Ca- nada. But low (as compared with present values) as the ruling rates always were in Lower Canada during these periods, the> were never uniform, or fixed ))v any law or rule. It would have been contrary to all ju-eccder.t, to every notion of law antecedently prevailing in the country, if they liad been. No doubt, tlic doctrine will be found laid down in most oi" the books, that the cim ^\;ts in its nature a small redcvance or due — nominal, solo speak — imposed merely in recognition of the hieignior's superiority, and mainly valuable as establishing his right to the mutation fine, known under the Custom of Paris as lodsci vcntis. And iVom tnis fact, some have thought and ppokcn, as though it wasolihc nature of the ol the iixed yearly S.'ii,rniorial dues, iipon land granted en ccnnvcAo be low and nom- inal. But it is forgotten by those who draw this mistaken inference, iluit tlie doctrine 1 have re- ferred to is by these feiuli;^ writers laid down, only with relerence to the ens, properly so called, as conlra-distuiguii^Iu-d from the rates wh'ch also formed part— and by very far the lan-erpart —oi these yiarly dues. Even, huw^ver', as to the ceas, ui France, there was no kind of unifor- mity ; and lor the auiouut and character of the rentes, no limit whatever cou bo assi'Mied to their variations. The total amount, in Franco, of a feeignior's yearly du,-s accruing on his lands inant- od en cp.KsHv, were a.-^ variant as the caprice of local cuslonis, and special conlracls, possibly could make thorn ; and as a general rule they •were ar.y! lung but low. Indeed, it has been clear- ly oslablished as matter of historical resaaich, that the ams itself was not in its origin a nominal due, hut (as the very word, eonn. rcnms, impoit>) a real and onerous tribute— li.vid in money ami Jn thecour-s,. of a-res rendered li-ht in anicnuit, by reason not merely t)f ;.dvance in money prices, but also ol tlieeuormmi.s depreciations of th-^ cur- rency that tbr some centuries dis.ruced the nistory ol 1- ranee.— Hervt', tho writer from whom I have already (pioted, and iho vvei:;ht of whose author- ity on these matters cannot be (lue.vlioned, alter conclusively establishing \\iv; historical lad, in his oili volume, lays it down (j.. 121) " riue ^^toHjiwrs ecnisaHc i>roj)ortwnm\ iiu rfritahlc ^^produil,lela rhosc acrcmh,lors(]u'on (t fait da ^vintubles baiix d cens ; cl nan pas des voiles ^^ ?vus (Cnom de buu.c dims, d qiiHl n'est point ^^ parsa nature une simple rcdevancr firlive et ho- nonfmuc ; thai ilie cens has always been pro- " portioned to the veritable product of the estate " granted d cens, when the parties have made " real grants a cens, and not sales disguised under " that name, and that it is not in its nature a mere " fictitious, honorilic due " The cens et rentes here in question, no less than the cens et rentes of old subsisting in France under our Custom of Pa- ris, bear, and ever have borne, this legal charac- ter ; are, as to amount and kind, whatever the parties may have agreed to make them ; repre- sent the consideration ol ihe grant, in terms of the contract establishing the grant. To turn to tacts. The terms of a few grants en ccnsive, made he- fore 1663, are to be found in the 1st of the volumes laid belbre Parliament, In 1639, for instance, (see p. 351) a piece of land close to Quebec was grant- ed at 1 denier, the twelfth part ot a halfpenny of our currency, per arpent. In 1617 (p. i:?) a tract of a (piarier of a league by a league in depth, was granteil at the same rate : but with Jie proviso that such rate jier arpent was to be paid "lorsquUt ''sera en vahur seulnncnt," "as it shall be brought "into cultivation oiiiy," — a curious passing indica- tion of the idea then enter:ained of tho value of tlie tvAelfth part of the coin now passing as a half- penny. Tvv-o years after, in 1G19, (]>. o^'2) land at Tlirec Uivers was granted at the enhanced rate of 3 deiiier.s jier arpent ; and in the same year (p. 311) t\^•o months latter, other land, to be taken at Three Rivers or (iucbec, was granted at the fur- ther advance of 6 deniers per arpent. These grants and some others like iheai, are grants by the Company of New France. Almcst at the same due, in 1018, I find men- tion ill the rei itals of an J^rreo, (vol, II, p. 176 Edits cl OrdoniKtnccs of 18(i(i) ol a grant a ecus by a iSei'^nior, at tho ralo of 12 d iiiors per ar|:ent of cleared or meadow land, together v."ith a quart of well sailed eels. And it may be adiled, by the way. that this gr.ait (thus early mad ) slii)ulated the droit de rctro'l, or ri;.'ht of pro-emntiou by the ^eigni •;•, incase of sale of the ho, d by tiie gran lee. I was desirous to have had it in my power to lay before lliis House somtlhing like a slalemont of the extent of range of the variations observable at different peril. 'Is an I in ditfirent parts of tho Province; but they are sj alnniat inlinite. that I scion lelt it to be quite iinpos-ible, with the very little time I was able to devote U> this par- ticular branch of research, A liiendto whom I applitfl a fiw days since to aid me iii this res- [lect was able to spend.a veiy tlioit litne in an examination of a liiniteil number of old grants in the vault!, of the I'lothonolary's olii.e at Mont- real, Taking the lirst in alpliahitic ordrr, of the names of the notaries of the old time, who!^(! mi- nutes were there deposited — that of one Adhthnar, — and strikiiigon Ihe year 1671, as remote enough to fall within M. Raudot's times ot innocence, he examined as many of that Notary's deeds as tho shoit time he could give to the matter allowed. From their state and style of writing he was iin- nble to examine many in that tim" ; but all he could examine showed an almost inciedible ab- sence of rule or usage, as well at that date as at others — whether us io nmount or kinds of diicH or as to the quantities granted, or as to the clauses and reserves attached to grants. Hereafter — so soon as time shall allow— I will establish this fact (lor it is a certain fact) beyond the possibili* 25 ty of doubt, by ascertaining and laying before the public the terms of a sufficient nunriber of these all-varying deeds. For the moment, 1 must be content to cite four ; the first four that my friend chanced to examine, and of which I hold authenticated copies i i my hands- They are of dates fall 'ng within 8 consecutive days of Sep- tember, 1674; the first, beins; of the 5th— the secoiul. of the 12th, and the third and fourth, of the 13th, of that month; in fact, I believe them to be the four consecutive deeds of concession which it was that Notary's fortune to pass in those eight days. The first, second and fourth, are of giants in Batiscan ; the third is of a j^rant either in Batiscan or Cap de la Magdeleine. F^iiher Seigniory belor ged to the Jesuit fathers ; pre- sumably not thn most exacting, or irregular in procedure, of the Seigniors of the time. The first of thess grants is oae of 40 arpenis by 40; 160) square a pents. Th<-ye£ily dues are stdted-dl 30 Livres Touniois. 10 capons, and 10 dcnicrs {\£n twelfths of a half-poiiny) oi cem. Valuing the capons at 15 sols a piece— the money rate per aip.jnt is som^nhing over half a so/— sornKthmg over a farthing of cur currency. The second of these grants is of 4 arpenis by an unstated depth; tht rate, 1 sol Tournois per arpont, 1 capon per 20 arpents, and 4 ikiiicn ('. ofahali-p^miy)of reus: in all-upon the same valuation of the capon-about 1 a so/s p. r arpont, iTiore than lieb.e that of the grant of the week before. The third is of 2 arpents by 40 ; the rate, as thoui^h the parties had not liktdover twice ii tlie rule any where, "one Would expert to lliid it. Five oi' tliese grants fiom 17;M to 1750,(V()I. 1, p. ^.7and Vol.1, p. 242, 213, 247, 21^, and 21i») are at the same rate, being all grants near Oelroif ; but it is not the rate suggested in I707 by llaudot— but one mate- rially higiuM, and this, tliough (he land granted Was so far back in ijie wilderness. 1 his new rate is 1 sol ofccnn per arpent of front, 20 «o/,s for every 20 arpt'iUs gf e.xleut, and a (luurlor of a miiiot of wheat per arpeni of front by 40 arpents. A sixth grant at the same place, in 1753, (Vol. 1, p. 252,) is made nominally at the same rale, but the depth being 60 arpents the real rate per arpent is, so much lower. A seventh — of the Isle aux Coch- ons, in Laice Erie — in 1752, (Vol. l.p. 251) is made with no reference to this rule, at 2 sols of cens, 4 Livres of rente, and a minot of wheat, for the entire grant — 20 arpents by half a league. The eight and ninth of these grants, are at Port St. Frederic, in'l741 and 1714, (Vol. 1, p. 245, 246,) and the rate is an advance — not inconsiderable, ac- cording to the notions of those times — on tiiat of the 4 grants at Detroit first referred to. It is 1 ,so/of ccns per arpent of front, 20 soli of rente per 20 ar- )ients, and half a minot of wheat (instead of a (|uarter) per 40 arpents. And the tenth grant of the number, at La Presentation, in 1751, (Vol. 1, p, 250,) being of an arpent and a half square, for convenience of a saw-mill built by the grantee, is at 5 sols of rente, and 6 dcnicrs of ccns. No observance, therefore of a fixed rule, even in the ccm^ive of the crown ; the Governor and Intendant, granting ; and through tlie period pre- sumably that of the nearest approach to regularity of system ever attained under the French Crov- ernment. In truth, uuilbrniity of rule and absolutism have very little to do with one another. We have seen already that even in the 4 cases, between 1713 and 1727, in which the Governors and Intendants at- 1em])le;tes prior to 1760, made in 18 Seignio- ries. And these grants exhibit some 40 variances of rati', in one Seigniory alone or 7 of the.-e va- riances are shown ; in another, 5 ; in several others 2, 3, or 4. Ikil to wliat end heap proof on proof, of a fact 60 certain, — so everywhere patent on the face of every document wehave. that at all refers to it ; of a fact so consonant with every pn.bability arising out of the antcceilei ' law of the land, — so certainly made known as a lad, to the Ciovvn by its Governors and Intendants, — so certainly reco- gnized and sactioncd by the Crown { There can nolbing be proved, if this is nott 26 u I* V h I pau to another consideration. I said, not long since, that the Seigniors, if at all more con- trolled by the authorities that the law warranted, were at all events not the only parties so control- led. But that is not all 1 must say. They were the parties least so controlled. Why, the very obligation imposed on so many of them by their deeds, was an obligation to aid in controlling the class below them, — to compel that class to live on their lands, to reserve oak timber for the King, and so forth. Before, as well as after the arrets of Marly, > le grants made to that class were cons- tantly escheated for failure so to settle them. — The complaint of the Intendants was, that the Seigniors were only too little zealous in enforcing this control. The an-e/s of Marly threatened a penally hard of enforcement and not practically entorced against the Seignior, and for the censitaire ; but contrived the shortest and most summary mode possible — a mode constantly resorted to-of enforcing its penalty against the censitaire, and for the Seignior. The arret of 1732 pretended— not to annul simply a Seignior's sales of wild land, — but all such sales made by any one. If ever enforced, we may take it for certain, that the censitait's^ sales •wonld not have been the sales to escape the for- feiture. The censitaires were not then the powerful or favored class. Even where favored, it was seldom to an extent that would be thought much of, in days like ours. For example, in 1706 (I refer to p. 35 of the se- cond volume laid beibre this House) Mr. Raudot was called on to interpret a clause, general it would seem in the grants made by the Seminary, in their Seigniory of Montreal, (and in those days, by the way, not uncommon elsewhere,) by which that body had reserved to themiselves the right to take without payment any quantity of ■wood they pleased on their censitaires'' land. The Seminary expresly consented, as a favour, to limit this reserve to the right of cuttin? down for their own fire wood one arpent in every sixty, to be chosen by themselves, near the clearings of the censitaires, and for their buildings or other public works any further quantity they might require. — And this offer was accepted ; and by such consent of parties, Mr. Raudot pronounced accordi'igly. At all dates, we find the Intendants strictly en- forcing the prohibition to fish against tlie htibitans, unless by leave of their Seignior, from whom they had to acquire the right — of course for value. The same strict enforcement was uniform of the Seigniors' right of banality, of which I shall have to speak more hereafter, and by virtue of which no man was allowed tc resort to any other than his Seignior's grist mill. And even as to Corvfes, or the obligation to hivoluntary labor at the Seignivors requirmeiit, notwithstanding the Ordouuunce of 1716, printed last year at Toronto (and to be found on page 57 of the second volume now before this House,) under which it has been contended that all Corvfes were then jirohibittd, — and notwith- standing the dislike of them expressed to the gov- ernment at home, in 1707, 1708 and 1716 by Messrs. Raudot and Bcgon, — not even herein was the censitaire in fad relieved. Everywhero 1 find t>i« iiL Nnv. ns Inln oV*'!! «? 1723- ^SCO p. 85 of volume 2,) I liiid an extra day of cori-^e ordered by the Intendant, for all the habitans of Longueuil, on the txpartt demand of the Seignior — the censitaires not so much as summoned to make answer to the demand before judgment rendered. And this control and these interferences \vere not merely resortedto, in matters where the Seignior's nterests may be said to have dictated them. In 1709, lor instance, — I quote now from page xli of the second volume of Edits et Ordonnances published in 1806 — Mr. Raudot, whose especial , mania for interference with all sorts of people and things I have so often had to notice, issued his ukase, " forbidding the Aa6i tice of any attempt now to subject them (and them only) to its indiience,. .or rather to the influence of a system of arbitrary, despotic interference, other and far worse than that past ever inflicted on their predecessors, — such as may noi, cannot "be made to affect any class whatever, where (as with us) the law alike and equally protects all classes, all property, all rights. I proceed to another portion of my argument. I have said, that the proposition on winch alone this Bill can for an instant be defended, is the proposition, that the Seigniors of Lower Canada are not truly proprietors, but trustees bound to concede at some low rate, and under few or no conditions or restrictions ; and that this alleged trustee capacity of theirs, ifitbethe fact, must arise either from something in the tenor of the antecedent law of France, as interpretative of their position ; or from something done when their grants made, or afterwards, down to the ces- sion of this country to the British Crown ; or from something done since that cession. Unless I am much mistaken, I have shown, that alike the tenor of the old law, the terms of their grants, the action, legislative and otherwise, of the French Crown, and the whole course and character of the jurisprudence (so to speak) of the country, while under the French Crown, establish in terms the contrary proposition ; prove that, to the date of the cession, they not only were proprietors, but were even the proprietor who held by the higher and more perfect and favored tenure, — were in fact emphatically the proprietors of the favored class. Passing now to the period which has elapsed since the cession of the country to the British Crown, I believe thai my further propo- position, that nothing has been done since the cession to take from them their proprietor quality, does not require much argument for its support. I shall easily show that the history of this whole matter since the cession , is such, as to suffice of itself to assure to them that quality, with all its incidents, were it even doubtful (as it is not) how far it attached to them before. But before occupying myself with that part of my subject, I perhaps ought to offer some remarks on a point which m.'.y be said to suggest itseK incidentally, as one passes from the consideration of the French period of our history, to our own. It is this ; how tar what has been said ami written since the cession, can be suffered to aff-ct our in- ferences on this matter, drawn from what we have before us of all that was said and written previously; how far, in a word, the expiessed opinions of men of mark since the cession, can g > to prove the existence before that date, of a state of things in Canada, different from that which I have (as I think) established, by tha examina- tion of the grants, arrets, ordonnances, despatches and other documents of all kinds, of date before the cession. The truth is, that the tradition (so to speak) against which I argue, is attributable to state- ments made since the cession of the country. It nas grown lijt Since tnni periuii, ano u may not be uninteresting to show how it has ; >wn up ; and that it has done so in a manner and under cir- cumstances to attach no importance whatever to it. At first sight, indeed, this must seem tolera- bly obvious ; for it is a maxim of law, and of corn- mon sense too, that the best evidence alone ifl to be taken. If it bethe fact, that from the tenor of the law of France, of the Seignior's grants, direct from the French King or through his officers in the colony, and the legislation and jurisprudence of the country under the French Crown, one has to assign to the Seigniors ofLower Canada the quali- ty of proprietors — such as I have shown it to at- tach to them ; if this, I say, be proved by the best — the only real evidence we can obtain ; it is not necesary to show how any counter-impression may or may not have since grown up. But, evident as this is, I may be allowed, I trust, in consideration of the extent to which it has latterly prevailed, to offer some observations by way of accounting for its origin and progress. Perhaps there never was a country in so pecu- liarly false a position with respect to its traditions of its own past, as Lower Canada. On the occa- sion of the cession, the high officers who had ad- ministered the 1,'overnment left the country ; with them they took its confidential archives ; with them went, too, the superior judicial functionaries, and a large proportion of the men of higher rank and better education ; leaving behind them com- paratively few who were not of the less educated class, or at any rate of the class less capable of preserving in the country a correct tradition as to the spirit of its old institutions. New rulers arrived in the Province, not speaking the tongue of those amongst whom they came, and whoin they had to govern ; wholly strangers to their laws usages, and modes of thought and teeling ; bringing with them the maxims and opinions of the na'ion of all others the least resembling that which had first settled Canada ; not at all the men to seize — or even to try to seize — the peculi- arities of ihe law they came to supersede ; whe- ther as to the prerogative of the Frencfi Crown, the confusion of legislative, judicial and executive functions pervading its whole system, the un- certain and purely comminatory character habit- ually attaching to it, or the vast and complex detail of laws and rights of property subsisting un- der it. All this, I say, they were not likely to under- stand, or make the effort to understand. The law of England, their law, one need har('- ly observe, is essentially a law of unwritten cus- tom ; and most of all, perhaps, with regard to that particular dcscii])tion of English real proper- ty, which answered most nearly to what tney her'" found subsisting as land held en censive^ la Eni;land, copyhold property is almost entirely — perhaps I should say, is entirely and essentially — governed by unwritten customs peculiar to the different manors and holdings. The very term " cnstom" as they found it in use here, was a term calculated to mislead thom. The Custom of Paris here established, and the other customs locally prevalent in France, were not unwritten customs, like those of an English manor, or the great, general body of unwritten custom knowa as the common law of England. They were written documents, enacted by authority, — sta- itiicnrj lit r-iig'i!rM j — «-* ; Indeed, in Canftda there was even less of resort to unwritten usage, au regarded the terms of the 28 U holdinff of censive lands, than in old France. In France, undoubtedly, in many cases, rates of cens and other dues could only be traced back to local unwritten usages which, as it were, supplemented llie known written customs of the land. But in Canada there was no dark antiquity to peer into ; .here every thing was new, had had its origin VTifhin a date that could be reached; every grant «ce;is was by an authentic instrument, the pre- cise tenor of which could be ascertained ; or if in Ijarticular instances it happened that this was not lie case, it was merely Ihat the parties had trusted ■ach other's faith, and so entered into a coitract u'hich they might possibly have some practical :lilhculty in proving and enforcing to the letter; but the terms of which were yet to be ascertained and enforced in all such cases, as well as might he, in common course of law. All this, I repeat, was not calculated to lead to a very correct first impression, on the part of these now rulers of this country. Inclined naturally to see in the Canadian Seigniory an English manor, and in its ccnsitairc^ a body of l':nglish copyhold- ars, it was not possible for thorn to'avoid attaching uo much weight to the notion of customary rates uid obligations, and too little to the terms of the ictual contracts. They hardly could realize how entirely in Canada the existence of these written laws and written contracts dispensed with— jire- Muded one might say— refurcnce to unwritten cus- tom in this class of cases. And this was not all. Tf they liad been ever so disposed to study Canadian law,— as they wore not, they would have found it hard to do so to much purpose. Books of such law were not plcn- .y to their hands ; not of inviting bidic, or styler )r language. Of the model treatises on French law, to which at the present day lawyeis of all •ouniries resort, by far the greater part did not I). Ml exist. What books there were, were the )!il.'r, larger, in every sense heavier volumes, of 111 earlier age. They were little likelv to find vaders in men, inclined neither tolancy'theiihin- iii;!ge nor their law. The Proyinoial records, moreover, as I have -aid, were in the same tongue, in a hand-wriling inl easy to deci))her, imperfect, in disorder; and III re were few or no persons in thecountrv, like- y much to help the authorities in the atlenipt to iii'l out what they amounted to. Besides, the first Courts in t!ie country, alter tiie •ession, by courtesy called Coiuls of law, were nilitary Court.