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SOME REMARKS

17F0K TH.K

'1'

FRENCH TENURE

"FRANC A LEU ROTURIER,"

I »

i !

AND ON rrs RELATION TO TUB

FEUDAL AND OTHER TENURES.

BY ROBERT ABRAHAM.

MONTREAL :
AR-MOUri AND KAMSAY^.

1849.

SOME REMARKS. &c.

• i

The Bill introduced into the Lower House by the learned Solicitor Gen-
oral East, for removing doubts as to the legal oftect of tlie Act of the
Legislature of Lower Canada, passed in the ninth year of the Reign of His
late Majesty, King George the Fourth, and intituled '• An Act/or rendering
valid co7iveyances of lands and other immoveable property heldin free and
common soccage within the Province of Loioer Canada, and for other pur-
poses therein mentioned, and for the greater uniformity of the Law relative
to real property in Lower Canada", is one of great importance to a
large section of the inhabitants of Lower Canada. It is little likely to be
understood by persons not in the way of studying such documents, and
who, on the one hand, are unacquainted with the English, and on the other,
with the French tenures. I may, perhaps, do some service, now that
the attention of the public press is particularly devoted to objects of a
more exciting nature, if I endeavour to make its operation intelligible to
those concerned. In all ages, the mode in which a people has held its lands
has been the most powerful agent in determining its character and for-
tunes.

It is not at all surprising that many people should suppose that a
complicated and obscure French term implies some portion of that seig -
norial tenure which the French established universally in the Province.
But Franc Aleu is as much opposed to feudality as freehold is to copy-
hold or villenage.

" Aleu" is the same word as " allod." Of three of the Scandinavian
branches of the great Teutonic family, who, more tiian a thousand years
ago, conquered the west of Europe, it was the univei'sal and original
tenure of land, as it is now in Norway ; and most likely was that of the
other great northern hordes, particularly the Franks. It is popularly
described in England as a man holding freely, as his own, all from the
sky above to the centre of the earth ; and I shall soon show that the
definitions of the best French lawyers, daily quoted in the Courts, are
consentaneous with this.

The Danes called the tenure vdal, the Saxons allod, the Normans
aleu ; and all latinised it into allodium. The etymology of the first is clear
and undisputed. It is from the verb deylen, to divide ; and meant sim])ly
the lands assigned to a conquering soldier. In modern English, •' dale"
has been converted into a valley {Note) because the first divisions of lands
were generally in the valleys, the mountainous or less fertile tracts being
left common property for pasture. But the original signification still
remains in " to deal" as distributing benefits, injuries, or favours ; and,

>\U

more popularly in a " deal" at cards,
thing. m<-'aJiing a large projiortion.

We say " a great deal" of any-

Respecting the etymology of '' allod" antiquaries are more divided.
Some derive it from " allot ;" the disposition by lot of lands among a
conquering tribe, where each soldier took his share of plunder by the same
title as his chief, as marauding tribes have always done, and in many
parts of the world(do now (Note). Others derive it from the Teutonic lode
or lodh, whence our verb " to lead ;" and as miners still call a continuous
mineral vein through the rocks, " a lode.*' This implied that the allodial
land went in the direct line of descent undisturbed by the caprices of a
superior ; which was not the case in the early ages of the feudal system,
when the lords often interfered with the course of inheritance, and dis-
posed of fiefs, on the death of the feudatory, at pleasure. When manly
vigour and the sword were the only real securities for property, it was
long unsettled and often bitterly contested, as it is still among many
eastern nations, whether an adult uncle succeeded in preference to a
female or to a minor nephew. M. de Ferriere, in treating of allod
defines it " the right of succession," "inheritance," — " le bien de succes-
sion, I'h6r6dit6." It is our English Freehold of Inheritance, (Note)
differing only from that and what is here called Free and Common Soc-
eage in the limitations of the inheritance.

It is not much to the credit of English lawyers, that while, misled by
their extreme feudal theories, they were denying, or at least doubting, the
existence of an allod in England, in defiance of the genius of a nation,
those of France, under a line of despots, were rigidly and carefully
defining it. The author, just cited, gives it the utmost latitude of inter-
pretation. It is " liberty, immunity, and freedom ;" an allodial inheri-
tance is ** one that has no seignorial rights, and, in that, differs from
all fiefs and censivcs." His definition of franc-aleu is equally large and
full. " It is an inheritance entirely free, which depends on no lord, and
owes neither duo nor rent" — '^droits ni rentes.'''* I need not enter into what
these writers say as to the militaiy and judicial obedience due from the
holders of allods, as those are merely municipal, and have no relation to
the system established in Canada by monarchs who engrossed in their
own hands all military and judicial authority.

This mode of holding lands, the best and freest that could be
conceived, was peculiar to the Teutonic, as distinguished from the Celtic
tribes, {Note) who, between them, at the period from which our present
institutions date their first recorded origin, occupied the whole west of
Europe. The Gael, Breton, and Erse races,seem scarcely to have
recognised independent individual possession of land, the leading charac-
ter of the social policy of their conquerors and oppressors anterior to
feudalism. Their notions were rather patriarchal and communist. The
chief of a clan held a tract of land, and his tribe held it subject to him,
with rights, equivocal and precarious, but still recognised ; very much as
the North American Indians do at the present day, and from the same
causes. Cultivation was more a matter of convenience than of local right.
It was permissive ; but the permission and the duty were reciprocal obli-
gations {Note). It was reckoned a great injustice that the Anglo Norman
and Saxon conquerors of Ireland subverted the ancient jurisprmleuce of
the inhabitants and seized their lands in fief or allod as suited their con-

lenience. At a much later period, Sisinumli and other great i)ublicist9
vigorously remonstrated against the injustice done to tlie Northern
Highlanders, particularly in Sutherland, by their lords, under decrees of
the Scottish Lowland lawyers. The courts dealt with the rights of the
Gael according to the feudal and civil law ; and the lord^, under their
authority, seized the whole estates of the clans of which they were the heads,
as their own absolute property. It was assorted, by more unprejudiced
antiquaries, and by lawyers conversant with the more ancient codes, that
the property was in the whole race ; and that, if the ancient teiuire was
succeeded by a now one, the rights of the people to a share of the fruits
of the soil should be considered in the latter. And it was maintained that
this translation of the whole fee to an individual, instead of estimating
and assessing to him his seignorial share of a tenancy in common, was a
robbery of the many for the few. It is true that a very large portion of
the inhabitants of those districts, in many tho largest, are of Teutonic
origin. But the Danes and Norwegians settled in Scotland, as tho early
Normans did in Ireland, at too rare intervals, and in numbers not enough,
to retf :n their nationality. They " degenerated," to use the harsh phrase
of Mr. Macaulay speaking of the latter ; they , assumed the language,
laws, and feelings of the natives, became the heads of the Septs, whose
ancient masters they had displaced, and were served by their new allies with
undeviating fidelity. Their foreign origin was forgotten and they became
native to the soil. The Geraldines, as Spenser long ago observed, be-
came more Irish than the Irish themselves — ipsis Hibernis Hiberniores.
On the contrary, the English and Scotch in Ulster, and the Saxons and
Danes, in Britain south of the Grampians and eaol, of the mountains
of Wales and Cornwall, settled in masses ; exterminated or expelled the
inhabitants ; and, in new lands, implanted their own ancient languages,
laws, and customs. The Norman conquest of Britain was perhaps a
medium between the two. The invaders were sufficiently powerful, for
several generations, to be a distinct people. But when wars of succession
closed the access of recruits from the continent, as Mr. Macaulay also
observes, they speedily became English in si)irit and name. To compare
small things with great, we observe similar instances all over this con-
tinent. Where the Dutch, Germans and French have settled thinlv,
south of our frontier, they become Anglicised ; where in numbers, they
retain their nationalities. In Canada the descendants of Wolfe's soldiers,
who settled below, are neither diflPerent in language, manners, or feelings
from the habitants, though sometimes a little distinct in personal and physi-
cal character ; but the more numerous and intelligent bodies of British,
who located themselves in this section of tho Province, retain unchanged
with their language, their character, their spirit, and the love of their own
laws.