--, made up of soldier-judges ; and as. lo doubt, it is true that the lawyi-r is ajit to bi^ an ndiflerent soldier, it is no less true that the soldier k s apt not to be much of a lawyer. J And even this was not all. These Courts thus set to declare and administer the law of the lands were set to(leclare and administer they knew not !u hat law. Tlie general impression with the new, HiikHsIi ruling class, of course Mas, that a great J leal of English law was to be introduced; and it was a (piestioii thai no one rould answer, how tar I l''rench law.how far Knglish law, how far a 4ifiiixluie of the two in some way or other to be nKvorked up, was to be the rule. ) ll w-as under these circumstances that an arret, ^ ;nc oniy One oi liur kind which I fined cited, as } naking against my clients' interests, and of which t I have now to spenk, was rendered. I refer to I he arret of the 20\\\ of April 1762, printed on the I last page of the fourth of the volumes laid before this Honorable House. It purports to be taken from the Register of arrets of the Military Coun- cil of Montreal ; such Council composed of Col- onel Haldimand, the Baron de Minister, and Cap- tains Prevot and Wharton ; lour highly respec- table officers of Her Majesty's army, I have no doubt. And it reads thus : — " Between the sieur Jean Baptiste Le Due, " seignior of Isle Perrot, appellant from the sen- " fence of the 31ilitia Court {Chanibre des Miliccs) " of Pointe-Claire, of the fifteenth March last, of the one part ; — " And Joseph Hunaut, an inhabitant of Isle '"■ Perrot aforesaid. Respondent of the other part ;— " Having seen the sentence appealed from, by " which the said sieur Le Due is adjudged (con- " damic) \o receive in future the rents ot the " land which the Respondent holds in his seignio- " ry at the rate of thirty sols a-ytar and half a " minot of wheat, the couit not having the power " to amend any of the clauses contained in the "deed of concession executed before Maitre Le- "pailleur notary, on the 5th Aug, 17JS; the peti- " tion of appeal jtresented to this Council by the " said sieui Le Due, the Appi'llaiit, answered on " the H)th March hist, ami notified on the 3id inst. ; "a writ'en defence furnished by the Respondent, "and the deed of concession referred lo ; and " having heard the paities ; — " The Council, convinced that the clause in- " serted in the said deed, which birds the lessee " iprcncvr) to pay yearly half a minot cf wheat "' and ten sols for each arpent, is an error of the " notary, ///c vfucl rate at xcliuh landa ura grunted " in t/iis counlnj bdin; one sol for cuili urptnt in " s}ij)crfiric>i (tnd'ludf it inlnol of u'luid for cadi " (frpcU infronlby'lHcn'y in depth, orders that in " future the rents of the land in quostion shall be " paid at the ra'e of filty-fourso/s in money and a " minot and a half of wheat a-year." Now, what is this judgment worth ? Four gentlemen, not lawyers, reverse a sentence which evoiy hiWyiT must sny was perfectly sound and right; and condemn a ccisilairc, v\ho by his wiiHen contract was to pny ihiity .so/s and half a minot of wheat only, to pay fifty four so/v and a minot and a half of wiieat ! The court below had mninlained the contract; the Seijinior for some extraoidinnry reason, hud appealed ; and, what is more extraordinary, the court miiint dn- ed the appeal, — not, ije it obs.irved, reducing the rent hut raising if, so as actually to give the Seig- nior more than his wiitten con'ract established in his favor. Ar.d they did this, not on pioofol cir- cumstances, showing the deed to have been wrong, as they took it to be ; but merely on ihe ground of the supposed existence of a cu tomary rate so fixed and invaiiable us of itself to piove the clause of the deed an error. And this, in a deed of 4 I years staiitlmg! And though, ns we have seen, at all times, as well after as before the time '^f its dale, all manner ofvuryinir rates had ever prevailed — the Governors «nd. Jutendantg themselves testifying. And though the very rate which they coolly declared to be the ore legal rtite of " conremons in this country," absolutely was not so much as one of the vurious rates which 29 we know to have been prevalent, even in the Crown ceiMves immediately before the cession I have shown that most of the Detroit grants of the Crown, at this period, were made at a nomi- nal cens. wi h ii sol of rente per arpent, and « quar- ter of a mlnot ot wheat for every arpent by forty ; some, however, fixing this same quamity ot wheat for every arpent ^y sixty ; and I have shown that there were Royal grants during the same period at Fort St. Frt'deric, where the ratr' was the like cens, the safp.e sol per arpent, and the half of a idinot of wheat, per /o/7)/ arpents And we have here the di'claratioii {par par en- these) that any rate below the yet hiaher alow- ancti of a half jninot per twenty arpcnts, is so re- pudiated by cusiom, that ihough stipulated be fore notaries torty-fjur jdars ago, a Court of law is to pionnuiife the dec-d wronS) and raise the ratii to this new siandaid. The jud^nn.^nt is merely as unjust and mistaken from first to last, us its authors could well liave made it. It furnishes onp fiuther proof hat in fact there was no fixed, known rate of concession; audit proves, for all matters presently in issue, nothing more. To return, however, to tlie matter more imme- diately under consiJeralion — the question of the rise and progress of the mistaken impression which has grown upas to the existence of this sui)|)os('d fixed rate, and so forth. Till 1772, I am not aware of the a))pearance in print of any work i)urportuig to set forth the te- nor of the old French laws and customs of Ca- nada. There was then jirinled in ijondoii, for Parliamentary purposes (I'arliameiit being then on t!;e point of discussing what became tlie Que- bec Act of 1774) a n.'markably well drawn, thougli short, abstract of those laws and usages, which had been seiii home by Covernor Carlelon, liom a draft prepared Ijy .i committee of Fiench Canadian gentlemen. About the same lime there appeared also a publication by Mr. Maseres, who had been Attorney Ceneral here some years pre- viously; and which contained, not Jndeed any- thing like a connected statement of Canadian law, but several papers anil documents having more or less bei'ving o!- f^anadiau law, and a.> a whole, of considerable interest. The ouier puL)lications of that time, connected with the discussion aJ' the Quebec Act so far as i am aware, were not of u knid to call for mention ; as they hardly, if atall, tended to throvv light on any [xniilof present in- terest And it was not till J yeais later, in 1770, that Mr. Cugnel's well known (il'ougli now ra- ther scarce) treatises — valii.ihle, though much loo short and slight of conslruction — was published in this country. The imperfection and inaccuracy of statement whii'h more or less mark uU ihe«^e works, in re- lerence to the present subject, I shall have lo note presently. For the moment, I observe merely that they appeared after a lapse of from 12 to la years alter the cession of the country to the Brit- Isli Crown ; that wittiin 3 years after that event the King's Declaration (of 17()3) had assured His Majesty's sul>jects of the inlioduction, as nearly Bs iniLlil Ijo. ot (he laws of KnijianiJ • and thai about the same turn; it had been oideied that tiie f;iautin^ of Crown Lauds lu Oanadu was to be in ree and coininoii socca^e, that is to Kay, under pel the English law. All this time, therefore, pecpl were kept inuncertamty as to the very existenc of the old laws of the land ; besides that thev had had hardly any means of ascertaining (had the, wished it ever so much) what tliose laws were Of the Seigniors, in particular, few held eventhe ti; ties of their Seigniories ; and many, no doubt, ha^ never seen them, nd had no kind of knowledg of their terms. To those who are not famiU with the law and usages of this part of the Pn vince, it may seem strange that people should n be in tlie habit of keeping their own deeds. Br it is well known, to those who are, that such the case. Deeds are passed, as maltev of cours< before Notaries. — public functionaries, who pr serve the originals, and whose certified copies such originals are always authentic, provin themselves in all Courts of law, whenever pr duced. In the same way, copies of a Royal gra or other public document, cortilied hy the pro ofiicer, .serve every purpose of an original. Thu nothing is commoner than for persons not to kee what rue would call their most valuable papers ; it is not uncommon for them to become sliange ignorant of what they contain. There is even peculiarity in the positionof a Seignior, that mak' tins habit one into which he is peculiarly apt t fall ; for in all those clas.se-s of action which Seignior ordinarily has to institute in maintenanc of his rights, he is under no necessity of showin his title. It is enough, if he a'lege and show hiir self to be the Seignior ^/c/itc^tf in possession such and such a Seigniory. Under all these circumstances, I repeat, ther can be no wonder that the tradition which gaine ground in the popular mind, should have been tradition wide o| the truth. It would rathe- havi been strange, if the fact had been the other way for the mass of the people, ihreatened with th loss of their lav\s and languag(;. and app.ehen sive even for their faith under the rule of Strang ers alien to themselves in all the.se res|ect; world naturally incline to cherish too favorab nolioii.'^ of the past ; and the more educated cia es would as natuially share, direct, develope an intensily this feeling. The juist could not be r memberedas it was ; was painted of briffhte. il than the truth, i's bad foi>^'oit>,ii ; good, ihal ii uc or had, attributed to it. Till .he limes of the discussion of the Quebe Act, however, we have i othing to show satislu torily.hiiw this particular niatt(;r was deall vvit or .spoken of. Let us see how the writers of lb time treated it. Maseres has been spoken of as an authority A the since current impicf'sion. The first doc ment in his book (the book I iiave already me tioiied) IS a draft of u Kejiort drawn hy him, whi Attorney (Jeneial in I (()J>, and profjosed by In for adoption by the (iovernor ainl ivxeduiveCou cil, — but which was not by them adopted, — ( " the state of the laws and the uilministration justice" in the Province. In the main, il is strongly written ex'/^'wr of the evils arising out the then e.vistiiig uniertainly as to tlie stale the law — as between ihe coiirtieliiig French ar Kiiglish systems ; and tlie writer argues ubly air iorribly iii j'avor ui itn entlrciy difurent [/(iiir" for their removal, fium that adopted by Ihe Qu bee Act. All that lie says on ihe point here ui der discussion, in this document, iiidetd the onl 30 'I h I a u t\ C :h, VT K L'i >: :h ' di iir i lb. lU SG ar t 'a J :1 r upon their " little portions of land, which were not sulficient " to maintain them, and to oblige them to i^-t " about clearing new lands (of which they had a " right to demand of the Seigniors sufficient qiial- '' ilies at very easy quit rents by which means ' they would provide better for their own niuin- " tainance and become more useful to the j)ublic. " But no\v this law is entirely disrogaided : and "the children of the freeholders all over the Pro- evince settle upon their little portions of their lather s land, of thirty, twenty, and sometimes ol ten acres, and build litttle huts upon them, as " if no such law had ever been known here; and " when they are reminded of it by their seigniors and exhorted to take and clear new tracts of land, they reply tiiat they understand Ihut by the English law every man may build a ; use upon his own land whenever he please?- lei r:^l!!hif!!iv n\ building bv lutbitans on lands of less'sizt than an arpentanda half by thirty or foriy, of which! have already spoken. Vet even this latter ;aw ii loosely and inaccurately paraphrased : and the ■added sentence, relat.ve to the sale of land when- ever division had to be made between the "song" of a deceased proprietor, formed no part of it,— indeed, — never was the law, as it is loosely stated to have been. It is manifest that this paragraph was written argumentatively, for an en^ quite other than that of precisely stating the tenor of the old French law on any of these points, indeed, with no care for such accuracy, and as an inevita- ble consequence, not accurately. Even as it stands it fails to indicate the notion of a uniform rate. And, loose as it is, it is i :t at all borne out by facts, by the known tenor of those documents of the antecedent period, which embody the laws at which he g ances. I pass to the abstract of French Canadian la'v, of which also I have spoken, sent to England by the Governor, and there printed in 1772. In this work is to be found th., tirst distinct printed men- tion that we find, of the Jrrets of Marly of 1711, And it occurs (on p. 25) in precisely the connec- tion in which, according to the view I have takea of this whole subject, I should expect to find it ; that is to say, it occurs at that part of the work which treats of the limit set by the Custom of Paris to the right of the Seignior to alienate in any way portions of his fief, without ihe incurring of mutation fines in favor of his Superior Lord. That limit the compilers of this work correctly state (as I have already done) at the two thirds of the whole extent oiiheJi>f; adding, still correct- ly, that if that limit be exceeded, the party ac- quiring will at once hold of such Superior Lord — of course on payment of the proper fine. This ex- plained, they add : — " It is to be observed that this prohibition by " the custom to a'ienate more than the two- " thirds, is no obstacle to concessions tending to " clearance, because these are rather an ameli- " oration than an alienation of the part of the ^' Jief. Accordingly, the Sovereign, by an arret "of the Council of State of the (ith July, 1711, directed the Seigniors of this Province without re- " serve, (a ordonnc mix Seigneurs daiis cette Pro- " vincc sans imrune reserve) to concede the lands " which should be demanded ot them ; in de- " fault of which they were to be conceded by the '■ Governor and Intendant, and reunited to the " King's domain. On page 29 of the same work, the compilers speak of the tenure en cen^iive. And here, if indeed they had known of any uniform rate, or even fixed maximum of rate, tor grants under that tenure, they weie bound to scale it. But they do no such thing. All they say is this :— " cens, cen- " sive, 01 fond de terre is an annual payment " which .s made by the possessors of a heritage " hel ' under this charge, to the seigneur censrcr, " that is to say to the Seignior of the fief from " which the heritage is held, in acknowledge- '' menl of his direct seigniory (direde Scigneurie.) " This due (rtv/cjv/ncc) consists in money, grain, " fowls or other article s in kind (lutre cspicc.) No hint here— none throughout the work — at any limii or restriction whatever. On page 13, liowever, of a subseqi.rut part of ihe same volume, consisting of a recital ol im- portant arreti, &c.. the King's Ordonnance of 1745, so often mentioned, prohibitory of buildinga on lots miller a certain size, is of course given, a» an important part of the old law. And further on, upon page 2 of the last par' of the volume, and i 31 II 11 II I. as introductory to a resume of what are printed as the Police Laws {Loix de Police) in force be- fore 1760, occur the following remarks, indicative of the importance attached io that Ordonnance as part of the past public laws of Canada : — " The laws of which we here give a synopsis " were generally followed, with the exception of " some few articles of Utile importance, which " were changed by later laws. It were to be " wished for the general -good of the Province. " that government would insist on their execu- '• tion. The non-observance of some of them for '* nine or ten years past has already caused con- " siderable harm as to the clearance ollands ; and " without desiring to enter into any detail, we " can testify that the mere nou-enforcement of " the arret of the Consiil d>Etat of the 28th " April, 1745, is one of the principal causes of •' the dearth which we have suffered for some '' time past. That arret prohibited the habitants " from establishing themselves on less than an ar- pent and a half in front by thirty or forty in depth. It was enacted because children in di- viding the property ol their parents established " themselves, each on his portion of the same " land, insufficient for subsistence ; a practice " hurtful alike as regarded the subsistence of the *' towns, and the clearance of the country. The " former government considered this matter so important that they caused to be demolished all houses built in op|)Osition to this arret ; not- withstanding which nothing at present is so " common as establishments of this sort." Following this introductory notice, and printed at the head of these Loix de Police, are the two flrreisof Marly of 1711, and the arret of 1732, prohibitory of all sale of wild land. The compi- lers hnd no nerd l.i snj- p:r,tirukirly, as to tiirse, that since l/bu ihcy nuu noi ueen enforced. There had been no court or functionary vested with the powers of the Governor and Intendant of the old time, to enforce the first ; and no captains of the Cote, to do their part towards carrying out the lummaiy procedure enacted by the second. And as to the third, it would have been strange indeed, if Under English rule wild land would have been thought of, by any Court or Judge or functionary, as an unsaleable commodity. Cugnet, then, is ihe remaining writer of this period, of whom I have to speak. And the passage from his book, in relation to this mallei, (pages 44 and 45 ol the Loix disjiefs) reads thus : — " The rules of concession, (les reglcp.de conceder) " in this Province are 1 sol ofcen- for each arpent " of frontage, 40 so/s tor each arpent of frontage " by 40 of depth in Argmt Touriwis, currency o( " France, 1 fat capon lor each arpent of frontage, " or 20 sols Tournois, at the choice and option ot " the Seignior, or one halfn luot of wheat for each " arpeiii by fhe depth of 40, as seigniorial ground " rent, (de rente J'onriere ct seigneuriale) in'iiu'iing "the other seigniorial rights, (compris lesavtrcs "droits seigneunaiix) ; and this in consequnnre " of litles ot concession that ihe iiiLendants ^ave nihe iidiiie ui The king, on the lands conceded in the king's Censive.'' " There does not appear (i^ ne parait point) in •' the archives any Edict of the Kintf , which fixes "the seigniorial ccng«/ rcnici that the Seigniois *' are to impose. Ihese ruloe g.ew up by usage. " (Ce» regies se sont Stithlies par Vusage.) The king " conceded thus the lands o(habitans in his cen- " sive ; {le roy a concede ainsie ks terres d'habitan* " dans sa centive ;) and there will be found true "judgments only of Intendanta (deux jugemen* " d'lntendans seulement) which confirm this " usage ; the one of Mr. Begon, Intendant, of the " 18th April, 1710 ; and another of Mr. Hoequart, " also Intendant, of the 20th July, 1733. Besides, " the lands are not conceded at one rate {ne sont "point concedees egalement.) They are in the " District of Montreal at a higher price than in that " of Quebec ; no doubt, because the lanas of Mon- " treal are more valuable (plus avantageuses) then " those of Quebec. These two judgments relate " to lands in the District of Quebec." This passage, I am aware, — far as it is from really stating it, — has contributed a good deal to- wards the formation of the popular belief in tho existence, under the French government, of some uniform or maximum rate. I remark, however, that it bears date 15 years after the cession of the country ; and, whatever it may purport to say, can be no good evidence as to what was the fact before that event, — the do- cuments of the time itself existing, and making full proof to the contrary. But what, in truth does it say 1 — That the rules of concession in the Province — or rather that the ruling rates of concession in the Province, (for this latter expression, though a less literal transla- tion, is certainly that which better gives the mean- ing of the French words used,) are so and so ; and this, as a consequence of the r".tes of grant in the King's censives ; there is no edict of the King imposing obseivanoe of them on the Seigniors in their grants to their censitaires ; there are but two jiidirnii'rilii of Intt'iHiants, coritirmatory of the usage prevailing in that behalf, which, moreover, was not uniform, — the rates in the District of Montreal, luling higher than those in that of Quebec ; and lastly, these two judgments are as to land in the District of Quebec. But this is in effect to say, that though there had come to be ruling or prevailing rates, there was no uniformity, no fixed rule, no enacted maxi- mum. Let mo note further, that in giving these ruling rates, as they are here given, for ^he grants in the Crown domain, Mr. Cugnet has unfortunately not contrived to be accurate. He was evidently not aware of the extent to which (as we now know, from the papers lately printed on the subject) these rates taken up by the Jntendants varied, ac- cording to circumstances of place, time and other- wise. He has given two rates. One of these is the rate named in the ordonnance of the 23rd of January, 1738, on which I remarked some time since, (p. 170 of the second of the volumes laid before this House,) and by which M. HocqUart — the iSeignioress interested having fyled her consent — named a rate for certain grants theretofore made by her in her Seigniory ; but this, as 1 then stated and must now repeat, does not appear from any of the printed grants of land within the Crown censives to have been a rate ever lollowed in any of those censJyM. The other is that of the two Point St. Frederic grants, on which also I have remarked ; but 1 have shown from the documents themselves, that this last rate was by no means the only rate of the period, even for Crown grants 32 k} 3 C i l! i 11 2 |l '■■■ M ' U - [\ i r li; I ] I en censive ; that it was higher than those of the Detroit and Lake Erie grants of the same time, — and this, notwithstanding the fact (shown by M.M. Beauharnois and Hocquart's despatch of 1734— on p. 28 of vol. 4,) that in 1734 the King's sanc- tion had been specially asked — and presumably obtained — for one of these Detroit rates. Not aware of these facts, and writing with no great ef- fort at precision, Cii^net has fallen into error. I say, not writing with much elTort at precision. And this, — apart even from tlie mere looseness of his style, and the inaccuracy of statement which I have noted, it is easy to show. Ho speaks of two ]udh a billet d" concession only had been granted. The Intendant did so and in so doing ordered : — Trem- blay to take a deed for the part left to him, at Ihe rate of 2 ) sols, and canon or 2iJ so/s at the choice of the Seignior, for each arpent of front by 40 of depth, and 1 sol of cms for the C arpents of front. Why this rate was fixed, there is nothing to show. It may have been the rate stated in the original billet. It may he.ve been the rae stipulated in the deeds of the adjoining lands. It may have been the rate specially ))raye 1 for by the Sr;ignior. — There is no word of its being a usual rale for tiie whole country. Besides, it is positively ''oes not answer to either of the two rates styled usual, by Cugnet. So far from giving color to his notion, that two rates were usual, and as such enforced on Seigniors by the Interdant, it shows the precise reverse, — that the Intendant here sanctioned quite another rate. It n Imits of remark — merely as an indication of the temper of those times, — that the judgment seems to have been an ca;/j(/r/e order, on a Seignior's application ; the de- fendant cendtaire, half of whose gr-mt it took away, not being stated to have appeared — or been summoned toajijiear. Of the other judgment cited, under date of the 20th July J 733, i ugnet gives short abstract, (p. G4 of his Extraits,) just long enough to siiow that is also is no case in point. It is printed au long on page 157 of the second Volume lately laid before Parliament. In this instance, the Seignior of Port- neufgo an injunction against a number of his Cfn- sitaircs, ordering them to t.ike titles for their lands; but not ut either of the rates mcnti.incd in Cugnet, not yet any one ot those now known to have been stipilated at the time in any of the censives of the Crown, nor answering to those fixed in the case just mentioned. Indeed, the command is in the alternative, so that one cannot precisely say what terms were order'-d. The Seignior had produced two old deeds of concession, granted in his Sei- gniory ; the terms of which are not stated though it is apparent from the recital, that they embodied a clause stipulating corvccs or the performance of labor for the Seignor by the censitaire, and also payment of an eleventh of all fish caught by the censitaire. And the injunction granted on his ap- plication, against all occupants of lands in his seigniors who had not taken deeds, was this ; that they should forthwith take such deeds, either on the terms of these two deeds {corvccs and all) or else at the rate of 30 sols and a capon jier arpent by 40, 6 (lcniersoicen% and the eleventh of all the fish that they m.ight take : a rale certainly not accordant with any one of the many I have yet had to particularize. Is more jiroof wanting to show that the tradition of a fixed or known mcximmn r-ile, is not to be maintained on the authority of.AI Cugnet'? Fifteen years more are to be passed over. In 1790, we find the Seigniorial tenure and its pro- posed commutation into that of Free and Com- mon Soccage again— and this time somewhat se- riously— taken up. Jpropos of this discussion, we have several documents, printed in the third of the volumes taid belore Parliament ; a report of Mr. Solicitor General Williams, addressed to the Committee ot the Executive Council ; a document drawn up by Mr. DeLaiuuidiere, and laid before tiiat body ; certain resolutions of the Council on the subject ; and the dissent and reasons of dis- sent of Mr. Mabane, a member of the Council, from those resolutions. Tile lii St of these documents (see p. 30 of the English version of this volume) refers to this mat- ter of the ^rre/s of Marly and so iorth, in lan- guage that has been cited as furnishing import- ant evidence of the existence and amount of this fancied fixed rate of dius. I cite the words ; — " By one of the ./^/ rc/.s afoiementioiied of the " 6th J"iy, I7l I, the Ciantees were bound to " concede lands to their Subfendatories for the ^' Ui\x'd\ censct rentes et redcvancess, and by the " ./ly^rcf of ihel5t!iof March, f732, upon non- " comnliance on the part of the Royal Cianlcc, " the Governor and Intendant were inipowered " and directed to concede the same on the part of " the down, to the exclusion of the (iiantec, " and the Rents to be payable to the Receiver " General," r/ow, ill this short sentence, there are two ob- vijus inaccuracies, such as one could hardly sup- pose that a man of high official and professional standing could have made. First, there is not in the iirret of 171 I , as we have seen, a word about '■ nsual ecus et renter ef. redivanccs ;'^ but only a requirement that lands be granted' d litre de re- devance," enforceable in a prescribed way, and in no other. The very woids " ccns el rentes" do not appear in it, any more than the word " usual." Next it is not the arret of i732, which gave the power spoken of to the Governor and Intendant ; but the first arret of 17 i. I continue. " The Grantees are thereby also " restrietcu from seliing any Wool Lands (bois "debout,) upon pain of Nullity ol the Con'ract "ol Concession, a reunion of the Lands to the " Royal Domain, and Restitution of the purchase " Money to the Subfeudatory." 