The successive governments of Canada have, with questionable
polity, but with very excellent faith, kept a preserve of about forty
thousand acres of the best land in the Province, within sight of Montreal,
nt Caughnawaga, on tl)o right baji^ of tho St. Lawrence, at the head
of the Lachinc itapids, for a few hundred reputed descendants of the In-

(■-'i

ill:

■I

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1' 1

«liuii race. Ai tliu pivsunt tiiu*^ ;i very small slinn', (•crtaiiii)' iK»t a
moiuty. "f their bitiod. is that oi' tlu' original r«'d man. Then' is a portion
of th<Mn who, from thdr external asjteet would he ropnted jnne Eu-
ropeans, larger than that which, hy the same test, vvoukl be ealled pure In-
dian. But still, the sueeessive inerements, consisting considerably of
Dutch and B^iti^^h capti\ea carried oil' in youth in the border wars, have
assumed all the moral charaeteristies of the race into which th(;y were
adopted, along with its language. They are still the same skilful pilots
and bold oarsmen ; with the same implicit faith in their political and
sj)iritual guides ; they have the same ignorance or dislike of civilized us-
ages, of horticulture and of agricultin-e ; the same constitutional infirmity
of resisting the influence of spirituous liquors : the same incapacity to deal
on equal terms with their cunning and rapacious neighbours, from the
consequences of which the law protect?, them by complete isolation and
by vacation of contracts. Their fine domain is a wilderness, in which the
women, here and there, cultivate small patches of land, in a rude n)anner ;
and they live in a village, without a notion of forming regular farms, though,
by dividing and tilling their domain, they might become opulent proprie-
tors.

The contest of races and of Laws is not peculiar to Canada. It
is a portion, and the most important portion, of the history of every
people in son)e stage or other of its existence. The amalgamation of
different stocks is sometimes successful, as in Britain and France ; more
often unsuccessful as in Spain, in Holland and Belgium, in the Baltic
provinces of Prussia and Russia, and unhappily in Ireland. M. Thierry,
in his history of the conquest of England by the Normans, has observed
that the first person clearly to comprehend and to point ^ut the social
natur«3 of the struggle between the intrusive race and the Saxons, long
after open warfare liad ceased, was a Novelist, — referring to Sir Walter
Scott's Ivanhoe. The same great writer of those romances which dta-
body so much of the philosophy of history, in his novel of the Pirate,
has equally happily drawn the resistance of the Udallers of the Northern
Isles to the intrusive policy of the Scottish lords and government, the
conflict of Runic and of Gaelic customs and habits. That bears no in-
considerable resemblance to the strife between the Jurisprudences of the
French anl English in Lower Canada. And the complaints of the peo-
ple of Sutherland find their type in those of the Canadians of the
Canada Tenures Act. They have complained, and I have always thought
justly, that, while the Seigneurs are allowed easily to convert the fiefs in-
to what most nearly approaches to the English freehold in demesne, the
people are robbed of the right, as clearly defined and as ancient as theirs
— to settle on inclosed lands according to the cu.stom of the country ; or, at
all events, it is most reasonably contended that, if the seignior takes an
allodial title, those Avho are in the place of, and inherit the rights of the
censitaires, ought themsefves to take one )iot less, to the extent of their
interest, and subject to no increased charge. On this latter principle the
government has of late more wisely aitted in the lower part of the Pro-
vince, and above, in the Upper Province, at the; foot of the Georgian Buy.

ipffi

The coutest between the feudal and the allodial tenures has never
ceased in Europe since the former was first introduced. The traditions of
nations, though their origin be lost to memory, are more potent than the
swords of conquerors and more durable than the books of lawyers. This
contest the English waged with undying pertinacity for eight hundred
years and have now all but closed it by success. Every one knows that
in France feudal exactions were one great cause of the revolution ; and
the French never rested, until they had utterly swept them away, and
made the whole lands of the country allodial, under a different name and
code of law. Resbtance to feudality was one great cause of the revolu-
tions in different parts of Europe last year ; and many people think that,
in North Germany, and particularly in Prussia, the people have amelio-
rated their condition by their abolition, to an extent which more than
compensates for all their struggles.

To return to the French lawyers. The Couhime de Paris divides
Franc aleu into Franc aleu noble and Franc alen Roturier. The dis-
tinction between the two is, or rather was formerly, very material. It
is that the former descends like fiefs, is noble in its nature ; but, like a censive
or French copyhold, the latter is divided equally without right of seniority
{droit (Tainesse) in the heirs.

It would be useless to go into the cause of this distinction, arising
from military and other customs, never established here, and differences
of rights and classes now forgotten. It is the latter alone with which we
have at present to deal.

The Normans, it has been remarked, of all the later invaders, were
the first to adopt the Latin creed and Latin language, while the Saxons
and Danes, probably from coming into contact with a lower degree of
civilization, continued to a later period Pagans. The descendants of the
latter, to this day, use languages almost exclusively based on those of
their forefathers. The Latin furnishes most of the roots and grammar of
the languages of France, Italy and Spain ; the Teutonic of those of North
Germany, England, Holland, Denmark, Sweden and Norway. Of the
former the religion is Catholic and Roman ; of the latter National and
Protestant. (Note). Within a few generations after the cession of Nor-
mandy to Raoul by the descendant of Charlemagne, the Normans lost
their vernacular dialect, and the word aleu was forgotten as one native to
them and intelligible in its origin. They therefore prefixed to it, in their
new dialect, the word franc, signifying free. In after times, when military
feudalism was added to civil polity, to distinguish those allods which were
not noble, and military service was then exclusively the title to lay nobility,
they added to the two the word roturier, signifying servile and mechanical
—a terra, like " soccage" in England, of inferiority. But, like free and
common soccage, a tenure in England of very base, and generally of
feudal origin, the exemption from nobility brought exemption from military
fealty ; and, with it, from the intolerable burthen of wardships of minors,
profits of minority, fines on livery of lands, and exactions in lieu of military
services known in the English law as aids, or reliefs, and scutagos.
This invaluable privilege made, in process of time, both tho ono and tho

'!'

Other the envy of the feudatories, however high and noble their titles-
In England, the granting, in the times of Charles the Second, to all fiefs,
whether noble or otherwise, the privileges of the formerly despised soc-
cagcs, was solemn and statutory ; and, in France, where the abolition of
feudalism was later, more sudden, violent, sweeping,and revolutionary, the
frano aleu roturier was, at the time when those books of law which guide
French jurisprudence here were written, clearly recognised, distinctly
defined, and was the best, highest, :.nd most perfect title to the enjoyment
of land thut r-ny laws could give. None can be more clear of any seig-
norial, feudal, o/ slavish incidents. It is a freehold of the most perfect kind.
I apprehend, however, that its territorial extent in France was much
more limited than in England, where the lesser freeholders always con-
stituted one of the most powerful and opulent classes in the nation. I know
one county alone, of the second class in size, and third or fourth in popu-
lation, in which there were, before the Reform Bill, eight thousand freehold-
ers. The free yeomanry in England were always its groat military and
political strength ; while, those of France never seem to have been of much
importance in its history. And this accounts for the earliness and success
of the English struggles for liberty, and the fttilure of those of France, until
accomplished by a revolutioc and again lost politically in the struggle.

The meaning and the etymology of " soccage" and of " roturier",
very closely resemble each other respectively, and show that they must have
originated in precisely similar conditions of society.

The derivation ofthe former by Somner, adopted by Blackstone, from
" soc" liberty or immunity" -nust be given up, as purely imaginary.
There can be no doubt that it is from •* sock," a plough, or rather a plough-
share ; which, as Mr. Christian, in a note, on the commentaries, observes
truly, is in use in some parts of England to this day ; and he very happily
points out the connection of the office of the sowers and reapers of the
earth, as distinguished from its military defenders, with the incidents of
their peculiar tenure. Many of our lawyers, however, besides Blackstone,
have leaned to the opinion that it had a better descent than was generally
reputed ; that it was a remnant of Saxon liberty, not of Norman domi-
nation ; and that the origin of soccagers was as much superior to that of
the copyholders (censitaires) as was their condition in later times.

Whether it was that they did not know it, or that they took it for
granted that every body knew it, no etymology of roturier is to be found
in De Fortier or Argou, otherwise so particular in such matters. Nor
is one to be found in any of the common Dictionaries, such as Boyer's, nor
even in that of the Academy. The general definitions run " that which
not noble", " soccage." I found, however, a curious note on it, con-

firming a very obvious conjecture I had previously made, in the Dic-
tionnaire de Trevoux, of which there is a fine edition in the Library of the
Legislative Council, to which I was directed by the courtesy ofits Librarian.

" Roturier. Ce r )t vicnt de Ruptuarius, qui signifie un Laboreur
" qui rompt et cultive la terre."

" Roture. Ce mot vient de ruptura, qui dans le bas latinit^ on a dit
" pour culture de terre et I'on dit encore en plusieurs lieux, rom^e la

long

it for
found
Nor

s, nor
which
t, con-
Dic-

of the
>rarian.
iboreur

" terre, pour dire la cultivor. Burol Ic derive do rota, parce qu'on so
" servoit de paysans aux travaux peiiiblos, commo pour fairu tournor los
" roues des moulins, voiturior par dc chariots, etc."

" Eottirier. This word comos from lluptuarius (from Rumperc, to
break) which, signities a hibourer qui rompt (who breaks) or eultivates
the earth.

•* Boture. This word comes from ruptura (a rupture or breaking)
which, in the low (law ?) Latin, one uses for the cultivation of the land ;
and in many places they still speak of breaking the soil, meaning to
cultivate it. Borel derives it from rota (Latin for a wheel,) because
peasants were used for works of labour and difficulty, such as to turn the
wheels of mills, drive carriages, &c."

The last suggestion is far the most satisfactory, though coloured with
the prevailing scorn of the time for useful toil. There is no need to go
to degrading offices. A " Roturier" is simply a man who wheels, and
the cart is as necessary an implement in agriculture as is the plough.
{Note).

The different fate of the two terms is typical of that of the two
nations who respectively took the ploughshare and the wheel as the em-
blem of the productive class. In England, after the almost total destruction
of the great and ancient nobility under the later Plantagenets and the Tu-
dors, the commons succeeded to the controlling power ; and, with the de-
velopment of the liberties of the mass, useful labour was deemed no dis-
honour, and its immunities were coveted by the highest nobles, until
soccago became a term popularly taken as synonymous with freedom,
many people confounded it with " allod," and, like others of the newly en-
nobled, antiquaries framed for it a fictitious pedigree.

In France the fate of " roturier" was quite different. After the
Kings of France had, by marriage or conquest, succeeded in consolida-
ting with the throne all the great provinces from Provence to Picardy, they
set to^work, like those of Spain, and with nearly equal success, to destroy
the municipal liberties of their new subjects ; until, by the destruction or
humiliation of the ancient^aristocracy under Richelieu and Mazarine, the
throne had not left a single outwork. The monarchy was like a harbour, of
which the mole had been destroyed to make it easy of access ; consequent-
ly, until the revolution, the social condition of the people of France deteri-
orated as rapidly as that of England had improved ; and all the i)riv!lege3
of liberty and honour, such as there were, being confined to the great body
of the nobility and gentry, that which was ** not noble" became an object
of contempt and oppression. As every one knows, the most terrible reaction
that modern history records resulted. The ocean swell of a justly enraged
people swept away both the regal and the feudal tyrannies whicli had
long ceased to have the desire to balance, or the power to protect each
other. (Note).

It has thence happened, that while the popular meaning of " soccage"
greatly exceeds its legal one, that of roturier falls short of its duo. In law
it simply means the negation of nobility ; not of personal freedom or of
civil rights, or necessarily inferring c ny burthen ; for it may be allodial as
well as feudal. But, in the language of tho court and of the chateau, it

■•' i

i-,*i

J, !;

l!i

was a term of scorn, like that of clown, w^hich has degenerated in the
same manner. Our language is fruitful in such instances, and one is partic-
ularly in point. Villain and menial are now terms of reproach ; but.
according to Sir Henry Spolmr !^, they merely went to distinguish two
classes ; the former, those who served the lord at his vill or farming esta-
blishment and, the latter, those who served him in his castle, intt^a mcenia,
that is, " within the walls ;" offices, particularly the latter, which were not
considered then degrading. The apprentice was a menial in the house of
his master ; the greatest lord of the land in that of his prince. It was
the common mode of education in that day, and of showing fealty ; of
which we have vivid traces in what a popular orator recently called the
barbaric splendour of the court of our own Sovereign. But, like all the
institutions of the country of barbaric^ that is, of ancient origin, it is one
of the many anomalies important and valuable in practice. For, by bring-
ing the Sovereign alternately in close social communication with the mem-
bcis of the leading parties in the state, it necessitates inquiry and courtesy,
and precludes, alike, favouritism and suspicion of faith ; and, though the
mistress of the robes, the master of the buck-hounds, the groom of the
stole, and the lords of the bedchamber, may in name belong to an obsolete
form of society, they belong to modern politics and society in this ; that
they bring the merely political ministers into close and confidential con-
nection with the throne, in so far as they present, as its attendants and
sharers of its honours, those members of their party most likely to be ac-
ceptable to, and establish amicable relations with, the Sovereign, and add
to the dignity of the court.

Blackstone (B. 2 C. 7), following- Littleton and Coke, absolutely
denies the existence of an allodial possession in England ; but it is to be
noted that, while yielding to the feudal version of what is really a
municipal principle, — that the state is Lord Paramount of all the soil of the
realm, — the English lawyers were also establishing, and without offence
to the feudal principle, to a much greater extent than was known in any
other part of Europe, all that was valuable in the allodial tenure, under the
names of Freehold of Inheritance and Tenancy in Ancient demesne ; to
say nothing of many other tenures nearly approaching to Britton's defini-
tion, cited by Bl.ickstone, of freehold, which is not far off De Ferriere's
of franc aleu — " the possession of the soil by a freeman." And they
specially enlarged the extent of the lands of freehold in demesne by a prin-
ciple I believe peculiar to England ; — r amely, that no custom can bp crea-
ted of less age than the reign of Richard the First, about six centuries
and a half distant, in our day ; and that no title can be given by a donor
save the best ho possesses, or a portion of it, as limited either in time or
quantity. IIenco,if the Lord of the Manor (Seigneur) acquired possession
of a tenement within his seigniory, it, from that moment ceased, and
for ever, to be copyhold or customary {pensive, en roture), and could
never be granted but as portion of the demesne; and, in fac', would be, as
nearly as anything English could he, franc aleu noble; aii'i, either by
direct grant, or by legal fictions of this kind, an immense portion of the
lands of England were re-enfranchised after the first violence of the con-
quest had passed. (Note).

It may be that my comparative ignorance of French law has not
enabled me to find any principles corresponding with these, but rather
the reverse ; so that while ancient rights were preserved on ancient
principles, new enfranchisements were almost im]jracticable, and the
extrication of land from tenure en roture was almost impossible, though its
creation and the proofs of its creation were comparatively easy. But, ac-
cording to Argou, the customs of France in all these respects varied much
in different provinces, and particularly (B. 2, C. 3,) in relation to franc
aleu. In some Provinces the burthen of proving the title was not on the
tenant. " In the countries ruled by the droit ecrit (Note), all the land is
presumed to be in Jiranc aleu, if there be no title to the contrary. The
proprietor need not produce his title to show that it is allodial ; the law
of the land is his title." But in others a special title must be shown ;
for the strict feudal principle, as set up by the Norman lawyers in Eng-
land, prevailed ; that there must be or have been, as of common law, a
fseigneur to every soil ; and, that if neither an allodial title nor a feudal title
could be proved, the king entered as supreme lord. In most, as in those
ruled by the custom of Paris, the former, the ancient free Saxon and
Prankish, originally prevailed ; but, in the time of Argou, in cases where
there was not a clear and special local custom, the burthen of proof lay on
the tenant ; and, latterly, the possessors of Jranc alem roturiers were com-
pelled to lodge with the lords the specifications of their inheritances and of
the persons over whom the lords exercised judicial authority ; and paid a
tax to the icing on the confirmation of their " allodialite", whether by
enfranchisement or prescription. (See Argou in verho.) But it must be
observed that what the French called " Haute Justice," and the Scotch
" Heritable Jurisdictions," remained in France and Scotland to a much
later period than in England ; and, though feudal in origin, were judicial
in character, and both equally and abominably bad.