33 la § A loose and again inaccurate paraphrase ; as it conveys the idea that only the grantees of the Crown, or Seigniors, were prohibited by the arret of 1732 fronn selling land en bois debout ; the certain fact being, that all persons, " Seigniors and other proprietors," were alike prohibited from so doing. The writer proceeds— still on the same page :— " By the ro/jirc Tenure, the Grantor, whether " the King directly, or his Grantee en fief me- " diately, stipulated a specific Sum (one half-penny '' for every acre in front by forty acres in depth) '• payable to him by the roture Grantee annnally "on a fixed day, & at the Seigneur's MansionHouse " for what is termed cens, evidencing thereby that " he was the Seigneur censier et fonder, or im- " mediate Seigneur of the roture Grantee, marque "de la directe seigncurie: a specification indispensi- " bly necessary to intitle the Seigneur to be paid " the lods ei rentes upon every subsequent alien- " ation of the Land granted, {cens parte lods et " ventes), and another specific Sum (one half- " penny for every superficial Acre contained in " the Grant) for what is called rente. In the " towns of Quebec and Three Rivers, the Re- " servation of the censct rentes, for small lots, are " viiriable and very low, but specifically ascer- " tamed." Thus, in two parentheses thrown in by the way into this one sentence, without if, or but, or qualification or alternative of any kind, we have here Mr. Solicitor General Williams's confession of faith in the existence of a one fixed unvarying rule, first as to the cens, and next as to the rentes — for all the Seigniories in the land ; the towns of Quebec and Three Rivers alone excepted. Every censiVegrant through the country, out of Quebec and Three Rivers, alike ! And at a rate, not squaring with any one of all the score or so of variant rates that I have had to cite, as in turn, candidates for the distinction of being the one true rate. Yet, with all the certainty there is, of the existence of all these variances of rate, this loose sentence of Mr. Solicitor General Williams's inditing— of date of 30 years after the close of the period he is speaking of, has been gravely elevated into a proof of something else that the the writer's increUible confidence and carelessness. The page I quote from bears still further testi- mony to these constitutional tendencies of its au- thor. The next sentence reads : — " Upon every Mutation of roture lands, the " new proprietor was bound to produce his titles " to the Seigneur, and in forty days after exhibit- " ing the same, the Spigneur, in case of a muta- " tion by sale, and even upon Donations inter " vivos, from a Collateral Branch or Stranger, was " intitled to the AlieAatiou Fine called droit " de lods et ventes, (Art. 73,) which is the twelfth " penny or twelfth part of the price or value of " the Land." A donation inter vivos from a collateral branch or stranger, giving rise to Lods et Ventes, to be calculated on the value of the land given ! Au- thority had need be in demand, when a writer thus rash in his misuse of words, misquoting ar- rets, mis-stating usage, mis-reciting the very al- phabet of the law, must be pressed into the ser- vice. Of Mr. DeLanaudiere's answers laid before the Council, and the resolutions '•■ that body, it is enough here to say that I find in them no state- nnents at all confirmatory of these peculiar views. Mr. Mabane s Reasons of dissent contain a fevv v/ords, which have been cited as evidence. Among ther things, he says that the proposed change " would not only be a sacrifice of the King's " rights, but would defeat the wise intentions and " beneficent effects of the arrets of 1711 and " 1732, and of the declaration of 1743, by " which the Seignior is obliged to grant " to such persons as may apply for them, for the " purpose of improvement, lands in conces- I' sion, subject only to the rents and dues accus- " tomed and stipulated (aux rentes st droits acc&u- " temes et stipules) and upon his refusal the Gov- " ernor is authorised on the part of theCrown and " for its benefit, to the exclusion of the Seignior for " ever, to concede the lands so applied for. ^1' By the same laws" he proceeds, "the Seigniors " are forbidden, under pain of nullity and a reunion " to the Crown of the land attempted to be sold " to sell any part of their lands uncleared or en " bois rfeioM/, dispositions of law highly favorable, " to the improvement of the Colony," &c. It must be admitted that Mr. Mabane was less unguarded in his use of words, than xMr. Williams. His statements are far enough from being correct ; for, (as I have already observed) the Declaration of 1743 contains no reference to this matter of the censitaires' claim to concessions of wild land ; and underthe arrefof 1711, ic was not the Governor, but the Governor and Intendant conjointly, to whom in the case supposed the power to concede was given; and by the arret of 1732, not the Seiffnior alone, but everybody, was forbidden to sell wild land. But at all events, he treats us to no parenthetic assertion of the uniform rate theory. On the contrary, from his use of the phrase " ac« " customed and stipulated," one would rather •"- ferthat the notorious fact of the variety of the rates stipulated, was present to his recollection as he wrote. Nearly lour years later in date, we oome to another document ot considerable importance in relation to this matter. A number of habitans of Longueuil appe"- f^have petitioned the House, complaining of c. -i.i onduct on the part oftheir Seignior. The pc/tion itself is not printed ; so that 1 can only state its purport from the abstract given of it in the Attorney General's report upon It— the document I am about to remark upon. It IS there said of it :— "The petition brings forward questions for " public discussion, upon which there are various " opinions. The second clause states that Mr. " Grant, in open defiance of the ancient ordinances " of the Kings of France has arbitrarily increas- " ed the rents of three lots of land which he has 'I conceded to his tenants since he became their " Seignior ; and the remaining clauses complain "that he has increased the reditus paid by the " petitioners for lands conceded by his predeces- " sors." This petition was relerred by the Governor to the then Attorney General (Mr. Monk) for re- port ; and his report on it. under date of the 27th of February 17»4, to be found on page 93 of the English version ol the third of the Volumes laid before this House, is another of the documents 34 1';- |l I:' US J 'it IV 1 V ■ ll ; I li \ I i }k i I' 1 r It 1 hi pi In I I 11 i ...hich have been cited as confirmatory of the opinion I am combating Is it 'f "y »7., ^ .„. '^In the first place, it .states the ten^^^ «f J^^J^^f J Jrret of Marly, in quite other erms than those o Mr. Williams's report of 1790. ^^ Af'^J^j"^ of "Edict" says the Attorney General., o^ .^^ bm f! " July 1711 enacted, that every \«'g" fj . ^^"3";'^. '' concede, upon application, such quant ties 01 " ungram^d Lnds a's any inhabitant ^Jo^'l^ «sk .. within the limits of b.s Seigniory, «f«/.^^^ S to g nX r requ^ed ;«. mmes droUs " diL Seumeuries- A f raphvase copyi.^ verbatim the essential, words of. the ^m* and precisely accordant with the view I have been maintaining, in regard 10 it. The report proceetls : — , ' There does not however appear among the " records of the province, any edict of the French " Kin^ fixing the exact quantum oi the reddus or " ^,^°et rentes seigneur iales ; hut v^ov to the " conquest, a rule taken from the concessions - madl by the Crown, where ^^f^.^j;^' "^ " immediate seignior, was much lollowed. By "tSs rule, to remler any one estimate applicable " to the whole province, the cens is iixed at one "sol anient tovrnok, or a halt penny, lor every " acre in breadth by forty in depth, and one capon " or ten pence sterling at the .oignior's option, or " half a bushel of wheat where the redUus was " ^^Tjii"e a'to iudginents, one of the Intendant - Begon of the 18th Apul 1710, and the olbe' of <' the Intendant Hocquart ot the 20th Ji' 7 JJ^^, '•■ in some degree confirming this customaiy legu- " ation ; but it must however be remarked, ha - his ru e was not absolutely general, and that "Zreditusin the district of Montreal has a!- .' ways been greater than that of the district of " Ouebec. It was perhaps impossible, Irom dit- " Sence of soil, situation and climate ; and upon " he whole, I do not think that any general ren " was by law established, and I conceive the edict " Tf 6th July I7r cO be the or.ly guide lor do- " terinining the question."' Sin ol course^ other than confirmatory of the highauthority of Mr. Williams. And evidently, T might add, taken from the statement on the same matter of Cu-nel's book, on which I have al- Teady com-ented. Even to the misprint of the dateVftl Begon judgment of 1713. the two aaree. Cugnet's two citations cannot possibly J^ve been verified. Had they been so, they could not have been reproouced. But this matters comparatively little. 1 J. important point of the case, is the fact, that Mr. Monk (as Cugnet had done before h.m) admits distinctly the non-exisience of any authoritatively fixed rate, before 1760. , . ,, .. I continue to cite the words of the report .— " This edict clearly shows an intention, in the " Lemsiaiure or itic nay, tv ^ i'- • ••'; ~--.--i- tolranl their unconceded lands to the inhabi- " lants, and in my apprehension to grant themt .' at the customary rent in their respective Seig- ••niories, because that is declared to be the .•standard by which the Intendant, who conceded " in case ol the Seignior's refusal, was directed to «' estimate the legal rerfi/us which he was author- " ized to establish. , , ., 4. •' I am therefore of opinion, that the present « seigniors of Canada have in no instance a right " to exact from their tenants more than the ac- " customary reditus fixed by their predecessors " before the conquest ; and that the legal reMv^ " in each Seigniory is a matter of fact established " by ihe evidence ol ancient deeds of concession. "■And if it was then in the tenant's power to " compel his lord to grant his land to him as he " had granted it to oihers, through the interven- " tion of the Court of the Intendant, these terms " were and still are his legal right ; the edict of " the 6th July 1711 is still in force. " As to the clauses of the petition complaining that " the Sei<'nior has arbitrarily increased the. reditus " paid for lands forme.'ly granted to the potitioners, " I am clparly of opinion, that in all cases of leases " or concessions already made by the Seigniors to " their tenants, the reditus fixed by the deeds of " concession can never be increased under any pre- I " tence whatsoever. But it is a question whe her " the petitioners have at present a legal mode of re- " dress against the innovations of which they com- ' ^''Ts the law stood before the conquest, the tenant, '< in cases similar to the present would have found '. an immediate remedy upon application to the Court .tain. And to what do they amount? An absurd, unjust, illegal sentence passed by four military men iu 1762; a careless, passing phrase or two of Maseres, in 1769 ; some loose, inaccurate sentences, and references to arrets, by Cugnet, in 177.5; some extra vag.ant mistakes made in 1790 ; an Attorney General's opinion, not coun tenancing them, in 1791. A few years later, in 1803 and 18O0, we reach the time of tiie printing of the two well-known volumes of our Edits et Ordonnances. And;from that time, there have been before the public, in print, in those volumes, most of thn successive comminatory arrets of the French King as to the escheating of Seignio- ries, on wliich I have had occ ision to remark ; and the arret of Marly, with the untrue recital on its face, that the taking of money for land by Seigniors, was " entirely contrary to the clauses of the titles of their " concessions, whereby they are permitted only to " concede lands subject to dues {a titre de rede- " vancey; but there has not been before the public, that context — so to speak — of the arrets, title deeds, and other documents of the period, which I have had the advantage of being here able to bring to bear upon .,y fm- bv hw"' 'ii'T' '''".^ ^"'"S ^'i'^' '""<'' he could not trLt \ f"'i'""-''^.''Pain of nullity of the con- tract, and escheat ot the land. And the evidence consisted entirely of the admissions of the iSn- Que^S'n'^n"'"^"''';^'^' '" "^'^^t 'he whole question of law raised) in tsese words :- " in 11!^! 1 . "' 'he seigniory ol Saint-Armand, ''menl1ot';h'^'''''''^''''r'^'''"t'«'^ '" 'his cause "SnioM.''''" ^'■""^'='' ""^ ^"'"^^^'^J "f'der " bv!hl » "n!'"'^' " ''^'^ '''' f'^-f ^^ ^''if^ncurie, " vfncl.fT Christian King, whilst the Pro- " lah P ov!' ^T'T'^y 1° ^he conquest of (he saidlioyince by Great BiKain. " nal .rrM^-"'^'''"' ^'>' ^■'*''"'-' ^f 'he sai.i origi- " io..^ rL"' ^°'^'«^^^'0"' 'he said till and seig- " da?e of l!'T"l''' "'"'",'"'" ''"■'^■■'he day of the "chrrdo • ',7^ ?'r""y '"<''"iont':7'-''"tionol the said plain- " Si V """''^'y'"'' ^""«' =""' continues' o be. •4r vinvT/''''''"r''''''f ''■ ''"'•^■^' '" 'he said ! •' 11 i??'!''"!^-"?'''".^ "" 'he ' <'"" h.te honorable " daS,?""" !''"'"'' ""^' '>'''" '"'he Miiil dt- ; ..^'"'""""""''''^^'^s. seignior, proprietor, and ' ■ declaration ol the said plaintitTs m this cause " lyled, was at the time of the execution (hereof " waste, uncultivated and .inconceded land, ter- " rei en bois dciout et non conccdees, of the said "/«/and seigniory of St. Armand." That is to say, the admission of the Plaintiffs was, that every averment of fact urged by the Defendant was truly urged,— that the land when sold by the former Seignior was wild land, never before granted, wilhin his Seigniory,— such Sei- gniory then being held according to the old law of the land, as subsisting under the French \fgime. And (heir position was, that the sale was never- theless not null in law. nor the land forfeited ; but that the purchase money with interest, and the arrears of the quit-rent, were due and exigible. The Court maintained tliat pretension ; thu^affirm- ing in express terms, that contracts by a Sei- gnior lor the sale ol wild land in his Seigniory were valid, and must be enforced,— the arrets \n question, notwith.standiiiir. Two other cases remain ; to be found in the same volume ; the one that of Holland vs. Molleur —(see pp. Joi and following, ofthe French, 115 and following of the ]':iiglish version,) conducted for the Plaintiff by (wo learned gentlemen, both of whom are now Judges ofthe Suiierior Court, and deleiided by Counsel then )k still holding the high- est ))osition at the Bar ; the other, that of Hamil- ton vs. Laniourenx, ( -ce jip. 119 and following of the French, and 113 and Ibllowing of the English version,) conducted for the riaintiff,by one ofthe gentlemen just referred (o, now a Judge of fhe Sui)erior Court, and defended bv another gentle- man, also now a Judge of high 'rank and standiii" on the same Bench, and by anoiher gentleman slill at the Ear, and enjoying there the highest re- putation for ahility. Both actions were ably and keenly fought ; to recover rents very considerably higher than the rate which is assumed by the Bill now before this Hcuiorable House, as the highest that admits of legal sanction or excuse. °The pleadings in both causes were juit into every form, in which the skill of the ablest Counsel could state them ; witji the view, in one sliaj;e or other, to nuike out (he illegality of tbe'se rates and obtain lor the Defendants a reduclion of them, as exces- sive. In the former of (he two cases, it is true it was 111 answer set out and shown (lua (he land had been granted f.nd re-acquired by the Seignior before its concession at the rate impeached.'' But III (he latter ease, (which, by the way, was one of a large nuirdjer of like cases broi :,t about the same linio by the same Plaintiffs, defended on like ground, ami decided in the same terms,) there was no such answer; and the qM<\'.tion of law came fairly before (he Conr(, as raised by the Pleas. It was clearly lunved, however, as * llieir ("oiuisei told them — becnuie they knew and felt — that ap- peal was hopeless ; that the Judges ol last resort, sitting in Her JMajesty's Privy CounciflVdulS in- terpret and administer the law, as the Courts here had done. I know, too, that what is called judge-made law has often been held up to popular suspicion ; and those whose habit has been to reflect on our Courts of Law as unduly Se.gniorial in their juris- prudence, have not failed to derive a certain de- gree of advantage from the feeling so ''raised. But there is really here iv question of judge-made law, at all. No text uf law, nor principle of jurisprudence, adverse to this rule of decision, can be cited. Unvaryingly adhered to, and well known so to be, no text of law ever was enacted to reverse it. If such a rule benot truly law, who shallj .say \>Irit is i In tiuth, it is precisely in these decisions of the Courts of Law, that the tenor of the law is for pr.ictical purposes to be read. Men do not study the statute book; they do not ask Counsel— Coun- sel, even, do not content themselves with asking — what is in the statute book ? They ask what is Iho law? 'J hat is tosay, what is it practically ? How do the Couits h Id it ? What will they enibrce? What will they set aside? If for ninety years and more. Courts have gone on en- forcing all contracts of a particular kind, — if in a number of impoitant cases, ably argued and solemnly adjudged, they have adheied to one and the same style of decision, — by what right dare Counsel tell his client that such decision is not law ? It arijues a most dangerous state of the public mind, when men lightly run down what th^ Courts of Law have for ages held as lavr. The 'ard whose Judges are distrusted, where men fe.ior hope that any day may witness a revers.il oi the judgments of a century, is a land where all property and all contracts must be un« safe ; wliore man cannot trust man. But, ''Hsides all that the change of public law consequ nt on the cession o( this country to the ('rov\n I ; Great Britain, has done, and all thaf thisjuritprudence since has done, to confirm and sirenathun my client's position, there is yet more. Grants of Seigniories have been made since the cession, by the British Ciowm; affected, equally with those of earlier date, by his Bill. Two of these grants are of Mur.ay Bay i''{ Mount Murray : of the s imo date (17t)2) and on the same terms. The former is to be found on page 94 of the (Kus»lish version of the Thiid Report of' the Special Committee named by the theii House of .A'sembly, on the Seigniorial 'Icnure, in ISi>l. It is by Governor Murray ; and after acknow- ledging the " faithful servitvs" of the graniee, an oflicer of His Maji'sty's Army, lunslhus: — '■ I do hereby give, giunt and conceile unto the "slid ("apt. John Nairi e, his lieiis, executors and '' ailmi.iislratois for ever, all that extent of land '' lying on the north t.ide of the Kiyer St. Law- " mice from the Cupa^ix Oyn. limit ot the Pa- '•lish of Rbonh'mem, to the South side ot tbe '• river ofMullxiic and for three leagues back, to " be known horealler, at the special request of " said CaplHJu John Nairne, by the name of " Murray's Biy; fiimly to hold the same to him- " self, his heirs, executors and ailmiriistrutors for " ever, or until His Mnjo>ity'8 pieaftire in fuither " known, for and in consideration ol the po»tM« '•sor's paying liege homage to His Majesty, his 40 !»*'" *!?'' «u 43 ^ > which m Its day pressed on the larger class, and the revival of which against that larger class, in- sanity Itself would hardly dream off It were to destroy the whole fabric of the re- lations between nnan and man. All the relations in life of the proprietor, Seignior or Censitaire, are predicated on the value of his rights of proper- ty, as the junsprudence of the Courts, authoriative- ly establishing the law of the land, has determin- ed and guaranteed them. I gave so much for mv toeigriiory, borrowed so much on the security of it bound myself in all manner of ways to all manner ot obhgations by reason of its being mine- be- cause I knew that tlie revenue arisinir from the cemand rents and dues .stipulated to accrue on the granted part of it, amounted to so mudi ; because I knevv that the average ot its lo.Js and vcnes came to so much more ; because I kncw that it con a.ned such and such an extent of uno-rnn L land, ofcertam vu ue, and from .^hich I codd de- rive so much, by lumbering on it, cultiva i - it or otherwise ; because I kifew thal'itsn Is eki: such and such rights ; because 1 knew that this and that water power within it, which other v i might have competod with those 1 1^-.