The same principle of enfranchisement, that is, creating no new title
but the allodial and the best, is acted on in the division of common lands
in England. This is a tenure unknown in Canada ; nor do T find any
trace of it in the Coutumes {Note), nor do I believe it is known either
in Scotland or Wales, and it is most probably of Saxon or Danish origin.
Within the limits of every manor {Note) there was more or less unen-
closed land, on which all the tenants and freeholders, and the lord for
his demesne, had a right of pasture, theoretically, of as many cattle as
were levant and couchan* on the enclosed lands ; but, in practice, to any
extent convenient. Theoretically, the fee of all this common was in the
lord ; but al) the comn oners had right over it, and he could not alienate
it or usurp any portion of it, like the Canadian seignior in the unconceded
lands. These wastes, often most valuable, could not be enclosed except
by Act of Parliament, Commissioners being appointed, who awarded each
man his right ; that is, a portion of the conmioii most convenient to him
for occupation, and of extent proportionate to the \alue of his enclosed
lands. But, no matter what was the ter .re of the tenement in right of
which suc'a award was made, all were gi-anted in freehold and tith'? free.
A glebe was soi out for the parson in lieu of tithe ; a portion, usually a

u
r

twelfth or fourteenth, to the lord in lieu of his seigniory. By this
means, within the last hundred and fifty years, more than one half of the
arable land of England has been enfranchished. Sometimes, even, the
lord took in demesne a portion of the common, in consideration of enfran-
chising the old copyholds. And in such silent and reasonable ways, with-
out troubling their heads much about theories, the people of England
founded their liberties, and are daily confirming them.

It must be atlmitted, however, that there is a dark side to the pic-
ture. The poor cottars suffered severely by the enclosure Acts. Many
of them had acquired, or thought they had acquired, petty rights, not to
be substantiated in law ; such as to graze their sheep, geese, or pigs ; to
gather nuts or fuel. The complaints of this class were loud and dee^;, and
in the last century were often preferred with violence by the demolition of
fences. (Note,) Goldsmith embodies them with much poetical feeling,
in a well known poem : —

- .; " Oh, where shall houseless poverty be known

** To tread on earth, and say this spot's my own.
|. ! *' If to some common's fenceless limits strayed

' ' " He drives his flock to pick the scanty blade,

" Those fenceless fields the sons of wealth divide,
** And even the bare worn common is denied."

Still, I believe that the division, necessary in a national point of view,
was carried out with more tenderness to the rights of the humble than
would have been felt in any other country at the time. Every cottage to
which its occupant had any title, had its garden assigned it, and its owner
elevated to the rank of a freeholder. I remember a case which occurred
when I was a boy. A poor man, to keep his family off" the parish, was
allowed to build a rude hut on the edge of a common, to enclose a
little patch of ground for a cabbage garden, and pasture on the moor
a wretched horse, with whose assistance he supported himself as a
labourer. Time wore on ; wheat went up to 80s. or OOs. the quarter ;
and the common came to be enclosed. He was told to quit ; that his
occupation was merely permissive, and that the permission had ceased.
But he knew his rights, and how to maintain tbem. And it was awarded
and affirmed by a court of law, that — as he had had possession for twenty
years, and as the lord had brought no action of ejectment against him,
nor had demanded any rent or acknowledgment, and as none of the com-
moners had asserted their right by depasturing on his garden o^* trespass-
ing in any way, — it was an adverse possession and his title was good on
the face of it ; and, that, besides his cottage and garden, he had a right to
an allotment in freehold sufficient for the maintenance of a horse.

This is the principle on which I think all " squatters'' should be
treated, but as I have stated before, I would in this Colony abridge the
title by prescription, as the French call it, or the English title by posses-
sion, to six years ; which I think amply sufficient here, where land is prac-
tically a chattel.
. The mode in which the lawyers of France and England dealt with

allods is a striking instance of the difference of the genius of the two coun-
tries, and of the influence of the predominance respectively of the Teutonic
and of the Celtic elements.

The French lawyers dealt with the question boldly, fairly, precisely,
and with obedience to power. They asserted and defined existing allods ;
but, except in the face of direct proof to the contrary, gave full force to
the doctrine that every land has a seignior. (Note).

The English lawjers dealt with cunning and with an instinctive love
of liberty. They acceded to the principle ; but, in practice, they deprived
it of its force. When the allodial tenure seemed prostrate, and its name
was lost in their books, they set it up as freehold, in all its valuable char-
acteristics, and mightier than ever.

M. Guizot (History of Civilization Lee. xiii.) says, " Whoever ob-
serves, with some degree of attention, the history of the English nation,
will be struck with a double fact ; on the one hand its steady good
sense and practicable ability ; on the other, its want of general ideas and
of elevation of thought upon theoretical questions. Whether we open an
English work on history, jurisprudence, or any other subject, we rarely
find the great and fiindamental reason of things. In every subject, and
especially in the political sciences, pure philosophical doctrines — science
properly, so called,— have prospered more on the continent than in Eng-
land ; their flighcs at least, have been bolder and more vigorous."

Leaving the " other subjects," in vhich the names of Newton, Harvey,
Faraday, Lyall, Priestley, and Davy alone, might serve to relieve the
English from the charge of want of elevation and comprehensiveness of
thought, this simply means, that in politics and law the English have
followed the inductive process of Bacon, so much lauded by the Frendi
in the other mixed sciences. They find facts, and adopt their theories to
give them force ; caring less for the extensive relations of the theory than
for its close harmony with that which exists in men's opinions and rights.
It thus happens that if their flights are less bold and vigorous than those
of the French and Germans, they are more sustained ; and that tlie insti-
tutions which they carefiilly and religiously preserved and improved, are
the model to France, Germany, and all Europe, philosophical or unphilos-
ophical. Of the one order of thought Mirabeau, De Lolme, Montes-
quieu, and Guizot, are the types ; of the other, Blackstone, Hallam,
Burke, and Macaulay. Of the two classes of minds, each great in its
way, which are, or will be, the greater authorities with the whole human
race ? One might have thought also that, as bold and masterly theorists,
even Bentham and Home Tooke might liave met with some acceptance.

The English and Scotch modes of dealing with the important ques-
tion of the transmission of land are also illustrative. The Scottish bears
about the same relation to the civil law that the French does. The civil
law place? almost insuperable difficulties in the way of entailing on male
heirs, however remote in time and blood, the lesser fiefs, that is, those which
are not sovereign {fiefs de digniU) and excepted by political and dynastic
rules. To create such limitations the English and Scottish aristocracy
have frequently addressed themselves. Full force has been given to this
intention by the Scottish lawyers ; and, at this moment, it is admitted that
the law of entail in that country is equally absurd and mischievous ; pre-
judicial to the improvement of the country, injurious to the character and

. i'lll-

influence of the landlord class, and contrary to natural affection and
right. But, in England, the lawyers have as sedulously and quietly set
themselves to defeat that intention ; and, no statutory enactments have
been proof against their ingenuity. No settlement of any property, real
or personal, can bo made, by any device, good beyond the life or majority
of the child of a person in being, which seems the natural limit of the
moral affections. If a settlement of the former, the Courts of Equity
will void it for remoteness ; if of the latter, the courts of law will make
it voidable, when two persons, in v/hom the tenancy in possession and the
inheritance become vested, combine. Thus, while English law holds a
medium course, the Scottish and the French law each run iftto opposite
extremes.

It must be admitted, however, that, from these evasions and fictions,
English law has become a complicated art rather than a science. And,
therefore, of late, English lawyers have addressed themselves to simplify-
ing its practice and harmonizing its principles ; and, in a very few years, the
law of property will probably assume the shapeof a code, as the Criminal
Law does now, and be as intelligible and simple as any other.

The singular impracticableness of French philosophy is well instanced
in the lecture to whicli I have referred. Speaking of the decline of the
monarchy of Louis XIV., M. Guizot says, " I wish to call your
attention to the gravest, and, in my opinion, the most instructive fact
which this great spectacle has revealed to us. It is the danger, the
evil, the insurmountable vice of absolute power, wheresoever it may exist,
whatsoever name it may bear, and for whatever object it may be exercised.
We have seen that the government of Louis XIV. perished almost from this
single cause." So did that of Louis Philippe, which was quite as despotic
in its way, e\ en more so, considering the relative state of European civiliz-
ation. " There is nothing but the general freedom of every right, interest
and opinion, the fi'ee manifestation and legal existence of all these forces,
— there is nothing, 1 say, but a system which insures all this, can restrain
every political force or power within its legitimate bounds and prevent it
from encroaching on the others, so as to produce the real and beneficial
subsistence of free enquiry." And this M. Guizot was the minister who
precipitated a revolution by suppressing public meetings and forbidding a
nobleman to give a ])olitieal diinier in his own mansion. A " bold and
vigorous flight'* — followed by one of a very different description.

I have gone into this disquisition because some superficial knowledge,
at least, of the history of nations, and the origin of their institutions, is
necessary for understanding either the rights of jjersons, or the tendency of
populations, and the causes which affect their social state, and make them
orderly, jirosperous and united, or the reverse.

With this introduction, I now proceed to consider Mr. Drummond's
Bill.

It appears that in the Ninth year of the Reign of George IV. an Act
was passed by the Legislature of Lower Canada, introduced, I am told,
by Mr, Bowen; but the Royal Assent was so long delayed that it is doubt-
Ail if it be in force, though it has been considered so to be, and has been

acted on. This now law merely re-enacts it and disposes of the doubt,
both prospectively arfd retrospectively. The Act will be found in the
Revised Statutes, page 187. It is intituled, " An Act for rendering valid
conveyances of Lands and other immoveable property held in free and com-
mon soocage within the Province of Lower Canada, and for other purposes
therein mmtioned.^' Of the first and longest clause of Mr. Bowen's Act, it
is enough to say that it recites an imperial Act 6 Geo. IV., directing that
the lands held in free and common soccage should be held, devised, in-
herited, conveyed, and charged with dower according to the laws of Eng-
land; but it adds that as many conveyances, &c., had taken place not in
accordance with that law, they should nevertheless be held to be good if
the title under which they were effected was good. (Note.)

The second enacts that all future conveyances shall be good whether
made by the law of England or the law of the Province- The contract-
ing parties to have the option of the mode of making them. (Notei)

The third, that mortgages, hypotheques and claims ofbailleur de fonds
created before the passing of the Act in mode according to the law of the
Province, shall be good. To this there seems no reasonable objection ;
nor to the next, which enacts that all future mortgages shall be made
according to the law of the Province ; for the French mode of charging
estates is more simple than the English, and there are no judges to
administer the English law of equity, which alone takes charge at home
of such matters. The fifth clause is of an analogous tenor.

The sixth clause is of more dubious merit. It directs that if any one
has died before the passing of the bill, seized of lands in soccage, without
partitioning the same by will or otherwise, the heirs shall partition them
according to the old law of the Province, unless they agree to the con-
trary. It seems unjust that the English law of succession should not
follow an English tenure. I do not however apprehend that if a person
Juts made a will and has not partitioned — that is if he has two sons, and for
any reason, good or bad, has chosen to disinherit one of them — in prac-
tice the law has stepped in to partition for him ; that it should do so is the
grammatical meaning of the clause, though I believe not the intention of
the Legislature nor the interpretation hitherto.

All this Mr. Drummond's Bill re-enacts and confirms. Now comes
in the original part of it. The marginal note to the second clause is
" How free and common soccage lands of persons dying intestate after 1st
Sept. 1831, {th date of the original Act) shall be partitioned among the
heirs." This seems harmless enough. If a man dies without making a
will, it is to bo presumed that he desires, as the English phrase is, the
law to make a will for him. The same inconvenience — if he desires other-
wise, but is guilty of negligence, — may happen to the family of an
intestate where the succession of real estate is exclusivelv to the eldest
son, and perhaps greater injustice accrue ; though I never knew such a
thing happen excepting in novels. Such things are rare exceptions ;
though I must say, that from observation of the working of both systems
— the English of allowing full power to the parent to dispose at his will,
and either to divide or to charge with portions for younger children and

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heirs, at lib option, and the French of very much restricting the power,
limiting it by marital rights and in many cases forcibly dividing, — I think
the former the best, and that the backward condition of the rural Conadians
is very much owing to the prevalence of the latter, and to the custom of
division which it engenders, even where division is not strictly neces-
sary. It appears to me that the latter restricts industry*, energy and
locomotion ; takes away the desire of education, of rising in the world,
and the inducements to the accumulation of capital ; and, by tying
down all the associations and hopes of families to a particular spot of
earth, converts what ought to be thriving farms into petty hovels and gar-
dens ; and induces the younger sons, instead of starting out energetically
to new soils, with some assistance from the patrimonial estate, to become
mere labourers on insufficient patches of land, or the unskilled servants
of others instead of skilful mechanics, (Note.) This, however, is their
business. If they like the system, it is their birthright, and no one has
a right to meddle with it without their consent. But the marginal note
does not seem to me to be carried out by the clause.

" II. And be it enacted, That when any proprietor of land or im-
** moveable property, granted or held in free and common soceage in
" Lower Canada, shall have died since the passing of the Provincial Act
*' hereinbefore cited and confirmed either before or after the passing
" of this Act, without having partitioned the same, either by last will or
" testament or otherwise, the heirs of such proprietor shall be held to
" partition such land or immoveable property according to the old Laws of
" Lower Canada, unless the said heirs should or shall have agreed among
" themselves on a diflferent partition. Provided always, that nothing in
" this section shall be construed to invalidate any right acquired by pre-
" scription, or acquired before the passing of this Act by any heir or
" other party, under the judgment of any competent Court or acquired
" bond fide, for a valuable consideration, and before the passing of this
'* Act, by any thu-d party, from or through any heir from or through
" whom without this section such right could have been validly acquired,
" saving however in the case last mentioned, the recourse of the other
" heirs against such heir."

I apprehend that, according to all construction, the word " partition,'*
occurring twice in the same clause, must be held to mean the same in
both cases, and in the second its meaning is defined ; and that the de-
visor must partition substantially in the spirit of the " old laws." This,
however, I understand, is not the intention, and that there will be no
objection to introduce the word "devised" in lieu of the Urst "parti-
tioned," or any other word which may express the full power of the party
to dispose of his estate as he wills.

The last clause is what has principally occasioned misunderstanding.

" III. And be it declared and enacted. That except in so far as it is
" otherwise expressly provided by the said Act, or by tliis Act, or by some
" other Act in force in Lower Canada, the rights of all parties in, to, or
*' respecting, or arising out of, or affecting lands or immoveable property
" held in free and common soceage in that part of this Province, and

im-

** all matters and incidents relative to such lands or property, are and
*^ shall be governed by the same Laws and Rules as if such lands or pro-
" perty were held in franc aleu roturier, and shall be deemed to have
" been so governed at any time heretofore, except in so far as it may have
" been otherwise expressly provided by some Act or Law in force at such
" time in Lower Canada."

I was at first disposed to thi .k, with many, that this was an arbitrary
invasion of British rights; and though I well knew that franc aleu ro-
turier was not a feudal title nor had any thing to do with seigniories, I sus-
pected that it might impose on th« township lands the French laws, as they
relate to successions and conjugal rights, which, whether good or bad
in themselves, are quite unsuited to English customs and domestic econo-
my. But, looking carefully at the exceptions in the Act confirmed, as
cited in a note below, I do not see that, though this may remove a doubt
in some unanticipated case, it can interfere with any transaction, of any
importance whatever, connected with the enjoyment or transmission in the
English mode of any estate in soccage. {Note.)

Upon the whole, the Bill appears to me to be a good one, and one
that need excite no jealousy. The alterations, so far as they go, are im-
provements. Partitioning the property of intestates (which the English
law itself does in personal or moveable property) is better than following
the strict line of primogeniture. It is much better to place the charging
of estates under the French law, as done in Mr. Bowen's Act, because
that is the one Judges and Advocate, here are best accustomed to, and it
does not materially differ from the English. Where it does differ it ought
to differ, as we have in Canada the benefit of a Register, and land can
be treated jilmost as simply as a chattel, and more securely. This many
great English lawyers have aimed at ; the English equity not admitting,
except by a modern fiction called an " equitable mortgage," the giving
** hypotheque" or security by simple deed ; but requiring the mort-gage or
absolute conveyance of the whole title, with conveyance back on redemp-
tion. The whole administration of this branch of jurisprudence in England
is universally complained of as cumbrous, costly and abstruse. No person,
I think, lending or borrowing on landed security, could hesitate to
prefer the French to the English law, both for safety and economy.

I would, however, venture to suggest that a further improvement
might be made, perfectly in the spirit of all the Acts. The English law
referred to, as the standard, is that in force in 1831. But, within the last
eighteen years, and particularly in the five or six which succeeded 1831,
great improvements have been made, which met at first with opposition,
but, latterly, with unanimous approbation. The English law of doiver in
1831 was quite an anomaly, and the greatest obstruction in the way of
conveying lands, adding much to the expense, and effected by modes
which would be here practicable with difficulty, if practicable at all. It
would therefore, I think, be a material improvement, and one necessary to
give force to the intentions of the framers of both Acts, to add a clause
enacting that the " dower or other rights of married women'', shall follow
the English law of the dale of the passing of this the last Act, and that

:i;i

,-!i .<

! : ■
i 1»

acknowledgements of the Deeds of married women shall be taken before a
Notary and the Registrar of the District, in like manner as before the
Commissioner of the Supreme Courts in England, and to be filed notarially
and registered. And to this a near approach is already made ; for, by the
Registration Act, 4 Vict., cap. 30, it is enacted (page 209 Revised Statut-
es) that a married woman may alienate lands, by whatsoever tenure
they are held, on interrogatory bsfore a judge, if she be resident in the
Province, or without it if she is not (Clause xxiv.) ; and (Clause xxv.), by
joining with her husband in a deed of alienation, a married woman may bar
dower, or whatsoever right or title accrues to her in her marital state.
(Note.)