^^^ shou d use, were no, the property of the coS// k - der ot the land adjacent, and could not be use in competition with mine. Another bou^t iS my seigniory, precisely so much below what oth- erwise would have been its worth ; because il was burthened with a certain know„'rate 7^,,, mu rentes; because, whenever sok], lo. U the jiroperty that I bou-^ht .5- fromi'tr'!,^^'"'-*'!^'/" ^^--^ itsvalue'^Uiken ;• u , , v'" ''-'V' '''^^ """'her dit 44 I'' I fil™..'*? "fSeign,™., M^cl«nt»,.,e anxious | (here K needed no^defiSionVf rights rt,. by l^i rojhave their property relieved from the odium of an unpopular tenure ; and would rejoice, as citi zens and as proprietors, to see it change its form At the same time, it is nof «'^:^;r Kncmaco or.. At the same time, it is nof '"-Ir business,— and speaking ds I here do for tht ., - is not mine— to suggest the mode in which i> is to be done. 1 he proprietor has no right to ur^e any particular mode of procedure as that by which (for great ends of puohc policy) the form & character of his ?.'°Pf ♦//!u° ^^ changed. His right is merely, to insist that the change be not made to his loss : that SPP tS'L^h' • P"bli<=. t^ke from him, the public see that he be indemnified. Others here propose a ctiange of the tenure, as a change which the public interest demands. My clients, provided only that they be indemnified,-that their righS before being abrogated, are redeemed,— have no objection to oifer. Against an • change of the tenure on this pi.mciple to be effected, (no matter what the machinery,) they do not desire me to say-andiftheyd.d, I would not say-a single word. But when It is proposed, as here it is, to define Seigniorial rigrts, and when, besides defi- ning, it IS further proposed to alter, by restorinjr --with modification always-one knows not how much of certain alleged .Provisions of old laws admitted not now to be 1. vv, I have my objectirs Define my dents' ri^lit: ; They are not douk- lul. 1 he tenor of their titles is not doubtful : the tenor of their contracts with their ccnsitairel IS not doubtful; the law, as applicable to the n- terpretation and enforcement of their contracts ;het.n"^'''T. There is nothing doubtt'Kbout the matter. Ihe veiy mistaken impression that has assumed the form of a popular doubt as to the matter, is not doubtful ; but is plainly, clearly, an impression having 1,0 basis of fact or law to rest upon. And, restore in part the past ? The nasi rlTe'ir'T'^' ^'^^-^^yfhing changes, onwS d The further changes vve have to make, musttbe- the futn*ro''''{f ' '°'''"'l'' '^' J"^'^'' ^"' °"^^''^d to L;h K r J- "^T^ do'^K'nent which has been aid before this House and the country do not ut- terly deceive, if every historical authority be rot at feult no part of that state ot things which i re- vai 0(1 before the cession of this country to the British Crown, and which that cession al.ro cvnvooc «!,,.,..,;...'_._ .k_- ., • restoierhe pas . Ihe arrets, one after another, show that the Inlendants jealously guarded from all encroachment by inferior Judges, the high powers " rf 45 " f> vested in themselves,— much more those yet high- er powers entrusted only to the Governors and themselves acting conjointly. These were pow- ers far transcending any mere judicial authority. Thejintendant— absolute Chancellor. Chief Jus- tice, and what not, as he was— -could not himself f xercise them alone ; any more than the Governor. Nothing short of the direct interference of the whole embodied absolutism of the French King, conld put them into operation. And yet it is pro- posed—calling them to that end, "judicial pow- ers," as in truth they were not— to' place them in the hands of every single Judge of the Circuit Court; of every incumbent of a Judicial office, the qualification for which is five years' standing at the bar, and a willingness to accept a judicial po- .>ition of inadequate emolument and not of the higher grade ; for without meaning the slightest disrespect to the gentlemen who hold that position — and I have the highest respect for every one of them, and only regret that the emolument -ind rank of their position are not more in accordance ■with what I believe to be their personal deserts,— it yet IS an indisputable fact, that the jurisdiction entrusted to them is the inferior jurisdiction only, ofthe country. Under this clause, as worded, I do not see but that any one of these gentlemen might decree the escheat to the Crown of an entire Seigniory ; and certainly this high power — half state, half judicial — to escheat and grant away Seigniories piecemeal, is meant to be conferred ou each of them. Again I say, there is not laere any restoring of any feature of the past. Indeed the concluc.ng words of the Section mike it clear that no restoration is meant ; for it is there said that this power is only to be exercis- ed, "regard being had to the extensions, restric- " tions, and modifications of the said judicial " powers and authority made by this Act." Not merely are they to be exercised by anj jne of a score or more of functionaries, in place of being ex- clusively the function of two acting together ; not only are they to devolve on functionaries of a rank less elevated ; but they are not to be exercised as of old, at all. They are to be extended, restricted and modified, — to be converted intoother powers ; and then, and ♦' .1 only, put into force,— new powers, by new machinery, to new ends. I read the next Section, as the first of those clauses that together set forth the extent and na- ture of these innovations, which it is proposed to make, under color of a restoration of Ihe past. "III. And in order to facilitate the exercise of " the said judicial powers and authority — Be it " enacted, That no Seignior shall hereafter con- " cede to any one individual any extent of wild " land, exceeding 120 superficial arpents, other- " wise than by two or more separate deeds of con- " cession, bearing date at least two years from " each other, or unles, the excess over the said " quantity of 120 arpents be conceded to the fathers " mother or tutor for the use of one or more min- " or children ; and in the latter case, the extent *' of land conceded for each such minor shall not " exceed 120 superficial arpents, and the minor in " favor of whom each such concession shall be -, .-w -fTv v2 '. •-•ir-r=3iu;i. That this Honorable House may uuderstand the meaning of these words "wild land," as they here occur, I must beg its attention to the 89th Section, Dearly the lust Section of the Bill, and one of its interpretation clauses. Is it thereby provided that : — " The words 'wild lands' or 'wild land,' when- " ever they occur in this Act, shall be construed "to apply not only to all wood lands or lands " otherwise in their natural state, bnt also to all " land in part settled or cleared, or otherwise im- " proved by any other person than the Seignior of " the censive within which such land shall lie, if " such land so settled, or in part cleared or im- " proved, be not yet conceded." In other words, supposing any land in a Seigniory not theretofore sub-granted by the Sei^'nior, to be partly settled or cleared, or otherwise improved ; if this have been done by any one but the Seignior, or a party acting at his instance and for him— for I take it for granted, that it is not meant by the words used, to require that he should himself have been the clearing settler,— such land is to be con- sidered " wild land," within the meaning of that Bill. But need I go into argument, to show this no such idea as this was entertained in 1718, when the French King limited the obligation of the Seminary of Montreal to concede at a certain rate, to wild land, (" en bois *6ou<,"— land in forest) and expressly saved their right to deal as they would with any land, a fourth part of which should be cleared ("dont ily aura un quart de defricW") no matter by whom or how 1 Or, in 1730, when Messrs. Beauharnois and Hocquart, writing in a spirit of hostility to the Seigniors, (p. 22, of Vol. 4 of papers before House) proposed to let them take the full advantage ot all clearings, and of all natural meadows, (" rfes defrichements etdes prairies naturelles,") wherever to be found withm their Seigniories 1 Or in 1735, when the Kmg expressly refused to tie down the Seminary ever so loosely, to any usual rate that sbouldii mit their right to take advantage of whatever, for any cause, might be the reasonable excess of value of one lot of land over another 1 Is it a revival of old law, or a mocking play upon old words, that is intended, when it is said,— first, that wild land is to be granted in such and such quantities only,— and then, that.these words " wild land" are to be held to mean— not wild land, but any cleared land which the Seignior may not have sub-granted and may not have cleared himself? If the land be not w-ild, and belong to the Seignior, what matter by whom it was cleared ? Whether it be wild or not, whether it be his or not, are questions to be determined at c-mmon law, not by Act of Parlia- nnient. To say by Act of Parliament, that land shall be called wild, aad held not the Seignior's property, because it was cleared by some one else, and has not been by him, the Seignioi, alienated, IS to declare the thing that is not; to enact the thing that ought not to be. So interpreting these words, however, this 1 hird Section which I have read proposes to de- clare, that such " wild land " (cleared or not) shall never be granted m quantities exceeding 120 arpents, unless it be to some father, mother, or tutor, on behalf of minor children. That is to say man or woman with any number of children, on their hands, of a day old or upwaid8,may get their live, siA, seven, or more, hundred arpents. The man without children may not get more than his IM). As though -I say nothing of the wide door to fraud which such a provision oi)ens,— the man burthened with a large family of small children 46 could clear land faster than th^^ man without. Or as though in these days, he M'ere to be rewarded by the state, as for public service rendered .-io'ii all seigiiiona r ■'•hts and all other charges. pxnf.nt tif-, . "o"i'' :;rn^t.onodinthesetl'i:i;ai;;:,';-^^^^^ represent,n.ahe value^f theimmoveable'cK' French Governmont, that thu8 limited the con! there. So far from it, the Seignior by the term, of his own grant was commonly oblLd to S a number of other conditions limitativ^eof his 7? sitaire's rights. As to his own power ofi^lJf more than he was so obliged to Su°atPth"^ ditions which the Sei-nior mlrht n,t \H'-^ grants, if the censilairei^ere vSLKj"^?.*^'' , can be no question. J, Tcourse ^^I^ f*' '^'"' I say that the public law of tSeland a^ Ihl'"'^'" *° day Will allow the stipulati g of eo dtrZ' stipulations ever couW be mnl' •""'^ ^"'^^'^J. that of whatsoever m^t tlh'e ^S^'il heTd Ts'^f (lavs next to nothiii"' Hio price Seigniors to gran a, at fC'?'' /'^ '^"'"P^l -asonthet(;ii;;X:tid,!l"iitt ulT"'^^ so to be granted subject to the i'-bt -? ^^''''I ViVitcs- This is nof L,-! .„ i . ■ ^"' '^^ ^""^s «' •liftere,>ce imate u ^. .. """'• ^'"^ ''^^ such as Kaudo .;„ ?a,;r;V^'7"'« ^«,-««'^-« the higher M-ould the S L tt'".'"" ."' "»*' thened with rent to hs fu I v il,, ' '"'^ 'i*"^ ^"''■ surplus pro/it ,o the t| j 7 win V' '" ■"'^''^ "" thing, will sell for notln-'lilTvLn ""'"/''; "«" on the other hand the r ft'l, ^ n '^ ",'' ^''*- I'" once becomes SthnS ^^^^^ '^"'' '-^^ price, yields a fair re um to I s"'-^ "^- ^ ^'^''" shape of /oA-. Kaudo. n^V ? '^'''^'"'"'* '"'he the one hand: hui^TFr''^^'''''^ ""'^'y «" o" (he otner This bi? . '' ''"" l'""' '" i'^e .shall he a certain smn^o ^ZT .'^ll 't' ^^"^ MuallenougnofcouiM. T J'Tl '''""'' ■'"™' be held c4 ■«" /^" r;r;'" hat the land shall •hat shall U^uoli^V:^'''J^iZ,!T'' jtosal, as We haveseen v^J^^ ixa ulot s pi-o- sion of the ri..ht of nmm w ^"."^"'"'^ «» inva- tiiose days. Is thiV rnL ^i' ^" ^\''''^'^ «" '" .""ys. IS uus proposal one to bo acted on in ent9 for themselves, the number not known, but sure not to be extravagant ; and that they must part with all the rest, to whom, on such terms, at such prices, as the Legislature— no, I ought not to say the Legislature— as any Judge of the Superior Court or Circuit Court shall determine. Let U3 see, then, what are to be the prerogatives of such Judge, in this proposed new capacity, as re- presenting the Governor and the Intendant of the days of French absolutism. They are rather high. The tenth and eleventh sections read : — " X. Any person who, after the passing of this •' Act, shall have called upon the seignior of any " seigniory whatsoever to concede to lliin or to his " minor child, a lot of land forming part of the wild }' and unconceded lands of such seigniory, may, if ' ' the seignior so called upon refuse or neglect to *' concede such lot of land, summon and sue such seignior by action or demand in the form of a de- claratory petition, (requite Uhellie) in the Supe- rior Court, or before any one of the Judges there- of sitting in the district, or in the Circuit Court " sitting in the Circuit, in which such lot of land ia " situate, for tl'.e purpose of obliging such seignior to " concede the same. *| XL Whenever the seignior shall have no domi- " cile in the seigniory in which such concession is •' demanded, the writ of summons and the petition " thereunto annexed shall be served upon his agent, " or yponthe person charged with the collection of " the renta ofthe said seigniory ; and if there be no •' such agent or no such person having his domicile " in the seigniory, the service of ...e writ of sum- •' mons and ofthe petition thereunto annexed, shall " be made by posting on the door of the place appoint- " ed for the receipt of the seigniorial rents, for the " year next preceding such service, a duly certified " copy of such writ of summons and of the petition " thereunto annexed." I see nothing as to the length of time to elapse be- tween the service or posting of this petition and its presentation to the Judge, I suppose it is intended, therefore, that it shall be the usual length of time allowed for return of a summons. This in the Supe- rior Court IS 10 days, with an allowance for the num- ber of leagues to be travelled ; and in the Circuit ourt 5 days, with a like allowance. That is to say, within from 5 to 10, or at most 20 days, by a sum- mons that need not be personal, nor even a summons made at his domicile, — of the issue of which he may often not be made aware, — every seignior may be summoned to answer for himself, on this matter, (the refusal to con cede his own land to '' any person " — vagabond, stranger, alien, no matter who— or to any "minor child " of such person — boy or girl, no mat- ter how young,) and this before the Judge whom such person may select ; and the affair, as the next section of the Bill advises us, is then to be '• deter- mined in a summary manner," unless such Judge shall think fit to order a plea to be fyled, and writ- ten evidenae to be adduced. I read the clause, lest I be thought to mis state ita tenor :— "Every such action or demand shall be deter- " mined in a summary manner, unless the Court or " the Judge, before whom the same is brought, shall '' think fit, for the interests of justice, to order a plea " to be filed and written evidence to be adduced ; and " in every such action the said Court or the said " Judges shall condemn the Seignior so sued to giva " a Deed of Concession of the lot of land so demand- " ed, in favor ofthe Plaintiff, on the conditions and " in the manner prescribed by the sections " of this Act. within such delay as shall be appointed " by such Court or Judge, unless the Seignior so ' sued, shall show that the lot of laiid so demanded '• as a concession forms part of the lands reserved by " him, under the sanction of the law, .as a domain for " his own use, or that he is not by law obliged to " make such concession ; and in any case in which it '' shall be more in accordance with equity to order " that a lot of land other than the one demanded, ba " conceded to the Plaintiff, it shall be lawful for the " said Court or for the said Judge so to do ; and •' whenever the Seignior shall, after the expiration of •' the delay allowed, have neglected to grant a Con- " cession Deed in favour of the Plaintiff, such judg- " ment shall to all intents and purposes be for the '« said Plaintiff in the place of a Concession Deed of " the lot of land designated therein, on the conditions " therein specified." And so, when, as the representative of thtj grantee of any land h°ld enjkj (that is to say nobly) whether under grant from the French Crown or from the British Crown— say, as representative of the first grantee of Beauport, Desplalnes, IWount Murray, or St, George in Sherrington— holder under grants of property as absolute and unrestricted as can be ex- pressed in French or English words— I find myself impleaded before any Judge whom any person im- pleading me may have selected, my cause is to be heard " in a summary manner," that is to say, with- out written plea, or a day's delay for preparation to plead verbally, or record of the evidence taken ; un- less such Judge see some special cause to order other- wise. Implead me for fifteen pounds and one fa'-thlng, or as to any other matter that this, at all affecting real estate, or any right in future ; and I have, of right, my delay to plead— my plea fyled in writing— my adversary's written answer— the evidence of every witness recorded — a written Judgment, from which I can appeal. But here, with my property at stake — real estate too — to a value 'perhaps of hundreds, perhaps of thousands of pou- I may be impleaded 49 by a process not amounting to a hg&\ summons, be- fore a Judge to be selected by my adversary ; and, unless by that Judge's permission, I am not to have the poor satisfaction of time to plead, or the right to record my plea, or the right to have the evidence reduced to writing, so that I may take my chance of bringing up any scoundrel, who may have committed perjury to my prejudice. And even this is not all : the Judge, if ho please to think such course " more in accordance with equity," may order me to grant any other lot of laud than that sued for. I may, perhaps, noc be present : I may bo ill ; the roads or the weather may have de- tained me ; I may have staid away, thinking it of little consequence wliat was done, — the lot demanded being one I did not value. But my one Judge, if (for whatever cause to his own mind at the moment seem- ing sufficient) he shall see fit so to do, may give this " any person " any other part of my land than the part ha so demanded. Perhaps it may not matter much, as matters arc meant i stand by this Bill, what part of my land is given to one, and what part to another, or which parts are to go first. They are all to go ; and will not bo long in going. Still, the last feather, says the proverb, is what breaks the horse's back. But we arc not come to this last feather yet. The thirteenth section is as follows : — " XIII. Whenever it shall appear to the said Court " or Judge that the lot of land, so demanded as a " concession, is not susceptible of cultivation, or fo. .s " part of a mountain, hill, rock or other land, wiiich •' it might be necessary or advantageous to reserve " for the making of maple sugar, either for the use " of those who shall have acquired that right under " agreement with the Seignior, or for the use of the *' censitaires of such Seigniory generally, or for any ?' other object of public usefulness in such Seigniory, " it shall bo lawful for the said Courts or Judges to *' reject such demand." That is to say : it shall not be lawful for my Judge to reject the demand, on my production of the titles of_my Seigniory, showing that the land claimed is mine ; on my showing that the applicant has no more right to it, that any other man on this earth — or per- haps, that as a vagabond or as an alien ho has (if possible) less claim to it than most others ; on my proving that it is not only mine by written title, but has a houso (my property) upon it, and that it is un- der cultivation by a party holding for me, or at any rat' lit denying my rii^ht. If this one Judge shall ^' hat it does not form part of the lands reserved J under the sanction of the law as a domain for m. own use, or that I am by law (this very Bill to be such law) obliged to make concesslou of it, — I may not keep it. Unless it please the Judge to let me, I may not put in my plea to assert my right to it ; nor examine a witness brought against mo in writing. But the Judge may, in his discretion, take from me any other lot of land instead. And if (still in his limitless discretion) he shall think the lot "not sus- ceptible of cultivation," or a lot which it would be *' advantageous to reserve for the making of maple sugar," or for any other end that he may regard as an " object of pufalio usefulness,"— that is to say, if he think the lot likely to be of use ah a reserve, to any one but me its owner, — he may reject the de- mand ; and, I take it for granted, may reserve the lot accordingly. The Fourteeuth Section carries us a step further : " XIV. In all such demands, the exception based " upon the allegation that the lot so demanded forms " part of the lands reserved by the Seignior as a do- " main for his private use, shall be rejected on un- " contradicted proof by two credible witnesses, that " the Seignior, or his agent, has, before vhe filing of " such demand, refused to point out to the Plaintiflf " the situation and extent of lands so reserved by " him, or that he has pointed out, as forming such " domain, lands in which the lot, demanded as a " concession, was not comprised." If then, any two persons (on the occasion of this summary hearing) shall come up and make oral de- position that I have refused to point out, whenever asked, the lots on my seign-ory, reserved as by this bill required, for my domain ; or that I have poin i out as such, other land than that in dispute ; unless I have ready upon the spot (as I can scarcely have,) other witnesses to contradict them on this point, my defence — though it bo that the laud is part of such specially reserved domain, and thoush I prove it ne- ver so unanswerably — is not to avail me. If even it be so sworn that my agent ever did such a thing, the result is to be the same. Any and every man, though not at the time im- pleading me, or expressing any intention so to do, must be shown by me (or by my agent, as the case may be) punctually and before witnesses, whenever and how often soever he may ask either of us, what lands I claim to have specially reserved for my do- main. Or else, I may find him hereafter bringing up liis two witnesses, to prove that we would not do so ; and thus cutting away my defence to any claim ha may make to any land whatever, that he shall choose to claiiu of me. It is hard to think that such a clause can be meant in earnest. The land may be part of my reserved domain, beyond any kind of question ; not a stone's throw from my manor house ; but the Judge is take it from me, if it only be sworn by two witnesses, whom I cannot on the spot contradict by others, that I or my agent ever refused to show the plaintiff my reserved domain, or did not show him that land as part of it. The depositions may be false ; but I have no right to insist on their being taken dowa in writing, to help me in a prosecution for forgery. I do not say, there is a Judge in Lower Canada, who would refuse to let me take such evidence in writing. I believe the Judges would be better tha. the law. But law and Judges alike ought to be above suspicion as to purity. The Bill that leaves to the Judge such discretion as must expose him to suspicion, ought never to be law. But lastly, to make it impossible to question the intent of this part of this Bill, its fifteenth section (the last aflfecting this "particular part of it) runs thus : — " XV. And all judgments rendered upon a de- " mand for a concession, either by the Superior Court " or a Judge thereof, or by a Circuit Court, shall ba " final and without appeal." -. ....J ...... .Q "..