It also seems to me that considerable difficulty may arise, in parti-
tioning lands as en franc aleu roturier, when, as will be in such cases,
the right to dower exists according to the English law, the French law
recognising a different species of right altogether, and this ought to be
provided for by express enactment.

I now come to the mode of converting lands held by any feudal title
into albd or frano aleu roturier.

We will begin with the simplest part of the business, the seigniories
held directly of the crown. The number and extent of the arriere-Jiefs,
or what in England we call "mesne manors" {Note), that is, subinfeudations
by grant of the chief lord to hold of himself, are small here ; while, in Eng-
land, the subdivision of the great baronies or other honours into knights*
fees or portions of them, generally prevail, as it did in old France. Th
Canadian system, being f imded nearly all at once on a codified basis, and
recorded precedents, is very simple and very uniform. The English is pre-
cisely the reverse, being very complicated and very variable ; being the
result of innumerable and protracted contests, both of laws and of races ;
and, at last, resolvable principally into local customs. During the last ten
years there have been attempts made by very able men, particularly by
Sir James Graham and Mr. Aglionby, to effect a general commutation of
copyhold and customary tenures all over the kingdom. But these have
fallen far short of success. Nothing efiHcient has been done, except by
local Acts of Parliament legalising voluntary agreements ; and, by the last
mail, we are informed that the Chancellor of the Exchequer, in reply to
a question from Mr. Aglionby, said that the Government and the House
of Lords could not get over the difficulties of compulsory enfranchisement,
and that all they could do was to facilitate enfranchisements.

Hence, the burthens of the seigneur are very easy to estimate. It is
admitted that the military incidents of the feudal tenure were never in-
troduced in Canada, nor do I believe was that of Justice (jurisdiction,
civil and criminal), for reasons I shall presently assign.

The sole pecuniary burthen upon the seigneurs of fief is the qmnt,
or fifth penny of the value on mutation of ownership by sale or gift not
in direct line ; the Commissioners (Report, P. 2) state that the custom of
paying to the crown a year's rent on succession of collaterals was never
enforced here. They also observe that there are some few remote grants
by a custom, other than that of Paris, — that of Vemn U Franoais. On
that a year's rent accrues to the Crown with every change of ownership,
whatever the kind, and the like to the lord from his cetmtaires.

mmn'

The value of the quint to the Crown appears to be exceedingly small,
either from the rareness of the mutations of the fief (Note) or from some
favouritism. From 1803 to 1841, inclusive, it was £31,778.

This the seigneurs might fairly be called on to commute into a land
tax, or into a capital sum, which latter was done in Beauharnois, and two
or three small seigniories, at the rate of sixpence an acre. And it would
form a very appropriate fund for accumulation at interest to extinguish the
seignioral rights altogether. But some of the seigneur?, without the
slightest consideration for the much heavier burdens they impose on the
censitaires, set up the ridiculous claim that it ought to be given up to
them as a compensation for the loss of haute, moyenne, and basse justicey
which, if they ever possessed it, they have lost so long, that I do not
believe they know what it means. The grants ran in the old form, and I
know of no proof that it was anything more than a form. Whoever will
look at the authorities will find that the middle and low justice implied
nothing beyond jurisdiction in cases of a few farthings in amount, either in
penalty or damage ; and that, at the time of the principal settlement of Cana-
da, by the royal edict of 1670 the Seigneurs Justiciers were virtually depriv-
ed of all judicial authority, in favour of the Royal Judges, as had been done
in most European countries long before. And I do not believe that any
proof can be afforded, that any person ever administered haute justice in
Canada, but the Intendant of the King of France and his judges ; or that
any seigneur ever set up his fouche paiibulaire, or gallows, on two pillars,
any more than the Baron of I/)ngueuil his on three, or the Marquis of
Beauharnois his on six, the outward and visible signs of their respective
rank, like the famous "hanging stones" of the Douglas and several
other noble families at home. (Note.)

The question, as respects the fiefs, is simply the value of the quint.

The first attempt to commute either Jief or censive, appears to have
been made in the Imperial Act, 3 Geo. IV., c. 119, rather indicating the
wish than any practical means of accomplishing it. In this Act, intituled,
" An Act to regulate Trade and Commerce, and for other purposes,'* a
clause is introduced, by which it is enacted that lands held in fief and
seigniory may, on petition of their owners, be changed into free and
common soccage on payment of such sums of money, in lieu of feudal fines
and other dues, as may seem reasonable to the Governor of the Province.

The authors of the Act seem very soon to have become aware that
this did not attain the object desired, which was to enfranchise, not the
seigneurs, but those who held en titre of the seigneurs, and who were, in
fact, the actual proprietors of the soil. In the 6 Geo. IV., cap. 59, a new
Act was passed, better known by the title of the Canada Tenures Act. This,
in the preamble, observes, that the preceding Act does not apply to the
censitaires or other persons having title under the fief; and provides that
the seigneur, by surrender to the crown of his unconceded lands, may
be allowed to commute the droit de quinte and all the other dues of the
crown in respect of his seigniory, and receive a fresh grant in free and
common soccage of the lands not already en titre de cens, that is, not
granted seigniorially.

i i

At '

The Act then provides that the ceiisitaires also may compel the
seigneur to commute with them, when he himself has commuted with the
crown ; the price to be fixed by experts or valuers ; that the tenure of
such lands shall be free and common soceage ; and all lands granted by
the crown in soceage shall, in the matters of sale, dower, and inheritance
follow the laws of England.

These Acts appyear to have been prepared by persons totally ignor-
ant of French law, and to be devoid of all executory force. The fiction
of surrender on trust for a grant is borrowed from the English law of
transmission or alienation of copyholds not of inheritance. But, in the
French law, it is difficult 'to find any seigneur so situated that the whole
fee is vested in liini, and that, without the aid of reversioners and copar-
ceners, many, from minority, or otherwise, not in a condition to assent, he
can alienate and receive a new title acquitting him of the obligations
of the old one. Nor, though it was doubtless intended that enfranchised
censitaires should take and hold under the English law, is it to be con-
strued, even giving to words of enfranchisement the largest interpretation
of which they are susceptible, that they can, by agreeing voluntarily or
judicially with their lord, be placed in the position by such agreement as
he himself by grant of the crown. The law, therefore, remained a dead
letter, except in the instance of two or three seigniories, of which the prin-
cipal is Beauharnois ; and I apprehend that mesne commutations under it
will in no respect take the lands commuted out of French law, so far as
conveyance, settlement and inheritance ; and such commutations have been
few, if any. The real effect of the commutation by the seigneur, will be to
convert the fief into franc aleu noble, having mouvant in itself the censives,
where conceded ; and to convert the unconceded lands into freehold of
demesne ; that is, to give the seigneur an absolute title to the soil, to the
prejudice of the common right of tlie people to settle on it on conditions,
and to the defeat of the provisions of the old law compelling the seigneur
to provide for its cultivation ; and, so far, it is a most iniquitous law, of
which happily few persons have the power to avail themselves ; and, so
far as the censitaires are concerned, few of them any inducement.

The next attempt at the commutation of the seigniories is one much
better considered, and which, so far as the extent of its operation, has worked
exceedingly well. The burthen of the seignorial tenure is most sensibly
felt in improving neighbourhoods, to the improvement of which it offers a
great bar, by the levying to the seigneurs of a fine of eight per cent
on the gross value, in every sale or transfer out of the direct line of des-
cent. This was especially a grievance in Montreal. The title of the seig-
neurs of Montreal, the gentlemen possessing the great domain . of the
Seminary of St. Sulpice, having been disputed, an Ordinance, confirmed
by the Imperial Parliament, 3 and 4 Vic., cap. 30, Mas passed, settling
and regulating it. Into the general merits of that Ordinance and the
title of the reverend gentlemen, subjects of hot dispute in their day, and
not now altogether undoubted, it is not my purpose to enquire. All
that I have to notice is, that the law provides for the commutation, at the
option of the censitaires, or customary tenants, as we say in England, of
the copyholds into freeholds ; that is, of the censives into franc aleu

roiuriare. The fiefs to which it relates are those of the Island of Montreal,
the Lake of the Two Mountains, and of St. Sulpice. The mode is, when
voluntary agreement is not effected, arbitrators may be chosen, one by
each party, with an umpire, who shall value the claims of the Seminary,
to be discharged either by payment of a capital sum, or by charging the
land with an equivalent quit-rent. I believe that such commutations are
always voluntarily dealt with by the corporation in a very liberal spirit.
{Note.)

The next in the order of time, is the Act Vic. 8, cap. 42, March 29,
1845, for which the public are indebted to Mr. Christie, who has bestowed
great labour on this important subject. This law is framed with great
care and profound attention to the native jurisprudence of the Province.
Unfortunately it only provides for optional commutations, the difficulty, in
the way of compulsory ones, being almost insuperable from the complicity of
the seigniorial titles themselves. Without a very costly and cumbrous
framework of commissioners of trusts, to which the products of the commu-
tations might be paid for the satisfaction of the active or accruing rights, it is
difficult to see how commutation can be made compulsory without a spolia-
tion of some party or other. Still, I think that the idea, which Mr. Christie
has often propounded, is a very good one; that no lands whatever shall
henceforth be conceded in feudality ; but all in franc aleu or soccage, at the
customary censive whatever it be, with a moderate addition to be merged
with it in a quit rent {en constitut) to the fair extent of the lord's rights,
and to follow the distribution of the seigniorial inheritance. The evil is
admitted. Why should it in our day be multiplied and perpetuated ?

The general principle of this Act is to enable the seigneur, whatever
be his title, to convert the dues and fines of all kinds, into a capital sum
or a quit-rent. The rights of the crown and of third parties are elabor-
ately provided for, and also the destination and the redemption of the
annual payment. I fear, however, tiiis law, so carefully contrived, is
nearly a dead letter, its evocation being entirely optional, and impractica-
ble without the consent of two parties who have usually very different
notions of their relative rights ; and must be, until the great difficulty is
solved — what, in either a legal or moral sense is the " customary" censive ?
Passing over two short Acts empowering the commutation of three
small and dependant fiefs in the City of Montreal, the provisions of which
are easily learned by any one interested, we come to the Act X. and XL,
Vic, cap. 91.

At the acquisition of Canada the British found that the Jesuits,
expelled as they have again and more recently been, from all, or
nearly all, the Roman Catholic countries of Europe, had found a refuge
in this Colony, where they had acquired great wealth, and were address-
ing themselves, as usual, to influencing the minds and cultivating, after
their fashion, the intellects of the people, and improving their material
condition by instruction in agriculture and the arts. Of all the religious
orders, with the exception of the Benedictines, less practical and perhaps
more learned than they, the brethren of the Sodality of Jesus have most
addressed themselves to improve the condition of man in his sublunary
sphere, and have treated a religious life not as a life of isolated contem-

Vi?

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plation and ascetic reform, ao much as one devoted to advancing the
human race in what, rightly or wrongly, they believed to be for its tem-
poral as well as spiritual welfare. And, of all the religidus in the Prov-
ince, they alono were refused the benefits of capitulation and were des-
poiled. The projudices, perhaps the not altogether unjust fears of the
day, scarcely admitted of any thing less. The time had not come when,
as in Britain and the United States now, a more vigorous frame of society
and a more enlightened public opinion can afford to look with indiffer-
ence on a body which is only formidable where intrigue is power, and
free discussion deemed unsafe. This, however, must be said for the
British government ; that, though provoked by a recent conspiracy against
the Protestant dynasty, in which the Jesuits even forgot their vaunted
allegiance to the Pope, it treated the individual members of the proscribed
order with a degree of pecuniary liberality utterly unknown in Roman
Catholic countries themselves, and personal rights were most scrupulously
respected. The suppression of the order was, perhaps, a necessity of the
times ; but, regarding it merely in a political and economical point of view,
I think it is to be regretted. The Jesuits would have furnished a conser-
vative element in a country where such elements are much wanting. And
they were, of all others, best fitted to conduct a people in the transition
state, from that of border warfare and hunting, to the newer paths of
industrial life. They might have been useful ; I scarcely see how they
could have been dangerous.

But, be this as it may, the extinction of the order placed in the pos-
session of the crown a very large domain in some of the best and oldest
settled parts of Canada. One would have thought that, with the zeal
which the English government professed to feel for the tenure of free and
common soccage, it would not grant lands on these and its other domains
in any other tenure. But almost all worth granting was, or is granted
en censive.

The Act in question is for the better giving effect, a? respects the
crown, to the intention of the Acts of the 3rd and 6th of Geo. IV. The
process of commutation is simplified and cheapened. The rates are fixed,
and they vary, under the circumstances, from the twentietl* to the twelfth
of the improved value of the property to be enfranchished, and the value
may be settled by arbitrators. This Act, the importance of which is
principally local, and in Quebec, Three Rivers, Sorel, and Laprairie, can
easily be consulted by any one having an interest in its operation. It is
page 1930 of the current volume of the Statutes.

Such, I believe, is an accurate summary of the different attempts,
which have been made to convert the tenures en fief and en censive into
franc cAeu ; and in all it is remarkable how signally they have failed of
anything like extensive success, excepting in the cities ; and how passive
have been the great bulk of the parties, cno would think most interested,
the seigneurs and the censitaires themselves. The former seem determined
to put off settlement until settlement is impossible ; and to enforce the law
until there is no law to enforce ; as the clergy, in spite of many most
significant warnings, are delaying the commutation of tithe which, in
England and Ireland, has saved it from the fate which it has met with in
almost every other country in Europe.

now

WiUi respect to the interest of the cenaitaires in commuting, it is
confined almost, if not altogether, to the inhabitants of a fe^v large and
improving towns ; and, fully to perceive that fact, it is only necessary to
inquire what the feudal tenure really is.

Most persons who come to this country from the British dominions
at home, have an idea that every thing which is different in the law of
the land from that to which they have been accustomed, is a part of the
feudal tenure. It is true, that all the laws of real property are expressed
in the C(yii'tume de Paris and its commentators. But very little of that is
feudal. Nearly the whole belongs to the civil law, which has become a
part of it and is expressed in it. By taking lands out of feudality and
converting them into franc aleu roturier, parties soon find that ^hey by no
means exempt themselves from tlie " old laws" of the Proviiice, and that
the distribution of property, the rights of matrimony, and the wliole body
of laws, as affects all the relations between man and man in the business
transactions of life, remain as they were, whatever be the tenure of the
luid.

It is, however, only of this, the eensive tenure, that I have to speak
now ; and, when we look at its incidents, we shall see how few are the
inducements in ordinary cases to make any sacrifice to convert it into
freehold or franc cdeu, even if the settlement of property allowed the
seigneur full power to commute, with his censitaires, dues which are
rarely his in any absolute right, he himself having seldom more than a
life interest, subject to contingencies difficult to estimate. And, what is
more difficult still, the basis on which those dues are to.be estimated is
not settled ; the lords and the tenants, or censitaires, differing seriously on
this most material point, without a settlement of which no compulsory com-
mutation can ever possibly be arranged to the satisfaction of both parties.

I shall touch these points briefly.

The right of the lord over fisheries, that to excavate stone, and to
cut wood for the repair of the manor house, are so unimportant and so
seldom exercised, that it would be difficult to induce any censitaire to
pay money for their commutation.

The corvee or compulsory labour is complained of rather as an irri-
tation than a burthen, and generally is of right commutable for a small fixed
money payment.

The right to the banal mill, that is, the reciprocal obligation of the
lord to erect a mill for the grinding t'.e grain of his tenants, and, the obli-
gation on their part to frequent the mill, is, in most instances, of mutual
advantage ; and, in none that I am aware of, is it an oppression. The
customary mulcture of one fourteenth is so low that generally the water
power would be worth to a common miller, to whom it is usually let,
that which he pays ; nor is the obligation enforced, nor is it easy to
enforce, with much rigour. There can be very little doubt that the in-
tention of the reservation was to give the whole usufruct of the water-
power to the lord. But, at that tim?^, water was not applied to any
other but agricultural purposes ; and, at present, there is in some seigniories
no obstruction to employing water- powei' in any mechanical work. I have
heard of one instance of setting up the right to the banal mill as against

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the erection of a steam-mill ; but I believe this is a pure usurpation, and
would be untenable in a court of law ; being in restraint of commerce
and of natural ^right, which nothing but express enactment can abridge.
The custom of the Province being clearly established for oii .r purposes
than that of grinding corn, I do not see that, in respect of corn, the grant
can extend beyond the strict purpose of the banalitie, that is, the grinding
of the corn raised within its limits, or such portion of it, as the grant,
modified by the custom, or prescription, may limit.