-a f.*f-5,*(i |.*'titsti.7 VVM FcttUJ' J ntJ X. have said, I have my appeal, first from the Circuit Court to the Superior Court, and then from the 3u« perior Court to the Court of Queen'- Bench. For anything over fifty pounds currency, X must be aaecl in the Superior Court; and have ~\j appeal to the I 50 Queen's Bench. For anvthhig over five hundred pounds sterlingr, I have my appeal to Her Majesty in IJer Privy Council. In any case but this, involving iny real estate or rights in future, bo the amount II never so small, my appeal lies of right to that high ■*' tribunal of last resort. i3ut, under this bill, by this one procedure, my land, the land I hold by grant from the Crown of Franco or of Great Britain, it may be under the direct sanction of the Legislature of the Province, may bo taken from me without legal summons, without written pleading fylcd or evidence taken, by any single Judge, summarily, finally, with- out revision or appeal forever. Is this French law ? Is it English ? Can it ever bo Canadian '? I hdve arrived at tlio second part of this Bill ; j which purports to provide lor tho Kcunion to a j .Seignior's IJomaiii, of lands granted to ccnsitaircs j but not by the laUerduly settled upon. This pnrt | of the Bin covers fjorn the sixl.'enth to the j twenty-i'ighth sections, ho:ii incliuled. j The sixtfcnlh scclioii reads as follows : — ' ''XVI. Aiid in order lo facilitate the reunion to | " the (lon-jain, of sucli lands or parcels of land, in ■■ " the cases jjuivided for hy law, and to render ' '• such reunion less expen- ive to the SeiL;iiiors and 1 " to the ccjisilarks — Be it oiucted, that an}^ Sei,'^- " nior, may hy one and the same action or de- " mand, in the form of a declaratory petition, i " {rc.qucte UhdUe.) sue and sumnnon bcl'oie the j " Sup^- .or Court, sitting in the District in which j " such seigniory is situate, any number ol i)crson3 ! hoiuuig la nds ia the said Seii; uioi-y, on tlie con- ;, and of keeping lii^v^ thereupon, ar.d who shall have failed to perform any one " of the said conditior.s, and to demand, in and by .1 ■ ■ ■ ...... " ditlon of settling on the saniO; " house and home ( tcnirfcu ct a ' " ' sucli action, llio reunion to the domain of such Seigniory, within siiclireasoualjle de'ay as .'-.hall " bo ordered by thi' Court .. of pil tlie lot-? of Innd, " in re.spect to which such condition or conditions " shall not have been full'.Ued ; and it shall be " lawful for the said Coiut, to proceed and to " give such judgment in the action as to law and " justice .'■hail appertain, with regard to the re- " union of all such lots of land to the domain of " the Seigniory in wliich they are situate." Fully to show its purport, bonie remarks may be necessary. The two an els of J\tarly givo the h'lbiUtiit desirous of becoming a censitaire a certain right of procedure again.-/, the '.'ignior; and gave The Seignior a certain other right of procedure against the cenntaire. The cenntalre by the latter of these two procedures could be turned out of his holding, without suinnions, upon the certificate of the cure and captain of the cote that ho did nol keep hearth and home upon it. jN'ow, I do not ap- prove of lliat summary jn'oceeding. I do not want to go back m any respect, to the past. Most surely, I do not want to revive this jn'ocedujo. The present had need bo made belte; for all ; not •worse for any. But what is it proposed by this Bill, to enable the Seignior to do agdutst his censi- taire ? After the proposal to let a man who has no right to my land, take it from me against my will, by petition to one Judge, snmmnriiy and v\'ithont appeal ; what am I to be empowered to do with the censitaire, to whom I granted land on ex- press condition (among other things) of settling & living on it, but who has failed to perform his J. ,■ that ])roperly concern- not be .simpler to bring each contract on the faith of which I so granted ? By this section I am to have the great privilege of being allowed to sue any member of such default- er, censitaircs. if I please, in one action ; but this action must be before the Superior Court, where written pleas and writtei. idenco arc rights at common law. I have heard of persons, thankful for small mercies ; but I never met with a well authenticated case of a man thankful for no mercy at all. This privilege is one, of not the very smallest practical value. If 1 have not it now, the reason is not more to be traced to the techni- cal dilhculties in the way of such a procedure, than to the consideration that it was never worth i anyman's while to try to overcome tlicm. It ! is easier and safer to sue live '..undrcd men — each i on avermer.ti of fact ali'ecting himself only, — by j live hundred .several actions, than it would be j to sue thera'all by one. What sort of a reouete I libillee could I bring i)ito Court, to turn out ilve I hundred ccnsilaircs, for failure by each to settle on I his land I All I could do, woidd be to write out th(? i sub.slance of (ive hmulrel sejiarate doclarutions, one j after another, each complaining of one, but all on I the same paper. iNly rcijucte would bo only five hundred dill'erent rcquetes tacked together. And I I should ju.st have to servo a copy ol the whole on I each man, instead of 'ing on each man no j mare than the one ? I ed hinrself. Would it j action sepaiately 1 Besides, if [ brought tham all in one, I should have a most unirianageahle actiou on m.y hands ; and — for it is more than doubtful whethei L could possibly get judgment against any one or iTiOro of the Ave hundred, till the ca^is of all should be ready for fm.il hearing — I should fuifher be tolerably sure to have the whole of my proce- dure hung up, bet'ore theCoint for a somewhat into- lerihle terra of time. By our syst»:rn of piccedure, as it standi, (and 1 see no proposal here, to alter it in this resp-3ct.) any one of s,n-..Mal d:'rendants by pleading would dcl;\y the suit a'^ainst all. But supposing that liilliculty avoided, this proposal s'ilt gives me nothing ; fjr I had bc'ter (on olhi r grounds) brin^ iny live hundred suits ihati be hampered with one unweiUly procedure against five hundred. In the days of the French system ihiiig.i were very drfi''rent in this respect, 'i'hen, the pi'ooeedin;" under the second «(•(■_'/ of ?.lHrly, against the cc/i'>ititirc was ptnnm.iry as heart of man unlriendly to ; ;e censitaire could wish. Then, the Sei.^Miior rune bt fore' the Intendaiit, with two cerlJIicates against any number oi' censi- taircs ; and the Intendant, if iomii.ded, could make oat his oreer against them all, without ever a'sking them what they had to say. If disposed to be more considerate, he would suniiuon them ; one or more woul.l perhaps appear ; ■aid on their appearance, or default, as the case tnight be, judiiment would go, as readily and unreservedly agamst those who migiit not appear as against those who should. These things were common then. It is well, that they are not so now. The procedure of our Courts, ihe law, is not such now, a.s that any man can turn a number of men out of property, without first proving his case distinctly a||;'ainst each. And this being so, it is no boon to tell him that he can sue any number of men, for difTerent causes of action, by the same suit. A suit against each is his best course. f,' iM -■»■ > ■ " to the t|i)m-Mn, un " then shew to Ih' " thattlie reunion o; " 01', ought not to lak The S'evenieenth Section provides for thp mode of Summons ; and calls for no particular remark. The eighteenth Section is as I'ollovvs :— "Xyill. 'Whenever th? slid Co'Jrt shull be of "opinion, thai the lands the reunion whsroof to " the domain ol the Seigniory in which th-^y are " situate, is demiinded, ou^ht to be so reunited, it " shall be the duty of such Court to order, bv an " interlocutory judgment, that on a day wliich " shall be at leost six months from the date of the " said jud^'ment, the '-.id lands shall be so reunited some parly interested shall faction of the said Court, : .h lands, or any put there- „.-,.- pl-ice ; and it shall bclaw- tul for every person so sued to prevent the re- union ol h;s land to the domain, by provit^' thit " he hns, within the dtdny allowed by sir-h Taier- |; locutory judijmont; fu!filli;d the concUtioiis of his 'deed ol eoiic;?^sion, without h.)w,'v.T bciri-- '' thereby exnnerat.n] fro.a his sliaie of the costs incurred in the action." The diffjrences between lib' two mode's of pro- cedure are be^inniiuj to nppcar. In that iv^-ainst mo, in the procedure by which any umn -;i;i;l denui'id (tor hin^solt; or ibr hi^ nii- nor cluld of a day old) to have land lliat i,-^ iiilne,— or at any rale not liis,— he gets a jud-mont at once, on the clay ho comes bcfvre tlio one Jud-e of hi^ choice, It that judge !hiak.^j)roper. He may ."-et such judgment, llioii--h I may have had i:o sujh summons as in any other kind of case the law would assure to me, and thoMgli I be abseat— i"- noratit of the fact of his d.'mand. And f can have no appeal ; no '-"dp, even thoUy:h the Ju^igo in.xy have made the mos. ol)victH b]und;>r? But, when 1 !iave a ri^jht in strict law, lo get back ray l.uid, becau-3e t!ie man wlio took 'it of me iias not done with it VvduU he bound hiunelf to do take down and sift his evidence, "'-.^ue my cause again, and after such further cost, trouble and de- lay a3 may be, nerhaps gel my ri-ht at last. As the law stands, without this Jiill, the Seig- nior can sue his cemitaire on this ground of com- plaint, any day ; and when he has proved his case, IS entitled of right to final judgment. He docs not so sue, because itjs not practi'^. 'ly worth his while. This part of this Bill pretei ■ to help lum ; offers him the boen of leave to : ue any number at once, by way o m^ing on hi nands a case ihat never can be got inrough with ; and as- siues him in any case, of some extra loss of time and annoyance, to say the least, in the conduct of his cause. -on express pain of tbi-l'-iture of the lanii -as the condition of lii? having it ; after wrilten plead- ings fyled as of right,' with all delays of riirht, ovidijiiee taken in writing, argu:i;.:nt by Couai;ei beloi-o the Court, (the Superior Court— ;io 'I ^-"-- — t.|..v.. av.i v^»y.|.L itU Olio Judge can be trusted here,) after all the co--i<>r. klu v*».«4..»^. :.. . i - — — -•••■; r, ,t,^ T_v,!tinv!. Jii cijircss icriiis binds him, ai, ' .vhichofold meant (and was at law enforced a; .e.u;in<) not mere clearing,' not mere cultivation, but literal residence upon the laud. " 53 " On the one hand, if, when any man demands my land from me, I answer that it is mine and ia not wild land, he has only to reply, and is (according to the new dictionary which under this Bill will be wanted, to interpret the Queen's English) " it is " not yours, and it is wild, — because you never " alienated it, and though cleared, was not " cleared by you." On the other hand, when I bring him before the Court and complain that he dies not keep hearth and home, " oh yes !" he will say, " I do ; that is to say, I do not, but I " have reserved it for firewood, and I cut one *' faggot last year, and shall cut three sticks this." I trust I have not spoken with too much levity. Sure I am, that I feel none. I feel the matter to be grave enough. In one word, the old system gave the ccnsl- iaire hardly a chance against the Seignior. It was bad ; bad especially in this. I ask on the Seignior's behalf, for no restoration of any part of it. Under the system proposed by this measure, as such restoration, the Seignior can have no chance against the censitaire. 1 have good right, in the interest of all, to protest against it. I pass to the third part of the Bill ; that which undertakes to treat of mills, water powers, and Banality ; and which extends from the Twenty ninth to the Thirty second 'Jlauses, both included. The Twenty ninth Section is in the following words : — " XXIX. And whereas since the said cession of " the Country, divers Seigniors, Proprietors of " Fiefs in Lower Canada, have imposed on lands " conceded by them, rents exceeding those at " which such lands ought to have been conceded " according to the ancient Laws of the Country, '• and have burthened thn said lands with various " reserves, charges and conditions which impede " industry, delay the settlement of the Country " and check the progress of its inhabitants ; and " whereas it is just to remedy such abuses — Be " il enacted. That no Seignior shall hereafter be " entitled to the exclusive use of unnavigable riv- " ers, except such part or parts of the said rivers " the waters whereof run through or along the do- " main reserved, or hereafter to be reserved by " him, and through or along the lands and lots of " land acquired, or to be hereafter acf]uired, by " him for Ills own private use ; and any agree- " ment made betrt-een the Seignior and the pro- " prietor who has the domainc utile of any land " ncld by him d litre ih ccm, in any Seigniory " whatsoever, with the view of depriving such " proprietor of ihcright of building mill, or oth- " er manuficluring establislmienls {antnsusineR,) " is hereby declared to be null j and every such " agreement shall, to all intents and purposes be " hereafter considered as not having taken place, " whether the same be slipuhited hereafter, or " made before the passing of this Act." The reference to excessive rents, is here out of place ; and I suppose must have found its w;,y jn'.o the clause, by some error of copyist or print- er ; and therefore 1 will not here speak of it \ But as respects the reniaiide" oi tliis cliUsc, several considerations suggest thenisolves. It is drawn, as though all that is obnoxious in the Seigniorial tenure, were the coiiseijuonce of contra?'? which ^eigni^r? h;\vf* insssts'!! n-.-. !T\;«Ktng in contravention of the ancient laws of the coun- try. Such cannot bo the case. Tlie heaviest of the burthens of the Tenure result (independently altogether of contract) from what I may call the public law of the Tenure. The loda et venUs or mutation fine of a twelfth part of the purchase money, payable on every sale, the burthen which more than any other presses upon the public, and retards improvement, — and the right of banality, or exclusive privilege of grinding grain at the Seigniorial or Banal J^^ill, as it here exists and is maintained by our Courts, — are no result of spe- cial contract, but arise out of the law; the former, out of the old common law of the Custom of Paris ; the latter out of the local legislation, for Canada, of the Conseil Superieur de Quebec, and of the French King. And it is these, w'hich form the comparatively onerous and objectionable part of the Seigniorial system, as it here exists. The mere fact of a farm being burthened with a ground rent of at most a few pence per arpent, is a matter of far less moment, — in fact, a matter of no great moment in a political point of view. And as to the other special burthens and reservations stipu- lated by some contracts, they are practically of still less consequence ; being many of them little more than waste paper, not enforced nor likely to be. The lods et ventes and banalite are what press the most ; and these, as I have said, are not the result of Seigniorial cupidity, but of legal enact- ment. To return, however, from this digression. The true question is: are or are not any particular clauses and reservations between Seignior and censitaire, illegal, — repugnant to public law, — so that, although agreed to by the parties interest- ed, the law will not enforce them 1 If the iaw gave me the tight to make a contract, though the making of such contract may not perhaps be for the public interest, no man has the right to require afterwards that it be held null. It was a legal, binding contract, when made ; and such it must remain. Further, the burthen of proving that a contract is thus repugnant to law and null, must rest with those who assert it to be so. Have they, as regards this present matter, cited the text of law that declares clauses of reservation by a Seignior, nuin Or any Jurisprudence of our Courts, that might be presumed to show the law so to be 1 There is no such law ; no such Jurisprudence. — They are characterized as pre|udicial to the pub- lic. If so, it may bo a public benefit to get rid of them; but in getting rid of them, we have at least no right to punish the one, and to rewaid the other, of the two parties who originally agreed to constitute them. Take measujes now to put an end to them ; put things as they ought to be ; but do not say, the public has changfld its ..lind,— what was once lawful, sliall be s no longer,— we are going to make a. new world, and so doing, we mean to enrich or ruin whom we may. The enacting part of this Section proposes to deal only with one description of reserve clause in concession deeds,— that, namely, having for object the reservation from the censitaire, of water-pow- ers on non-nuvignble rivers. All such water- powers, it is proposed to declare to belong t-) the censitaire holding the adju-cnt land ; all clauses to the contrpry in the deeds of concession, it p'-oposes to declare null. ^T„v^. .(;:, qitpsfinn of the right of property m these minor rivers and streams is tolerably com- plex ; and its solution in each case luesented, I &^ must depend on the particular circumstances of such case. It is impossible, in a few lines of an Act of Parliament, to say anything declaratory of the law about them, without doing the greatest injustice to all sorts of people. Nothing can be more certain, than that undor the old French law, when a Seignior (himself having the droit de pcche, or right of fishing, with- in his Seigniory) granted land bordering a river, to a ccnsitaire, i(hn did not in terms grailt also the right of fishing tlierein, it was prosunied tbut lie kept it. The censilidre, to have the right, had to get it. If his deed did not show that he had got it, iho .Seignior was luidorstood to have letained it. 1 am not saying tiiat ihi-j was as it slinuid be. I am not urging it as a doctrine to be now piaetically enforced, as ^f old it was with nil tlie rigour p.os- sible. 1 cite this rule oi the oM liiw, UKie'y as showing beyond a doubt, thutbv law, the censi- tairc who lield the land did not as of course hold any right approac-hing to that of p.-operty in the water running pust it, -had not even the right to fish in such water. ThoconespondeDci: b.fween Messrs. Beauhainois and Hoi-cpuirt. and t!ie Freu'^h {^vernmont. of the year.-., ViVA and liJa, (j.;i;;v.,s 31 and '.i'l of \oliun-" 1.) on which I have airoHily remarked, (if authority were wauling) i,-j decisive of lliis point. 'I'll..' Governor and J'ltendant, it will he remembered, wished to oblige the Seminary to grant this right of fishery to all settlers ; but "'he King wouUl not so lar change the law. as at a!i to fetter the free action of the Seminary ih.al respect. A constant sueccs.iioa ofh'ual do'eisions in the Province, idso alteU the ijgonr with which tin's rule was niaiiilained. 'J\vo OriluiiaanvM or \\vh'- ments, in imrticiua!, i may allude to, rem Iced liv 31. Begon, the one in I7,',3, the other in J'/.'iO, (see pages 8;j and 1;J3, of voluia.' 2,) in th;? niftter of a somewhat (dislimitr dispute betu'oen tiie Sc ignior of rortneuf, and two of his c^nnluins. I'h.r.Sci- gnior comi)iained of I .vo of his cea^iiuira whWe deeds gave them no right to Jish in front of their lots ; allcgino; tliat ti;u.;:;t, on groui:d.^ of [.'uMic i-.oliey, to be the land the owner of the water in front of it, or to have the ri'.rhl (on payniL.il of the fair price) to become so, I canuiuleislaiidthepio|io>.ition. If that is to be adopted a.s a new principle oi public policy, let it be. uncalled. Contrive the maehineiy for elfect- .ngtbe rofpiired change ; hut do not declare away lh owner of all lho„o small slrcm,?. The doctrine, thai tlio V, at er.'.: of till' smaller livens were in France the I^roperly ol iho llmt Jiidiricrs, is undoubtcdiy the o|-.inonof many writers ofhi-.'-b mark : hut many iigiinr. nisoof high n.ark. think dilK-renlly. J\o {lucijoii nrising out of the ohl law of France, has l;.rh..|is been coiite.'Ied more ke.'uly ; oral this iM'c nune divides the opinimis of the able ihph wiio iiuvo examined it. A-, to v. liicli .side has the we.g'ii of uii'Lority, or the abstract Iriilh of the cn.se, f won hi not wish (icfei ring lo the subject iu. 1 do inciilonttilly) to be ur.deriilood i\» ven'lur- nig to oili.r a strong o) iiii(,n. Ihil ci itainlv. the iiKist nitislaciory Mork i have h- uii able to'i'iid ou Iho .subjecl, that of Chnnipinniiild good against them. In'o one ever t!iouj-ht of thri doctrine, thai, ihti stream in contro-. crsr"c:>;!ld" tielong 10 a CemUuirc. iinioss by reason of s)me '-iuajuivocal grant made in hi.^ f.ivour i.y ihe iudi,-- mor (whiclK'veril niighl he) there and'ilien held, iiy presunipli.))] of law, to be tik'Ii own'T, i-MUce Ihe abjli;ioii of till fi-iiJality i.i Fran'T. the qu,:ition hai tlicre nv^u.n.d a new aspect ; ijiit the old controversy remains unseltleil. On ;hf ; jisnu.npTjoii that the stivams bei'ju-; d to the Lord i cL'lhi! Fief, they must h sve passed, uiider the le- ' and not the Crown, is such owner. On ei her supposition, the censitaire (unless his grant be ia such terms as in law may be held to pass tide to him) is not such owner. But the case does not even rest here. Num- bers of the grants to Seigniors, as I have had oc- casion to observe already, in express terms give them Ihe pruperly of certain rivers, or el all rivers in th.^-ir Fiefi. I have only to-day had placed in my hands tho original document by which the Flench king ratilied ihe grant of the Seigniory of Rimouski ; and iiin so many words grants " th-j rivorKimouski" and so much land adjoining it. There are som ) scoics of sueh grants. ; and sores of otbi Ts ihit give rivers and s'reams in general l-nns; noup, that imply th? idei of not giving them. ?vo\v, in iMseo where the grant of sUeanis is mentioned ii th? instrument of concession, it mu-t b*' clear tint th'^ pioperty in such streams IT uited w>is n')i given as an incident o! the Justice, but as part of the Ft',/. Jnd..-cd, it was someiimes so i'ive.i, where no Jii^ticc at ail was granted. Theio arc cprtainiy cist's, theiefj'e, and tlnse no' (aw, where it is iinjwssibie to hold the S^ig- I ior's righ over s'rerms to have ever been that of i!i.;Jj/ ;/,;•(>,-, —-'.vh.;,-! it canno'. th" Orow.'i, — where it must he his, unless im (rsnd thi?, i^! m-ittef of iei^al inference fiom have passed to the leeJ? of concr-.s^don he may have s/ranted) he be gi.)lation whicli dcslroyci to ihe ccymi! lire of tht; IJu! tho./(/:?;j.; lus Jut'tice an ' ihe Seigniorial Tenure, land :uijo:ning. On the tssumpti >n t!i tt tiiey were the pioj)^i;y of the Lord of the JusUr.:, ih.'y must liave p;\:ieu to the Stale. As ot' old in France, ih; SlUeha! ilj vantage gio in.l, in ail conlroversivs with the in- dividuil. ILii, notwiihstaiidiiigthi*, the contro- ve,3y cannot bj said to ho yet s-.tilcd cilh-.r way. Jn Canada, t'le stale of things has always been, ill these respect#,ina!eri.>nydii[.!rent. 'I'he S'>i:i- ^ ni'ji, grantee of a iV./, was not always c .astiiui- | o<\iiJii-:fi:i'V\ though iie wus so in 'mo?t cases ' ^ ''■•■/■'■/• ntle.ist ii!v.iiys iitild a i'//, and ' /"iVy were co exlt;n-ivc. Kvery :^ei^)uar Hani Justivler was, therefore, in one ■ Qflauty or o;h'.-r, originally the proprietor of these 'l Wrtiens, as nell ns ofilieland, withii] the limits ' of h;s /'(./. (H'coiiise the K.,vi;-ali riveis { (ijjoiigh ill some gran'« of early d.ile oxjM'es-ly 1 given awiy)wo!e by VM^U'.'oflhe pnbln: law, , und Ihivo remained, the piopcrtv of the Crown, ■ whether of France o; of Grt-a'. iJrit.un. li^oic ; liera who li.?kl Ihat the iion-navi^ahle sire mis ! vveraorijitia'ly th^ piop nlv of the S,igMior in his quality of /;(s7(V(V/-, may hold fuilher (as w.vj I hinted in liiueaie of Honsoiiirjull tv, Cliv.i) Caf by reason of the Cro'.vn nlono «^{erci^ill!^ juried ic tionol any kind under our puhlie hw, such ligli of property bus veiled in tisa Ckavh ; though suol) inference, by the vviiy, ndnif^ of grav! cmi- tlovpi^y. Hut ivun udiiii;(ing sncli iiifent'Ce. w.- '. ooinc to th.' conclusion ih't til ■ Crown, tind not ' iho c.:,nil,t I't} must be the Irno owner o( lb- fe wc ! lers. Jf, On the oihfrlintid, therebe unvllnvin this reasoning,— if ih" prop 'rty v,-t!nt I) the St-i^f- : nif?r ns Rrautuo of the I'irf, ihid not as ai.ihlee of the J'fv/jVc,— or if, g.iliig to him in hist i!ii'r(|inili found to h^ive putfd with it to his C'^ndlaire. In any and every siipiiosalde case, however, the fact is patent, that the ccn^Huire, unless liis deed — ii'tornreted as the lavi> shall l)e found to in- proprio- is given ihein to him is nolllu ■ troams. And wli 'llu r, in particulai ov/n can claim to be such jiroprielor, it all events not Oiv the L(gi.--lature to .•■ay; this man, v.Iio had no right to s^hrtll h'tve both land and water and ) whoi;i both were givpu, shull have ni ]trint'ipl,!, you m-'rht as jii«lly s ly, ter]>ret li — ' tor of ih ■ case.-;, t!r ■ or not. il is .step in ;-.;; ! the watf . tiiat iTia: neither. that Ihe . :.d on f.ich xidoofa sd -un must hcioug i>> ihe ov,nf r nf the si renin, iu. ihal the stream must belong to the owner of the land. I ur'i no! wiihout higti local iuilhority. in taking this view of llu-: pact of my cu.;0. 1 have had placed in my hmds, .i public doeument — nil au- iheiitic copy nf nn order in Council, of iln; JOxecn- livi? of tlis I'roviiu'o, bivaring date as hiie as LS18, and having nderonee to tiiis ipieslion. a-; it thou aro.50 fordeei-jioii by government within tho '-eig- niory of Lunston, n jirnperly belonging to the (■rowii by private litle. A nnnt oCtv.i iI'At cxisl-.d there with a_ mero 1 to the ^'ipior's rovoealion to "■ • i.,i- < .^1 r I'M- cevtaiii special purpo.vjs,— had applied frtrn commutation of leaure. Tho qucs- lioji prrse.ited its df, whetli-'r Ity coniiiiuling liie '.'till,-,! Ii'i would bi conin the prop.ilor ol' bolU Wilier iviwer.s, that is to niy ol itio t.tieam in i'» enlirely. If so, the whole "value of the strcain would buvo to bo taken int i account, in fixing hi.H commn'.uion money. If not, not. 'J'his quosiion, in the liucUtiienl I sjieaiiof, is iuliy»vaoiy trcatcil. fi is therein laid down, that iinn-iiuvigabte ^ii. .irns ty, it be no! h^-ld to havo \r.[sfvi\ nmx\ him in con- dearly belong either to the S'iuinnir ILini J 'Sti sequence of hi-i mnreiy losiin?; the riuhis of juris- dio'iai that were once nti,ich' d lo i*,'l "Sd-ni.ir, 'If/' or t<» iho S^'i^nvur F^'itut; that on "'Ihrrsup- ]i^.'ii)j'. lids stream hud become 1 lie prnjie/.v of 56 the Crown ; that this eeruitaire was wrong, if he thought that he could become the proprietor of the other water privilege, by merely commuting the tenure of the land ; that therefore, the value of such other privilege was not be taken into account in estimating his commutation fine ; and lastly, that (to avoid the risk of a doubt as to the intended effect of his commutation) a clause should be inserted in the deed of commutation, ex- pressly declaratory of the fact, that the water power in question remained the property of th Grown. That decision was a right one. The Seignior who has once acquired the stream, and has not parted with it, has the right to hold it as his own. No man has 'he right to take it from him. You may. if you will, provide for its being taken from him, as you may for any other property being taken from him, for any sufficient" end of public policy; but he must be paid for it, and faid its full value, when it shall be so taken.— t is not to be taken first ; and be left afterwards to prove the fact and amount of loss thence result- ing, and to pray for an uncertain indemnity, which he may very likely never succeed in getting. Yet this is what this section proposes to do, as to this matter. The thirtieth section proceeds to the kindred subject of the right of banality; and reads thus :— " XXX. The right of the Seignior to require the " cemitaire to carry his grain to the banal mill to *' be there ground, on paying to the Seignior " the ordinary toll for the grinding of such grain, "shall hereafter be considered as applying to no " other grain than such as is grown on the lands " held o titre de cens in the Seigniory in which " such baiial mill is situate, and is intended for " the use of the family or families occupying the «' said lands." ^' ^ Now this right of banality, I may say without doubt, (for I am confirmed in so saying, by all the jurisprudence of the Ititendants and Courts before the cession, as well as by that of the Courts since) exists in Canada by virtue of the law, and independently of contract between Seignior and ce.mitaire ; although it did not exist in France within the local range of the Custom of Paiis, unless by virtue of such contract, or other sufficient title ; and it involves the right on the part of the Seignior, to prevent any oilier mills than his own, from being put or kept in operation within the limits of his banal- ity,— to prevent any miller beyond those limits from beatiui up for custom witjiin them,— and lastly, to oblige \mccmitainH to bring their grain for grinding at his mill, on certain fixed terms, as to price and otherwise. Under the Custom of Paris, r h.wesaid, th right did not exist at com- mon law ; but it con always be enforced, and was enforced, to the lutter, whenever any ccnai- taire was shown by his deed to have ngreed to itj; and it could even be enforced, ai.d was mforced againstall the world, whenevfr the Seignior could , a.rc.u.y ciicci. deciar t-L'^^lfr'.'''^^'''^ « '- /,7r;; n,/„W."-u suf- ! 1,. built i;!;.^^ iicient title to warrant such enforcement. I do not here go into the detail of what constituted such tUre rnlable ; tht^ consent or recognition of such nnil Elliott U t%r/.K.y^ff i^r. ^C «ll »!.« .'i...' 1 . — ._.. _ , — J ,! ••[ niT i!!tr t.x;f: It:;:. ■(•.-;, niiU so forth. The only important point, here, is the fact, that in Canada, the slate of things, as ex- isting under the Custom of Paris, was altogether changed, by two leading arre/j of a legislative character. The first of these was an arrtt or decree of the Conseil Supirieur de QtUbee (a body undoubtedly capable of making such a law) under date of the Ist of July, 1675. This arre^ ordained," that all mills, whether water " mills or wind mills," — by the Custom of Paris, no wind mill could be presumed banal — " which " the Seigniors shall have built or shall cause to " be built hereafter, shall be banal." The other was an arret of the King himself in his Conseil d'etat or Privy Council, under date of the 14th June 1686, which ordained " that all Seigniors, " possessing fiefs within the limits of the said " country of New France, shall be held to cause " to be erected banal mills within a year after pub- " lication of the present arret ; and, the said delay " expired, in default of their havmg so done. His " Majesty permits any persons, of what rank or " condition soever, to build such mills, attri- " buting to them to that end the right of bana- " lity, and forbidding all persons to disturb them." By force of these two arrets, every Seigniorial mill was constituted a banal mill ; and every Seignior was declared to have the right of banality it, it is in respect of such mill. He miaht lose true, by non-user ; and in such case any one else might acquire it. But unless he did so lose it, it was by law his. And as to his losing it, I should perhaps say a word or two. To any one not conversant with Lower Canadian law, the second of the two ar- rets 1 have read, may seem to imply that a Seig- nior who should not have built within the year after its promulgation, would ipso facto lose the right. But such is not, and never was held to be, its meaning. Like the first of the two ar- rets of Marly, it merely enjoins a duty— so limiting to a certain degree a pre-existent right W'hich it admits ; and after such injunction, it pro- vides a remedy against the possible case of failure to obey. That remedy consisted, in the right to be givpn to any one else to build mills, and so acquire the banality of the Seigniory, to the ex- clusion of the Seignior. Till tliis shouK, have been done, the Seignior, though he might have no mill in operation, retained his right to have such mill, whenever put into operation, held a banal mill. And any other person, in the meantime wishing to avail himself of the remedy provided against the case of the Seignior's neglect to build, had first to summon the Seignior by legal process, so as to establish judicially the fact of his being in default, and thereupon to obtain a judicial sen- tence forfeiting his right, and attributing it to himself the plaintiff. It has been argued, with much ingenuity, that the right of banality, as introduced into Canada in Hi75,did not comprehend (as in France, wher- ever oxisteiil, it nndoiibledly did) the right to pre- vent the working of any other mills in the seig- niory. Th<; arret of It)?;'), after the words 1 liave already cited, declaratory that all mills built or to shall 1h! banal", proceeds thus : — " And thcreimon, that their tenants who " shall be bound by the coMfincLs of concession '[ that thry shall have tnken of their lands (qui sc ■' seroni oblii(cz jiar li'$ iilrvs lie cnnrcfsion quails " aiiront prisiie Icurs tvr res) ishM be bound to lake " their grain there to he ground, and to leave the " same there at least twice 24 hours, after which 51 i *' it shall be lawful for them to take the «ame away " if not ground, and to take it elsewhere for grind- " iug," «c. And it has been urged, that the only banality granted here, is a banality granted against censitairet who by express stipulation to that ef- fect in their deeds should have subjected them- selves to it ; that the right was therefore not an absolute right of inejief, but a mere right to en- force a certain contract, if made. On which lat- ter supposition it is further urged, that it could not go the length of preventing any one not bound by such contract, from setting up a mill within the fief. This view, however, has never been maintained judicially ; on the contrary, in the last case decided upon the subject, — that of Monk vs. Morris, (see L. C. Reports, vol. 3, p. 3) decid- ed quite lately by the Superior Court at Montreal, — though urged with the utmost ability by the defendant's counsel, it was over-ruled by the Court. And all former decisions, before as well as since the cession of the country, are against it. And with good reason. For, if such were the meaning of the arret, it had — so to speak — no meaning at all. By the Custom of Paris, any censitaire who had bound himself to grind at the Seignior's mill, was so bound, whether the mill was or was not bai.al. To say that a mill was banal, was to say a great deal more than that cemitaires, thereto bound by special contract, must go to it. The mill need not be banal for that. The word banal was a word, the meaning of which was well known, and of wide application. There were in various parts of France, banal rights of | various sorts — banal ovens, banal wine presses, and so forth. And the term everywhere imported the ban, prohibition, or exclusion of all rivalry within the territorial limits of the banality. It everywhere imported also the holding all of who came within its range (irrespective altogether of contract) to the obligations it imposed. No censi- taire within a banality could escape from it. The latter part of this arret of 1675 regulated certain details of procedure and so forth, as regarded those obligations. But it could not, and did not import the freedom of any person bound by a deed of concession, — that is to say, of any censitaire or holder of land under such a deed, — from such obligations. On the contrary, its very letter imports precisely the reverse. Now, the clause of this Bill which I read last, this thirtieth section, does not indeed in terms profess to abrogate this right, of excliijion of other millers from a seigniory. But — and more espe- cially as read in connexion with the preceding section — it tacitly imports such abrogation. By the -A-erity- ninth Section, the Seignior's water- powers are declared to belong to the cenxilairc, and all agreements by the fcnsj7';irc to the effect that he will not build mills on his land, are declar- ed null. By this thirtieth Section, the right of banality is spoken of as though it were a mere right " to require the censitaire to carry his grain " to the banal mill." Such enactment and recital once passed, it is clear that any one could build any sort of mill i;i any seigniory ; that this part of the existing right ol banality would bo lost to the Seignior. ivna it IS oCviOiis to ieiriaik, that this is ifuily the only part of his right worth keeping. It is that, through which alone he can praclieally he said to have any right at all. In former days, Seigniors n8«d to tue etniiiairei, to oblige them to grind at their mills, or pay the toll of what they ground elsewhere. But those times are past. It is worth no man's while so to sue now. And no man does so sue. The Seignior's only hold is through his ownership or reservations of water- powers, and his right at law to stop rival millers from competing with him. This, it is now pro- posed most effectually to take from him. It re- quires to be paid for, before it is so taken. This clause goes even further. It would give the censitaire the legal right to evade the grinding of any of his grain at the so called banal mill ; for he would only have to sell his own grain and buy other, or even to exchange it away ; and he could then say, the grain you claim to grind, is no grain grown here for my family, — what I raised here was not so intended, and I have parted with it, — this that I am using, I got elsewhere. The eva- sion is of small practical moment; because such suit? are never likely to occur. But it shows the spirit and tendency of the Bill, — that, besides giv- ing every one the right to build rival mills to mine, it should thus go on to give every one the power of evading the nominal obligation which u professes to leave in force, to give my mill a certain mea- sure of preference. I repeat ; I am in no wise contending for the maintenance of banality in any shape. I might, of course, say with truth that the banal mills of Lower Canada grind at a considerably lower rate than obtains any where in the country, beyond the limits of the Seigniories ; and that they do their work well, to the satisfaction of those who use them. Indeed, the Seigniors can be compelled at law to keep them in good order ; are under stringent legal liability in respect of rate of toll, and quality of grinding. But I have nothing here to do with all this. I am defending no part of the existing system. I only insist, that its pe- cuniary advantages to my clients, are not to be taken from them piece-meal and by indirection, leaving theiri to prove their past existence and value, and beg for tardy, inadequate, uncertain compensation afterwards. I have not quite done, however, with this mat- ter of banality. The Bill contains two more Sections, the Thirty-first and Thirty-second ; which I must read, lest I should be thought to paraphrase or represent thenr. otherwise than as they are : — '• XXXI. Every Seignior having more than ",one hundred ccnsitaiies holding lands in his ccn- " sive, and who, alter the expiration of two years " from the passing of this Act, shall not have " constructed at least oue banal mill for the grind- " ing of the gro-" in his Seigniory, and every " Seignior who, after the expiration of two years " from the period in which there shall be more " than one hundred censitaires holding and settled " upon lands in his censice, shall not have con- ' structed such mill, shall, as well as his heirs " and represpntativps lor ever, ferfeit his right of " banality in such Seigniory ; ar.d it shall be law- " ful for any person to construct one or more '• mills for the grinding of grain in the said Seig- " niory, and to grind or cause to be ground in any " such mill ail grain brought thereto, without be- "ing liable to bedistuibed by the Seignior as "such, in the enioymeiit of the said rights; but " no such person shall be entitled to exercise the 53 '' right of banality in respect to any mill so con- "structed. ''XXXir. And whenever a banal mill shall not be in proper orcier, or shall be insufficient for the gnruiing of grain belonging to the eensitaires ,, ?^ the Seigniory, or of the part of the Seii;niory m which it issilua'.e, any cc7isit(tt'! seftled upon any land m such Seia:iiiory shall be entitled te II sue the Seignior of such ."i-'ei^niory bothre the Superior Court J^ilIing in the '^Di?lriot in which 'such mill is situate, for the pu.pnse of obli;;iniir ^'1 him to repair such mill, or to place it in siic'h a " state as will make it su/Iicient for the wants of II the censiYrtiVi-g; and it sbail be lawful for the '• said Court, to jirocecd and t'ivo such jad^mcnt '' m every such action, as to law and iuslica shill " iippertain." ^ The light ofbanalifv has l.ren cut down to a saadow; made va!i!o!e,v? to the Sci'n.jor. liis water-powcis are taken from him. Evrry one may build mills to compete with h's. No on^ need prefer his mills to anv others. TvM they are still ironically call?d banal n;;!ls. And enact- ments orrpy:ulation are proposed a? to such mi'!' Iieroalter 10 be built; as t!rHu;h it were possible anyshou.d ho. And A:, -her enactment is pro- posed, to make it clear that the Seignior's obliga- tions a^j to his cxistiuy^ mills are in no wi?o to' be ahat'-c, Baiiul in uoMAmr but name, for any nse he IS to havcliom them, his rnilisare to be every w-hit as banal as thev ever were, for all purpo- ses of annoyance to him by any ccmUm^. With no hold lelt to him upon his csiishnres, every on? 01 them IS (o hr.,-e iinn hold on him. A^Min 1 &ay, all this is of a style of If-^Islation that cannni he. We arrive at the fourth jiart of tlie Bill ; that which treats of honorary ri-lits, pre-emption, (re- {/•«(..) rents and hypdljocary privileges ; cxlond- Jt!- Irom the j'hiily third to the Foiiv second ^oc- tiops, both included. On the Thiity third Srction, wliich propo,^" to af>oi;sh all hoiiorillc li-htsof f_vi;riiiors, 1 H'hmI inake no comment. M v clients will be hain)v il' abandoning \h'm-^ucha part of this claiiso ! have no objection toof- '''!■. J hat property be not snbjcc'i io rttnn' when publicly .sold mid n' proccs. o,' I iw, h an on- iptmcuf wiiich my climt.s would iiui be disponed -T complain. The remainder of the clause, how- ever, they do complain of, slrongly. ,'■' Hnkeiiu- u iiuienvitier clear to 3Ieinl)crs of nils iionoraldc Ilou.^e. iiolTOnversant with Low- er t aiuuliau law, I oitjit, however, (o go into ^onv explumition of \vh„i ibis relr„il is. tiv t'he « unoai ni j..,ns, when land has been gran'ted d uiiw Whenever he did so .slijuilate, lie enjoy- ed the right. And such stipulation was of co'ur.so common cnongh. The obviouy value cf the stipulation, a.i a pro- tection agaiu.st fraud,, — more osjiecialiy whore, a.s Was thecase in Canada, land;; werc'coimiionly granted low, and Seigniors looked for Ihoirfuliuo woallii mainly to tli.^ proceeds of their banality a"d lo'h to accrue theroafter as the laud .should ac- quiro value, — made ll;e stipulation lieio, from the earlio.'l period, an almost Universal n.-j;ige. And such it has conlinurd ever finfo. 'J'lio light so slijailatrd is commonly termed, as ill this .ceclion of the IJill, (hut of t'he " rf/r«/7 ronrciUionwl, " or rctrail .-.tipidated by contract. And it is, precisely what this designation imports. Now, thi.-! Section liiet proi)o.. the right oi' lelrail afterwards, is not oin: thai he ought, 59 on equitable grounds, to have. And I know of no Seignior who would care to object to its being done away with, in that case. But the Section goes much further. It would enact, that though it is matter of binding contract that this right is mine, I am not to have^it, to any practical use whatever. I am not to exercise it, unless I prove the sale fraudulent. Why, if I can prove fraud, I can of course at huv have my lods et ventes, from the buyer, calculated on tlie value of the land — its true price. Nino times out often, U would better suit n.'e to have that payment, than to buy in the laud. i3esidos, the endfor \vluch 1 nia..li.' the coritract, was to guard again.-'t I'raud tliat I might feel fuire enough of, but cini'd not provf\ Nine times out often, i sliould very likidy f;iil to prove the fraud ; however sure 1 luight 'bo that the price staled was a fraud upon me. This rc- trail hWiG only reliable protection I can have. 1 stipulated it, huvi'ully. it is my ]c'j:\\ riidit. Why is it to be taken away ? Js it suid, that like others of mv rights of pro- perty, it is a kind of right, which 'had better n^t be ? Take it, tlien; hue indemnify me iirst. for its loss. 1 have no right to object, I'do not ohj-ct. to any chaiiging of the law for the public good ; but I urotest again.=t such changes iuvo!vi)i*io!!. IMany at that time had Imrdly a setlkr on liu'iii. Since then, what has been the cniirse of the Government and Legislature and (Jourls of Law, that Parliament should now be called ujion to reduce the rates at which lor my pied' cessors may luive >,n-an1(d any portions of our property? If in old time, the control of (ho Jntendanl would at all events have tend.'d to keep down oin- i ales, it at least tended to force men to lake nioie of our land than Ihev otherwise would have done ; and so would have helped otT our land sooner, nnd made it .sooner valuable (o us. If g: anted years ago at lower rates, we should ever s^ince have bj-.-^n v\ receipt of revenue from it, en.^nal bs M-ell as fixed. As the case has been, from the d lie of the cession, enormous and most impiovi* dent grants of land in I'ree and common soccigo have been cousfandy goins: on. (ireat difiicul- lic...— not preci:>cly legal diiliculties, to be sure, 60 but still real difficulties — have been thrown and Jcept in the way of extending settlement in the rear of all the seigniorial country. The emigrant population from the old world were drawn by a variety of considerations to the free and common soccage lands of their countrymen. The French Canadian population v/ould net push back into the forest, without their churches and cures. In- stead of being driven back, as of old, they were kept under special attraction, in their front settle- ments, by the singularly unwise policy which long discouraged and retarded the establishment of new parishes, the building of churches, the or- derly settlement of the clergy of their faith in the rear of what was professedly the land reserved for their especial settlement. In the meantime, •while much of my land has thus lain unproduc- tive, the value of money has been falling, and the value of land rising. My predecessors and my- self, left free to make our bargains with whom •we would, and as we would, have contracted }vith others equhlly free, und on terms contraven- ing no law whatsoever, past or present. By what show of right are such past contracts to be touched 1 If touched at all, on what show of reason, are they to be cut down to the measure of this two- pence currency per arpent ? If the two sols said to have been seldom exceeded a century ago, cannot now be maintained as a maximum for contracts of yesterday, the process of doubling such tvvosoZs does not give us an amount, accord- ing to the values of these days at all equivalent to the two sols of the year 1730. Besides, with what pretence of right, fix a maximum in money, at all ? Because no one knows what may be the real value of twopence currency, a few yaars hence 1 Because the va- lue of money isjust now changing more than any- thing else whatsoever % A bushel of wheat will go as far to sustain human life, fifty or sixty hence, as now. But two-pence currency in mo- ney ! Who knows what that may be worth, — even a few years hence ? When men have free- ly bargained for payment in kind, of set purpose to avoid •his risk, what pretext can there be lor applying to their conventions that very money- rule, which they had a right not to adopt, and de- liberately did not adopt, as the rule of their trans- action 1 True, the change is one to cause heavy further loss to my clients. But is that reason enough 1 The thirty-eight and thirty-ninth Sections pro- pose to enact as lollows : — " XXXVIII. No sale under writ of execution " (par (Ucret) shall have the effect of liberating " any immoveable property held d litre de cc7is, " and so sold, from any c^t' the rights, charges, " conditions or reservations established in respect "of such immoveable propnrty in favor of the " Seignior, but every such immoveable projierty " shall be considered as having been sold, subject " lo all such rights, charges, conditions or reserva- ' tions, except in so far as they may exceed those " allowed by the Section — of this Act, without " its being necessary for the Seignior to make an " opposition for the said purpose before the sale. " XXXIX. If, notwithstanding llie provisions "of this Act, any opposition d'fui de charge be "^ made hereafter for the preservation of any of the rights, charges, conditions or reservations " mentioned in the next preceding Section of this " Act, such opposition shall not have the effect of " staying the sale, and the opposant shall not be " entitled to any costs thereon, but it shall be re- " turned intp Court by the Sheriff after the sale, " to be dealt with as to justice may appertain. " Upon these clauses, in so far as they merely tend to obviate the necessity of putting in opposi- tions in order to the savin* of Seigniorial charges upon land en censive sold by the Sheriff, I have nothing to say. In connexion with the forty-first Section, I shall presently have occasion to speak of the limitation which this clause hints at, as in- tended to be wrought, in respect of the charges to be allowed on such land. The fortieth Section reads : — '• XL. The privileges and preferences granted " by law to Seigniors, to secure to them the pay- " ment of the Seigniorial rights which shall here- " after become due, shall only be exercised for " arrears which shall iiave fallen due during the " 5 years next preceding the exercise of such pri- " vileges and preferences. " At present, they can be exercised for 30 years' arrears. And it may be hard to assign a good reason for proposing this piece of exceptional le- gislation ; unless, indeed, it be such reason that it tends to the disadvantage of th( eignior. There is even a dash of the ex post facto in it, as in so many others of the clauses I have had to notice. — Secure in the existing law. Seigniors have refrain- ed from suing; well knowing that at any time within the 30 years, the arrears due to them would be recoverable as a debt having a certain known priority of claim. But they are to find out their error. Whatever amount of such arrears they may have allowed to run, beyond the term of the last 5 years, they are not to be suffered to recover, as such privileged claim. Raudot, in 1707, suggested a new short term of prescription, against everybody. This propo- sal is against the Seignior only. And yet, one would be tempted to think that he is hardly the man to be so selected ; since his accruing dues fall in yearly, in such small amounts as to make it no slight hardship that he should have to collect them even for the time to come, (to say nothing of his vested right for the past) within the 5 years, on pain of risking their loss. It forms part of the plan, too, we must remember, to cut them down, in those cases where otherwise their amount might make them worth that sharp collection which this section would enjoin. Straws show the wind. In great matters and in small, it is not the Seignior who is to gain. The next Section, the Ibrty-first, is in these terms : — '' XLI. — All stipulations in any deed of conces- " sion, new title deed or recognizance (tUrc-nou- ■' vcl on recognitif) made before the passing of " this Act. in so fur as such stipulations tend to es- " tablish in favor of the Seignior upon any land " conceded a litre de ceiis, with the exception of " land conceded as a town or Village lot, any " rights, charges, conditions, or reservations " other than or exceeding the following, are wiih " respect to such excess or difference hereby de- " dared null and void, namely : " 1. — The obliuali'>n to keep house and home " on the land conceded. "2.— That of surveying and bounding the land 61 " conceded, at tue expense of the concessioitaire. ' " 3. — That of paying an annual rent irede- " vance) which shall not in any case exceed the " sum of two pence currency for rnch superficial " arpent of the land conceded, and which, in any " seigniory wherein the customary rents are below " the said rate, shall not exceed the highest an- " nual rent stipulated or payable in the said seig- " niory. "4. — That of exhibiting deeds of acquisition, " executing new title deeds, {litres nouvels) and " paying mutation fines (lods el ventes) according " to law. ■'5. — Thatof grinding at the Banal mill the " grain grown on the conceded land, and intended " for the use of the family or families occupying " the same. " G. — The right of the Seignior to take back " (jretraite) the land conceded, in all cases of fiau- " dulent sale, or mutations made with a view to " defraud such Seignior, or in such manner as to " deprive h^m of the whole or of part of the lods " et ventes, or other just rights. " 7. — The right of the Seignior to take in, any " part of his eensive, and as often as the case may " happen, a parcel of land for the construction of " a Banal mill and its dependencies, not exceed- " ing six superficial arpents, on payment by him " to the proprietor, of the value of the land and " expenses. Ex post facto legislation again. In I know not how many thousands of deeds, are contained no one knows how many clauses in favor of Seigniors, freely agreed to, at all dates thiough the last two centuries. There are clauses too, of course, not always alike, in favor of the cenntairc. None of these latter are to be touched. But as to the former, though it is most certain that they are not clauses reputliated by the law as it stands, law is to be manufactured to sweep tliem all away, saving only the seven 1 have read. Did I say, saving such seven ? Saving even them — how 'I Why, as to the obligation to keep hearth and home, we have seen that this Bill propose to declare that it shall be held to import no more than the duty ot reserving the land for firewood. That of surveying the land, being no great mat- ter, is left to its natural meaning. That of paying rent, at a rate often less than the deed promises, is curiously stated. The grantee is to remain under our oiiligation to pay a rent, ne- ver to exceed one fatal two pence currency of money ; but in any Seigniory where most rates are below that figure, the payments to be made are not to exceed the highest rate known in the Seig- niory ! Of course they cannot. They are to be cut down everywhere to the two pence; and sometimes, if this clause means anything at all, they are to be cut down to some lower standard. But, to what ? The exhibiting of deeds, passing of new deeds, and paying of lods, according to law, are all proper acts ; but with the right of retrait prac- tically lost, they are little likely to be too punctu- ally performed. As for the barrality and fctyait clauses, I have shown that in the shape they are to assume, they are worthless. L ke most other things that might be worth the Seignior's keeping, they are to go. Jt may save appearances, to take them without exactly saying «o ; but the substance of the act is all the same. And lastly, there is to be left the power (wherever stipulated) to take not more than 6 ar- pents for a new banal mill, due payment first made, of course, the supposed payee being a cen- sitaire. A likely thing, the building of a new banal mill ; after banal mills shall have been made what this Bill would make them. Is this style of Legislation possible 1 It is not true, the bold assumption, that the contracts thus all swept aside, are contracts that the law can disallow. They are legal ; binding. If they were not, no statute would be wanted to put them out of the way. They cannot be legislated away, merely because one of the two classes of men, parties to them, is more powerful than the other. The last clause of this part of Ihe Bill, is the forty-second ; and reads thus : — "XLII. Aud whenever a Corporation shall " have acquired lands en roture and shall have " paid the indemnity (indemnite) to the Seignior, " no /o(Zs e/ wn^es shall thereafter be payable on " any mutation of the same land." I say no more ot it, than this. As the law stands, if land held a cens be acquired by a Cor- poration, the Seignior has his right to this indem- nity ; and if it be afterwards sold, he has his right to lods et ventes. This clause is the taking away of one thing more, — a smaller thing than many, — but something. It is in keeping with its prede- cessors. The fifth part of the Bill follows ; from the for- ty third to the seventy second Sections ; the por- tion of the bill which takes up the matter of the Commutation of the Tenure of lands held d cens. The first Section of the Bill, it will be remem- bered, has proposed to repeal the Acts, under wiiicii UL piuseuL Seignior aii. If 1 1 y,;ars are to be looked up, the average from tlicin all will bealrucravoi- age, than one drawn finm any 10 of them. And in truth, on what principle of'right, is an averao-e of any number of past years to betaken at alT'? Because prices as a general rule have been rising ; so that a money value of .some years ago will be lower than the money value of to-day? Or on what nrineinlp- ns I bnvo nlmnrl.r ii-r^r./-! ->-, ,,-i--. principle turn all into money,— when, as we .shall see, it is not cash payment or even payment with- ^■^^ny^term of time whatever, that is contemplat- «« 1 Above all, why cut the result down, to a mo- ney maximum? Unless, indeed, it be that nothing short of the maximum of wrong that can incident" ally be inflicted on the Seignior, will suffice to meet the exigencies of this peculiar case 1 For the setting of his value on the banality rights of the Seignior over each lot, our Commis- sioner is thu.s directed : — " To establish the price of redemption of the " right of banality, an estimate shall be made of " the decrease in the annual receipts of the banal '' mills to arise from the sui)j)ression ol the right " of banality and from the inhabitants being freed " therefrom ; the amount of the said estimate shall " represent the interest at six per cent, of the " capital which shall be the price of redemption '' of the banality for the whole of the Seigniory, '•' and the said capital shall be ajiportioned among " all the lands subject thereto, according to tiieir " superlicial extent. " Good. But how is he to make this estimate '? And when ! If immediately, what will it be. but ^ a sheer guess J Five yeais hence, or ten 1 Js the i whole machine to sias.d still so long J And if it ; were; lo ^vhat luc i For 5 years or 10, no new i mill may be built in my Seigniory; and 1 may in i that case have lost nothing. The next year, when 1 have been pronounced to have lost nothing, an • enter])rizing luiller stejw in ; and 1 lind 1 have lost ; all. , ^ Further,— tI;ough, peihaps, the ending part of < this_ clause may seoin to bo more my censUuirc^ : busine'rs than mine, — 1 cannot help asking myself, ; why this value of my banality thus to be guessed I at for my whole Seigniory, is to be •• apportioned ; '' amonsall the hiikis subjecf thereto, according ; •■] to th.vir superficial exUnit I " is it merely, thai trie poor ccns//«i/-c_ who keeps hearth and home, by keeiniig np an in'.enliou to cut his iirev,-oo(I. on ! JMarpenlsof land that he can hardly sell for it-5 j very worihlcssness, may have to pay as much to I to clear it from my banality, as his neighbour is i to pay to the same end, for the 90 arpents, all laid I djwi! in grain, ihat Ibrm p.iit of his abuudunt I Wealth j' Ur, is it also, that the extent of my mi- coiiceil^'d lands, which 1 am not to keep, may be made a pretext for throwing only a part of tiio price of my banality, on those v/ho ought to i 'ay- it to me ill full > i j My casual riithts are to bo valued bv the same sort of process as my r!-nts in kind ; that is to Jay, by an average ot lU yeais out of 14. /vgain, 1 ask why J I'er.'iaps," because ii,come fiom lads ct vsdlcs, is the mo^t lluctuafing and uncertain in- come possible. The revenue of the years stuu k out as highest or lowest may allect the average to any concr'ivable amount, or to none at ail f just as it shall happen. For example, liom the pub- lic returns of the quint revenue of the C!'->'.vn, (a revenue precisely analogous to the Seignior-.'j re- venue from lods ct vcntes,) [ find its average lor 38 years ending in 1«12, was X83() 5s 5Jd. The maximum year's receipt during that term was X'2Sot) ITs od ; the minimum £b (is 4d. n )845, It was £3,470 13s 8d; in 1847, £2 3s — d ; in 18.")!, not/dug. But, aside from the objection arising out of these flucluaticns, the chances of course are, tiiat a revenuL thus valued at an average of past years, will be set below its value. In an ol(i country, this might not be so much the case. But we have here a new country, with its fast-cLanging f! 63 I values, to deal with. And there will even be the greatest differences in the working of the rule, as between different Seigniories. In many, it must -work the most enormous injustice. A large partof a Seigniory has been conceded within the last ten years; ita revenue from /o(Zs e^ve/i^es is of the future. Anotherwas all conceded a cen- tury and a halt ago. Is this one rule to be the rule for both ? The forty-ninth and fiftieth Sections direct the Commissioner to issue certain notices before he begins his work; and give him certain powers lor the conducting of his inquiry. On these Sec- tions 1 m ike b.,t a passing remark. His duties are not more all-comprehending than his powers. He can summon and examine any one; and en- force the production of anything. Upon refusal ot any body to appear, o-,- " answer any lawlul (luostion,'' or " produce any book, paper, plan, " instrument, document or thing whatsoever,' " which may be in his possession' and which he 'I shall have been lVfluir^:a to bring with him or to " produce,"' the Commissioner may arrest him and commit him to the common gaol of the Dis- trict,— but happily, not ibr more "than one month otconfmrmiiint, nor with the added pleasure of nurd labor. One hopes that no CcrnmiUioner will ever want 10 see wh^t o'v-ht not to be shown, i'orif he should, ones rights would not be loo secure, By the iifty-fn-st section it is provided, that as soon as he has liniih.Hl with each Seigniory, the Comnii»-ioner is to depoait on^; of his triplicate Schedules with the i'.eceiver General, and arioijior in the olliceof the .Superior Court in the DiUrict • keeping the th; nl hiin??lf. And this done, he 1:= lo -ii'e notice of the fact in the Canada ('Ja7.etto, and m some otiier newspaper of the District, or ad]oining District, as the case may bo. Thus de- posited, the awaiil is irievocabb.'. ib; imy luw^i made the grossest hluri(!^?rs or committed ihemo'-t Hagrant iojustice; but ther.-; is no ar,of\-l. He may ih;d out and confess that he has blmid^r ed ; but even ho cannot amend or revise. Tii^^ triplicates may not accord; but. none can be al- tered, so as to brii-.jr them into accord, and mak" n sure wbit the true awrrd is. The summary judgment that is to give away my land to any person who may want it, is no' to he more" fin if ^t wtlnout appcTl," than is to be this Schedule, or rather, each triplicate thereof,— signed, "that it be not changed, accnrdiu'r to the law of thp Medesand Persians, which altercth not." Unalterable, these triplicate Sched,,' -s of my Seigniory aro^ depo-:ifed ; and their deposit advcr- ti>:ed. Tlio fifty-second section shows the right W'hich is tiicreupon to accrue to each of my cen- situira, in respect of the commutation of the ten- ure of his land : — " LH. It shall be lawful tor flie owner of any " land hold en roturc, as soon as tlio Schedule for " the Seigniory in which such land is situate shall be completed and deposited as aforesaid, to re- II deem all the Seigniorial rights to which such a o u j^ subject, at the rate specified in such ^^ Schedule, by adding thereto interest calculated at the rate of one per cent, per annum on the price at which the casual rights may be redeem- ed, from the day of the date of the deposit of it f^u?"^ Schedule, as required by the clause . of this Act ; and such redemption shall be made " in some one of the modes hereafter provided, " but not otherwise." The following sections, to the 67th inclusive, are taken up with the subject of these modes of redemption.' I shall not comment upon them ; in detail, because it is not to mere details that I j have to object, but to the entire principle upon I which they all rest. It is enough to say, that no timers fixed within which the redemption must i lake ])lace ; that every rensitairc is free to com- j mute when he pleases"; or nr^t at all, if he does ; not please. Till ho shall please to commute, the I schedule remains a dead letter, so far as he is ; concerneil. lie- remains a cenvlaim, freed from half ; his obligations, or more, a.s the case may be, — but I m name a censitaire ; and the obnoxious tenure : of his land sulisists. When he wants to change i it, he is to go, not to me, but to the Ileceiver ' General of the Province, or such oihcer as the ; Koceiver General shall name to that end ; aiid is : either to jiay him tl.e redomptioa money, or simply declare to nim his desire to commute, — : in which latter case, the redemption money be- ; comes a constituted rent (rente cons.'ituee) or re- ileeniabie charge upon the land bearing interest till red.'cmod. Such consiiUitcd rent, again, whenever i reileenied, is so to bj by payment to tiie Kecciver : General. And. ait monies so paid, whenever paid, are to find tlier way to me, by a process I not the (iuickost in the world, calculated in some l^.ea>^ure to protect my creditors, who are not to ' hehn'l quite so hadly'olt'as 1. lt\ tiiree months af- ; ter any payment, 1 can give the licceiver General I a certificate from ti:e Clerk of the Superior Court i jor my Dii-trict, ihal he has no opposition in his hands on the part of any of my creditors, I can ! get the amount with the interest on it, paid over to myself, h' not— the more probabh; case, by the way with most SGigniors, — my money is to I lie -vvitii th- itccoiver G'oni.ral for three years, or tjjl it amount to >J50i), as the case may be, and is thou to be paid into Court, with interest, i for my creditors and my.-.e!f to fight over, in we be.it may. And this is a valuing and redeerning of my rights. Not hy airreement between my debtors (individually or collectively) and m/seii"; nor by liio matter of course proce.sf- of an arbitration be"- tweeii us, if we should not agree. A man named by neither of ns; is in all sorts of indirect ways to undervalue, by a slow, costly, uncci tain process; and then he is to cut down his undervaluing ; nei- ther oi us — not even he — can correct anv c^rror or injustice ho may commit. i\nd when all is done, I am not to have my mockery of a cash price, 111 cash, nor even in one sura at anv time ; -as, were it valued ever so fairly, my right would be to have It. It is to be paid in'dnbblets, no one knows where, just as any one but myself may choose. True, it is provided by the fiftv second section just read, th.it as each dribblet shall be paid (or promised as the case shall be) there is to he added to its amount, what is o.ldly called " interest '' calculated at the rate of one per ])er cent, per annum on the prico at which the casual rlHi!.'? " may be redeemed, from the day of the dafe of " the deposit of the said Schedule." But why " one per cent 1 Why such one per cent, on part only of the price ] Above all, why only on that part which represents my casual rights ■? " In- 64 terest" it clearly is not ; and is not meant to be. It can be taken only as a sort of recognition of the certain fact, that as years pass on, the value of money certainly will be falling, and the value of my Seigniorial rights rising. But who will say how fast either process is to go on 1 Most per- sons believe money is on the eve of a rapid and long continued fall in value. Will a rise of one per cent per annum protect me even against that 1 If it will, it sUll ought to be taken, not upon a a part, but upon the whole of the so-called money value fixed for the redemption of my rights. But apart from all fall in the value of money, it is to be remembered that the value of all property is rising ; lands beceming more extensively cleared and better cultivated, — siiles more frequent, — crops to be "ound at the Seigniory mills, larger. My revenues from banality and lods et ventes must be held to be increasing revenues. In many Seigniories, they are fast increasing revenues. What is now their money value, 1 could afford to take now. But ifl am to be paid twenty years hence, 1 must have what their value will be then. Adding one per cent, per annum, merely, to an undervaluing of my lods et ventes alone, is a mockery ; another mockery added to the many that this Bill offers me. And not one payment ever is to be to myself. When my land was to be taken from me, my creditors were hot remembered. Against any person wanting it below its value, they are to have no rights, any more than I. But when mo- ney is to come to me, they are remembered. Against me, they are not to lose their rights. I do not ask that they should. Protect them by all means. But protect me too. It is my right — and theirs too — that my property be not dealt with after this fashir- What other class of men was it ever proposed so to treat ? Ask the mer- chant or professional man, how he v/ould like to have his books handed over to a stranger, all his accounts squared without appeal, and all his deb- tors told to settle when they pleased, with a public functionary, who should then hand over the proceeds to his creditors. Bankruptcy ! No Bankrupt law that ever was, ever dealt so hard- ly with its victims. Protect my creditors, I re- peat ; by all means. But at least do not ruir me. If my rights are to be taken, take them ; bu* se- cure to my creditors and myself their honest va- lue. To do this, that value must be settled fair- ly, and laid before us in one sum ; not every sep- arate six and eight pence, five pounds, ten pounds, twenty pounds, of an understated value, paid in at all sorts of intervals, just as a thousand people may chance to choose. There is no way but one, in which to take private |)roperty for the public good. The remaining Sections of this part of the Bill, from the Fifty-eighth to the Seventy-second in- clusive, are clauses which contemplate the con- tingency of two thirds of the censitaires of a seig- niory desiring to commute upon the terms set forth by the schedule ; and which enable them in that case to effect the conversion of all Seigni- nriol niino ttiAroln inf/A n/.noti f iif/i/l vtirifo Qi-»fJ Air- ther, if they shall so please, to act together as a corporation for the redemption of such constitu- ted rents. Upon these clauses I have no other remark to make, than that I regret not to find in the Bill a far more complete dt velopement of the principle upon which they rest ; as it is to that principle one must look (if 'ye are to look at all) for any real commutation of the tenure upon the voluntary principle. They create no machinery by which the Seignior on the-one hand, and his censitaires as a corporate body on the other, can agree on terms of commutation, or failing to agree can set- tle any difference by the re^dy means of arbitra- tion. There could be no material difliculty in arranging the details of such a system, in a way to work neither inconvenience nor wrong. But these clauses as they stand, do not do this ; and failing in this respect, they can hardly be said to be of any practical importance as part of the Bill. The despotic machinery for cutting down the value of my rights, remains^ And it is not even likely that these clauses (limited as their scope is) will ever be thought worth acting on ; so as to lessen the additional injury to be done me by the piecemeal mode of settling for them as so cut down, which is established as the rule of procedure under this Bill. I have done, then, with this portion of the Bill, and pass to the next or sixth part, extending from the seventy-third to the eighty-fifth sections inclusive ; and which treats of the jiroposed in- demnity to Seigniors. The recital of the seventy-third section com- mences thus : — " LXXIII. — And whereas some of the powers " formerly vested in the Governor and Intendant " of New France, under the laws promulgated by " the Kings of France, for the purpose of res- " training all undue pretentions on the pari, of " Seigniorsi have not been exercised since the " said cession of }he country ; and whereas dif- " ferences ofopinioii have existed in Lower Ca- " nada, and conllicling decisions have been pro- " nounced by the tribunals established since that " time in reference to the character and extent of " various Seigniorial rights ;" An unfair recital. If powers adverse to Sei- gniors have remained unexercised since the cession to what has it been owing, but to the fact that the law of the land has not provided for, or allowed their exercise t And have no other powers, far more vexatious, adverse to censilaires, remained unexercised 1 Are they alluded to 1 Or proposal made for their revival 1 And " conflicting deci- sions" of the tribunals of Lower Canada 1 As to what points ; in what causes ; when "? I will not here undertake to say, that there have been none. But I do say, that I lever heard any cited, or their existence asserted by any one. Why, as I have said, ti.j notorious complaint has been, that the Courts of Lower Canada have decided always for the Seignior. " Differences of opinion" I well know there have been ; a difference of opinion between a large class of persons not judges on the one hand, and the tribunals on the other. But for the Courts! If anything in this world can be certain, it is that this large clase of whom I speak, have for years steadily assailed them for the uniformly Seigniorial tenor of their decisions. II aiiyuiinjj c.tii uc new il is nils aoBCiUvu lual. their decisions, the meanwhile, have been conflict- ing. But I proceed with this recital : — " And whereas while it is the duty of the •' Legislature to restore to persons continu"> 65 " iii„' to hold lands en rofure, (In so far as " present ciiciimstanres will permit,) the rights " and immunities secured to them by law as inter- im preted and administered at the last mentioned ^'' period, ii is at the same time just that Seigniors " who have enjoyed lucrative privileges, of which '• they will in future be deprived by this Art, '■ notwithstanding the enjoyment of such pri- j| vileges may have been sanctioned by the ^1 said tribunals since they ceased to exercise " the aforesaid powers, shoukl be iudemnihed for I" the losses they will suffer from the manner i;i I'whicli the rights to be hereafter exercised by '^' .Seigniors are dellned by this Act, Be it there- '' fore enacted,— That it shall be lawful for any '' Seignior to lay before the said Commissioners, " a statement in detail of the amount of loss sus- " tained or thereafter to be sustained by him, by '■ reason of his haying been curtailed, limited or '" restrained by this Act, in the exercise of any I' lucrative privilege, or in the receipt of any ■' rents or prolits which as such Seignior he would ■■ have been entitled to exercise or receive before '' the passing of this Act." When the Seignior's land is wanted by any person, we have seen how, summarily and with- oui appeal, one Judge is to take it from him. — AVhen his conti'aet with his cen^iluirc is to be en- forced, we have iocn how formally and deliberate- ly and sunjoct.to appeal, a Court of three .Judges is not to enlbrcc it. When his rights are to be lirst uiidarvalued, and then cut down below such un- dorvaliKiig, we have seen how, again summarily and without ajjpoal, one CommissToner is to do all that that c.ise ro(juircs. We have now to see how, ai;er loss suilored by the Seignior I'rom these pro- cesses, loss amounting (it well may be) to ruin, he is to proceed, hopefully if he can, formally and subject to appeal at all events, with his afler prayer far some measure of Indemnity for his loss. ^ lie is to begin, by laying before the three Commissionei's — not before one — his precise '' slatement in detail of the amount of loss sustain- 'I cd or thereafter to be sustained by him, by reason " ol his having been curtailed, limited or restrain- " ed by this Act, in the exercise of any lucrative ■' privilege, or in the receipt of any rents or pro- " litsvvJiich as such Seignior he would have been entitled to exercise or receive before the passing " of this Act." All 1 can say, is, that aii}' Sei- gnior who shall sit down to make his statement for himself, will iind it pretty hard ; and any one who shall get it done for Lim, will iind it pretty costly. A slatement in detail, of all his losses by ihis Bill ? \v'hy, the best lawyer, and the best ac- countant and man of figures, ia the country, toge- ther, could not draw it as it had need be drawn. — And all would depend on a detail of facts, which if denied, no man could prove. It would be the pro- cedure the most difficult and sureto fail, that could be ; worse, if possible, than 'he suing of five hun- dred censitaircs together, for failure to keep hearth and liome on land, by reserving it for cutting fire- wood. Well ; by the following Sections it is set forth, that my "statement or petition," when ready, is to be fyled "in duplicate" with theCommissioners; who, after handing the duplicate of it to the Secre- tary of the Province, are to meet and take the matter into consideration, first giving notice by advertisement, of the when and where". Whenever the interests of the Crown may require it, the Attorney General or other Coun^el duly authoriz- ed, IS to represent Her Majesty, and oppose the praye: of the petition. And, as the interest of the Crown will re(|uire this in all cases. — ihe indem- nity comingoutof a public fund, — it will of course always be the duty of the Attorney General or his c.^puty, to oppose and sift the statements (of law and fuel) of every petitioner. The Commissioners — not necessarily profession- al men— -are to sit ns Judges ; and, after hearing the petitioner "in person or by attorney," and the Crown by the Attorney General or otherwise, are to render their judgment in writing. And by the Seventy eighth Section, it is specially provided that "every such judgment shall contain the grounds thereof," No easy matter. Pet :)■>:: a detail ; judgment in detail ; reasons in detail. Th - Commissioners may find tl ,r job as hard as .he Seignior wdll have previoii .y Ibund his. It is t^is Seignior's remedy that is in (juestion. Delay aad difficulty are no matter. Certainly not. By the Seventy ninth S.^ction, ho is t' have the right of appeal— as also is the Crown— loathe Queen's Bench ; and thence, to the Privy Council, whenever (as must commonly be the case) the demand shall amount to £500 Sterling. — Such appeal, upon suchmaiter, maybe slovy and costly. Still no matter. The next clause, the Eightieth, carries us one step further ; and had need be real carefully, for Its tenor to be seized, or credited :— ' LXXX. The said Commissioners, and the Courts which sliall hear any such jietitiou in ap- peal, shall reject every deni'.nd for indemnity b.tsed on the privilege granted by this Act, 'o persons possessing 'aiids ai roture' to free them from that tenure by the redcmjition of the dues with which they are charged, and shall establish the amount of infJenviilij due to the petitioner, only upo;i the dijfetynce existing between the manner imchich ihe ri^hls hereafter to be exercised by the Seignior are dejlacd by Ihis Art, and that b'j which the rights they exercised before the passing of this Act would have br.cn intcrjn-cted if this Act had not been pass- ed." The question is not then to be, how much the petitioner has lost. No loss to result from the piece-meal and round-about way 'n which his rights are to be (as the phrase is) redeemed,— -nu loss from any under-valuing or cutting dovvn of them, in the redemption schedules, — no loss, even, from any quantity ol sheer mistake that a Com- missioner may have made in such .Schedules,— is not to count. The measure of his loss is to be the difference between two unknown quantities, — between "the manner in which his rights hereaf- ter to be exercised are defined by this Bill, and that in which his rights as now exercise(' would have been interpreted but for this Bill." Ascertain- ed, such difference would not comp«nsate hirn. But how ascertain it 1 How state it in his peti- tion ? liovv prove it before the Commissioners'' How get it written, and the grounds of it set fortli in their judgment ? How attack or defend it in appeal ? This Bill purports to call it doubtful , how his rights as now exercised should or would be interpreted at law. Suppose the Commissioners to hold the recitals of this Bill ; to define these rights 66 as now exercised, so as on legal ijroiiiuls lo aive him nothing, let him prove as matter of (act vvhat he may. If they will, they can. And the Crown is to be by, — party to the suit, to require them (so lar as may be) so to do. The Eiijhty first Section takes the next step, thus : — " LXXXf. Every judge who shall have present- " ed a peiitwn for imdemniiy iu his own behalf, " in virtue of this Act, shall be liable lo recus- " ation in every case in appeal from thejuigment " rendered by the said Commissions upon any such " petition ; and every judge who shall have sat in " appeal from any one of such judgments, shall be "deemed to have renounced all right to present " any such petition in his own beha'if. Was ever law heard of, or proposed, that a landlord judge might not sit in a cause between landlord atnl tenant; or a proprietor jifJge, in a case egaiiisi a squatler ; or a ju'Jge that had taken or ijiven or endorsed a promissory note, in a caie involving promissory note law ? By this Bill, the cenntaire, Judge of any Court, is to take away (he Seignior's land ; the cendhtire Commissioner, Judge of no C')uit at all, is to cut down the .^^eigm'- or's iiconi(> payable to " the Crown in all tin' Seijjiiiories "f winch th<> " crown is the Seignior domincnt, us well as all " arrears of such dues. •' 2iid.— Tho UevBnue of the Seigniory of Lau- " zon and the proceeds of the sale of any part of '■ tiic said Seii^niory that may be hereafter made. *' 3rd. — AH monies arising from auction duties •' a;!-l auctioneer's licenses in Lower Canada. 1 have, then, at last got something awarded. Appjal or no appeal — at whatever cost, and after whatever delaj' — the award is iliial. No creditor, even, contests my right to take it. But the credit of the Province is not pledged that I shall have it. It is " not" to come — so reads the Bill — it is not to comj out of tho Consolid..ted Fund. If tho t^pecial Fiuul here designated, suffice to pay it, after j)aying all Commissioners' salaries and schedule-making and other disbursements whatso- ever, — no small sum, — 1 am to be paid. If not, I am not to be paid. In the best case supposable, my award is not to covor all my loss; 1 am to get it in no iinri'y ; and no clause gives me a hopo ofgelting, along with it, any award of eo.sls on my petition, or o any unsuccessful contestation of it, or on any appeal or appeals, that I may have suffered from. h\ the worst case, [ have lost the whole ; money, time, costs, together. As to thesufl'iciency of the proposed Fund, one is bounil to presume that it is intended to be am- l)le. But if ao, vviiy not atouco give toe guaran- tee of the Consolidated Fund '? As that is not lo be done, one must feel an uncomfortable misgiv- ing that when the Commissioners are jiaid. and all the rest of the expenses are paid, there may not be enough to discharge the awards of indemnify ; that is to say, indeed, unless — as well enougli may be the case — tliere be next to • nio nnule, at ail. — Tlie designated sources of revenue ari-, besides, not remarkable I'er productivei'css and security. Rci'cf is never exacted !)y the Crown ; and it is hard to say why it is named hero as a source of le- venue, Quint can accrue no more, after thi'j Bill sliould have become law ; for no man can bo fool enougli unde"" such a law to buy a Seigniory. The .Seigniory of f^a{izoii is a jnojiiaty yielding but a very moderate revenue. And auction du- ties and auctioneers' licenses in Lower Canada, yield no large sum ; to say nothing of questions that may arise, as to the lUTnianeut niaiiitcnaucu of that form ot lax, alits iiresent rale of jfroduc- tiveness. Tho last pari of tho Bill remains; the conciud- iny; Sections, ht-aded as Interpretation clauses. Thi! first of these- Ihe Fighty-sixih o{ the Bill — is tills : — " LXXXVl. And, for the iutprprotation of this " Act— Be it enacted, That nothing in this Act '• contained shall extend or apply to any Seiu- " niory held ot the Ciowii, nor lo any Seigniory "oflli(>l.iU« Order of Jtsiiils, nor to any Seig- " niory held by the Kcclesiastics of the Seminary " of St. Sulpice, nor to either of Iho Fiels Naza- "r'la, Saint Auauslin and Saint Jo.seph, in the " Cilvand County of Montreal, nor to any ol ton " liiiids held en roture in any of Uie said Fiefs and " Seigniories." Against so much of this clause as relates to th« Seigniories of the Seipinary of Monlreul, tuid Itia Fiefs Nnzare'h, St. Augiistin and St. Joseph, I have not a word to sny. J hey are regulated by exfiresB N'stislalive enactmimt ; and (as I have al- ready said") it is well that nt least that one enact- ment should be respected. It is iegj)ected, pre- cisely as the whole body of law by which the 67 ■ » I Kr7 '/ f", '"^ '"'^"^^ '■« assured to them, ou'• •!'« F"^'''li oiovvn. lheijranlor,and the tertnsof the 'rnnts are to import nothinij. l., this at least, thc^ "l s pr etor; or shall be so treated. Our property- the pro;,e.ty ot every one of ns-is to be denied to h"elp'' ku cannot ^T' '' ^'P^'^' ^^^» ^ <=°"i ^ neip, iiut 1 cannot, before cone udin"-, avoid qsk. ingonce aj;ain, after this -eview of h. T I this Bill, whether LegislatL'oT the 1 in Hh''',"^ proposeu can be heldlo be iii a y s nt "'j, jS a restoration of any old law ^vhich ever at w w[T "^r ''^''^'''"^ Seigniorial proLrty^ past, 111 the enact.neni ot a new law, containing such provisions as this Bill couta ns whethef any such project of law ought to be elia^ted or ndeed can so much as be discussed, as behrl liC- y to become law,_unless with the most d saa. trous consequences. It cannot be. that such Weri?rfi°"^H'^' ^'" last project "ot its ' kin^'' v\ ere it passed to-morrow —as it cannot be —its effect would only be to maintain in morbid exs- ence the very Tenure which it pnrpor?i to inte u to sweep away. It would have decla.^ d mS and impliec more; would have unsetS ^yl thing ; established 'noti Hiig. The legislative word 'Ja , ourcoiitiacis are to avail against us, but not for us ; our whole civil status is to be"c'han^m''- we are t„ b. dealt with, just as it suits the in.^SsIs dl 1 whh'n ''"^•''•'"'' '■'"!'V"' 'he community to Oeal with us mocked with the olferof.i future Indemnity, that shall be no in.lemnity,_which however it may keep its present word'of p om se to he ear, shall break it her.afler to the hope _'i.i„!^ MiUo — as 1 have observed aireadv that "re oVto^f^"''''^^^^""'^ ''-'''' '''-'^^^^ tJl^ '""'' '' "^".""'y ^""«' I have not willingly take., up so much oftho time ofth.s IlonorSo wouhlha. ,,,, ,^ be sure to be told, that what this Bil may leave us IS no more ours, than v hat it should have aken from us. We must defend ourselves, as wcK J^anist the proposal of this measure as against those hat must come after it. We must "se forth- hee,eve.-y where-tho whole strength o^^ our case. \V^e must declare,-for w. are ruined oth- erwise^however uiuyillingly, however ?S^mV ovetms our country, however anxious we may bo o maintain her character an.l credit, we mZ declare .-and so declared, what we ay must every wh..re instinctively bo felt to be t me -^hat measure, such as w-e are threatened with art measures, ot a kind to destroy all 'rrist iri Hnl st.lutions.orin the character of ou peo ,/ ' We rnay save ourselves ; or We may be ruined. S wf cannot be ruined alone. The agi at n that sliall have beggared us. will have denn.ral, ed tSs ;;o..ntry, a.ul destroyed all publu- faith i. its i„st ! t. ions. I'ubl.cconhdence is of slow growth. V\ e have seen how slowly, as regards this country. I'as grown to be what it is-^fo giv.- promise of he ruit, which ,t does at this day promise to the ately reviving hopes of „m- commftuty. Js U so tha, we are to see those hopes fuil,--t£ ta'ecut down to Its roots, its re-growth doubt ful'-atbci o be hut alter long delay, yet more slowly, S Ic^ss promise to others than now to ourselves i N.thnig by ,.ny possibility to beKuined-and there >s in lact nothing whateveV that by this meS •now'i.Tl '" 7 r"""''' '^»'"P«"««<« ior .suohToss i hink i IthU s"' '"""yf«;,'P'« i«norantof ,hef^cti ■a lit, 1 T'"'''*'>'"''«- ^'«hw at they ut abuses and extortions, as of a something so TnT T ""u "I'Pressive. as to make it haulJy any mat er what means may be taken loget ruiot .. nitn a v.,gue im()re8Sion of the horrors ihaUccomrjanied the destruction of the Seigniorial system in France, and ascribifrg them (as'js oAen wh,;? r ""7""' '^f'y' '•^»"""'«^" «"d ' know no tla, ty whut-ver means— one need not care how— ho country populntion must be freed from its bur then. ; or. beto.e U.ug, the whole fVibric of Society « I be broken up. No mistake can be ^reateV^ Iho Seigniorial ten-re as it existed in France in 178», wus u system, to which nothing c«„ be 68 iTiore unlike, than that which now subsists under the same name here. The two have hardly a feature in common. There, indeed, there was ex- tortion ; an extortion dating back through long ages of oppression and wrong of every kind, to fhe conquest of one race by another ; extortion, sometimes indeed more or less veiling itself under the fo.' n of contract, but oftener subsisting as mere custom, the custom of a conquering tyranny ; extortion, that under every variety of form, by exactions the most multiplied and oppressive, — the very names of most of which have long since lost meaning, save to the antiquary — ground down and kept in abject want and prostration the whole rural population of the land. It was swept a- way utterly, in a moment of madness, and with every accompaniment of crime luid horror. It was not swept away, without violation of con- tracts and rights of pr'^perty. But. may it not at least be suggested, that the sweeping away of that system, all bad as the system was, has per- haps not yielded all the fruits that were hoped for, by those who then did the wrong, of abolishing it otherwise than with a due regard fo ri«lit. They sowed the wind. Did they not — do they not — reap the whirlwind ? Who will say, that the French nation, so far, has cause to congratulate itself on the lesults of its fearful experiment of so- cial and political destruction ] But to all that state of things, I repeat, there is hero nothing that can be compared. Here, everything apper- taining fo the system is matter of contract and law. What in France was mainly , rion, has here been fact. The obligations that subsist, are obli- gations resulting from lioim fide grants of lard ; obligations, partly of free contract, partly super- added by public lav upon the bisis nf tmh con- tract, besides, there the rural poi)ulalioa h."d for ages been kept in a state of poveriy and wrong, not much more humanizing in its inlluences than a state of slavery would have been, ar.d may be said to have first woke to political existence, at the very moment when it seized on all the powers of the State. Here, we have a rural population, as easy in its circumstances, as respectable for every moral quality, as respectful of law and properly, as any on the lace of the globe. To liken our population tothat of France in 1789, is a mistake as great as a man well can make ; and one as well calculated, by the way, as anything can be, fo destroy our character. 'J'he matter in dispute here, what is it ? A f.'ieslion whe- ther lands shall continue to pay a pen- ny, two pence, two pence half penny — pos- sibly a shilling — an arpi'iit, of yearly reiil. 'J'he system, unless as carrying w''' it /iW.h d vcnlrs, is not one of hardship. Tli, uurthcns it imposes, are not heavily fell by those on whom llicy fall. That, upon public grounds, it were well to put an ptid to it, I do not question. But it v ere betlei it remained forever, than that it should bo put an end to unjustly, — at the co.st of the character of the country. I say no word against the commuta- tion of the Tenure. I desire it. My clients de- sire it. It can be effected, without involving them in loss. It ought, if done at all, to bo so done. It must he so done. — Tlicy are not guilty trustees to be punished ; but proprietors to be protected. They have the right to require that their jiro- pcrty be protected. They have the right to except, they do most respectfully but firmly except, to the competency of this Legislature — of any Leu:isla- ture — to destroy their vested rights, to give away what is theirs to others. The great Judge, whose name perhaps more than that of any other is of the history of our Common Public Law, long ago laid down the maxim, as apjiearing from the books, that " in many cases the common law will " control Acts of I'ariiament, and sometimes ad- " Judge them to he void : For when an Act of " Parliament isagaint Common iiiglitand lleason " or repugnant or impossible to be iierlbrmcd, " the Common Law will control it, and adjudge " such Act fo be void." The tradition of that maxim of that great man has never been lost ; but remains yet, a maxim of the Common I'ublio Law, by the side even of that other fraditi(ni whicli holds that Parliament — the Imperial Pailia- ment — is onniiiiolent, may do what it wii!. And most surely it is not too much for me fo say, that this Parliament — a Parliament not Imperial — has not, at Common Law, the right to break contracts, to take from one man what is his, 1o give it to another. I\ly clients a.-k — Iherensk for them — no ) re- lerence or inivilcge over any class of our coun- frynien. They have no wish to go back to- wards that j)ast, wherein they were judged by one tribunal, and their censUaircs by anotlier ; their positioi, then the favorable one. But they do ask, that they be not carried .ii!o a fiifun'. wherein they shall be judged by one liibuiial ti' their luin, iuid their ccnsilitirfshY another to their own gain. They il-> ask — ask of riiiht — that n|()ii the blalute Book of this Piovince, as fouchinu them and flieirs, that only be declared which is true, that only enacteil 'which is right. And ideadiiig here thistheir cause, bcforetliis lliiiioi- able Mouse, tlie Commons House ofPailiament of this lirilisli country of Canada, — appealing to this country here represented, — recalling, too, the as- suraiu"<' bill l.itely given as to ibis very mailei from the Throne, and the answering pledge of the country, signified through both Houses oi its Par- liament,— I have too firm faith in the absolute omnipdlence. bere and now, of the true and right, to be able fofeel a fear as to the final judgiiieiit which the country xnd the Crown ehull pass upoii it. I '*'[