Another incident of the feudal tenure is, what is called in the French
law, cens et rentes, or quit-rent ; being a small annual payment which,
doubtless, in its origin, represented a bona fide farm rent of a tenant at
will, owed to the lord ; but which, in English copyhold? as well as in the
French censives, had, in a time more remote than that of reducing to writing
the Coutume cle Paris, become what the English call a customary rent ;
that is, a rent not arbitrary, but limited by custom. Such, at least, is the
opinion of Argou (Vol. 1, L. 2, C. 4), and it seems more rational than
that cf De Ferriere, (verb. Cens), that the reservations are in terms coeval
with the concession.

Cens is the general name for all due of right, from the villein to the
lord ; and, thougli its etymology is not given by either of the authorities to
which I have referred, it is doubtless derived from censeo, to reckon, or
keep account.

The usual rent due from the censitaire to the seigneur was originally
one penny an acre or arpent ; but, in most seigniories, it has been aug-
mented, and is now so much as four-pence or even eight-pence. And here
occurs a remarkable distinction between the English and French law.
According to the former no custom could have been set up within the
limit of time, Avithin which this country has been settled, to add to the
hnrihens oi the censitaire ; but, according to the latter, a comparatively
short period makes a prescription in favour of tb^ seignieur.

In dealing, therefore, with the matter, in view of commutation, a
question arises, — what are the rights of the seignicurs ? So far as com-
muting into an annual payment, there is no object in d-j .ling with the
rente fonciere ; because it is such already. But, ir converting into a
capital sum, what is the fair consideration ? The courts of law have
decidad in favour of the higher rent j but the popular opinion is most
strongly in favour of the original and lower rate, and that anything more
is usurpation. It is decidedly against English practice that a custom, of
recorded date, should be set against the written title of the party pleading
it and the law of the land ; (Note) and unfortunately it happens, that the
judges, having principally belonged to the seigniorial class, and nothaviig
had, until quite of late years,the reputation for impartiality to which French
lawyers have been, quite as much as any other, entitled, the decisions of the
courts have not had the moral weight which they might have had in an
other ease. (Note.) Until this question is settled, there can be no general
and amicable coniiuutation, except on the principle of leaving it open. (iVbfe.)

But the most burthensome portion of the cens in some localities, and
the least burthensome in others, are the lods et ventes, and the accompany-
ing droit de retraite.

The former appears to have been originally a " fine arbitrary" on
mutation. In English copyholds this is limited to two years' improved
value. Here, it is the twelfth penny on the proceeds of sale or of mutation
equivalent to sale. It is not, as in many English copyholds, on death of
lord or change of tenant ; but, merely on alienation otherwise than by
inheritance. [Note.) Such a fine is a very great burthen in towns, where
property is improved, and frequently transferred ; but little or none in sit-
uatiotis where property is not improved and its owners do not v^nd it. Con-
sequently, anything like a general rule for estimation is difficult to come
at; for, in one seigniory, a farm may not change hands for a century;
while, in another, it may be sold on an average every seven years. Any
compulsory conversion must obviously be on the * erage mutations of
years, if it is to be just, and one rule will not fit all. {Note.)

Akin to this is the droit de retraite, which the cemitaircs contend, I
think with clear and irrefragable justice, ought not to be matter of pur-
chase, if the lods et venfes are determined. It is the right of the seigneur,
if he ^Mnks the estate censive is sold below its value, so as to deprive him
of atair cens, to buy it in at the price named for him on which to take cens.
This is merely to protect him from fraud ; not for purposes of profit ; and
if the cens ceases, so ought the retraite. In the same way as in custom-
houses, where there are ad valorem duties, it is a very proper check for the
customs* officers to take the imports at the value put upon them, if they
think they are undervalued ; but it would be very tyrannical to do so for
any other purpose than the protection of the revenue, for which it was
enacted ; and, if the taxation ceases, the pre-emption ought to cease also.

From all these considerations it will be seen what very serious diffi-
culties stand in the way of the commutation of the seigniories in Canada.
For my part, I think ihe knot is much more likely to be cut than untied.
The seigneurs are quite destitute of the territorial influence, which, in
Europe, attends the possession of wide domains. Either they lose their
rights by not exercising them, or they are regarded as little better than
extortioners and tax-gatherers ; and every thing they demand is considered
an invasion of natural right, without reference to its legality, by a popu-
lation not sufficiently instructed to know that all law is in restriction of
natural right ; and that such restriction is the security for property of any
and every kind. Nor, with the solitary exception of Mr. Christie, not-
withstanding all the clamour, for many years back, both among the British
and the Canadian population, does any one appear to have set to work
with any determined purpose of reforming.

The truth is, that any one who looks into tlus matter, will find that
the real grievr" ce with the rural censitaires is the nayment of rents and
dues, which would not be in the least diminished by capitalising tliem ; and
that, with the urban and commercial British, the grievance is, not the feudal
tenure, but the whole code of the civil law ; with the operation of which
they are unacquainted and which does not agree with their notions of jus-
tice ; any more than the British law of marital right and inheritance would
with tliose of the Canadians. The French willingly admit the superiority

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of the English criminal law, and they havo adopted it. But they, as stren-
uously, assort the superiority of their own civil code ; and it certainly has
the merit of being much more intelligible and of approaching more nearly
to an exact, than any other of the mixed sciences.

In looking, therefore, at the practical application of the feudal code,
we find that, in tiie instances in which commutation is most desirable, it is
already practicable. In the cities, the question of the cens et rentes is of
little importance. That of the lods et ventes is the only one worthy of
consideration. Nearly the whole of Montreal, and a very large portion of
Three Rivers and Quebec belongs to the government or ecclesiastical
corporations, and commutation may be demanded of right. When
a man wants to build, or to sell, he begins by commuting. But, ii\.
the country, where is the object, except when the land is so rapidly im-
proving that something may be prospectively saved by commuting at an
unimproved value ? I fear that there are few seigniories in Canada in that
condition. As for the retites they are already a money payment ; and the
question is but one of title. Within the municipal boundary of the city
of Montreal, commutation is going on very rapidly ; in the Island less so ;
and, I am credibly informed, that in the great seigniory of Two Mountains,
one of the finest and most flourishing in any country district of the Pro-
vince, and which also belongs to the gentlemen of the Seminary, and in
which they are compellable by Act of Legislature to commute, with the
recourse to the c«»wifaiV« of arbitration — that in this seigniory, up to a very
recent period, or in nearly ten years, but three commutations had been
effected. (Note).

My own opinion is, that the best plan would be to value the seig-
niories, exclusively of the rentes, and of the lands in demesne. Their
•whole value, I believe, would be found very triflii.g. I would take the
average often years and add a per ccntage for improvement ; and to ''.e
redemption of this, and to the entire extinction of the feudal title, I would
devote the proceeds of the sale of all public lands. In fact, I would buy
them out, and establish no new title but that of soccage or franc aleu.
No one who knows anything of human nature, or who has watched the
progress of events Avith any attention, can expect that if the seigneurs do
not do something of the kind their legal rights can long be maintained.
And the longer they put off tlic settlement the worse terms will they
obtain ; and it is an instinctive feeling of the kind which makes popular
orators, Avhile *hcy declaim against, and grossly exaggerate, the evils of
the system, not ])ress its practical solution ; and the same reasoning applies
exactly to the subjf; t of tithes; though these are extremely light; not
being exigeablo from Protestants ; being only the twenty-sixth, not the
tenth ; and falling on cereal grains alone ; to the exemption of tithe
of agistment, green crops, and other small subjects of ecclesiastical exac-
tion in Europe.

So much for the relations between the tenure en franc aleu and the
tenure en censive. The most important point is, that the nature of the
tenure does not aft'ect the succession or the obligations, according to the
civil law, as embodied in the Coatuma de Paris ; and that the only
instances in Avhich the English law prevails are those in which the grant is

expressly in free and common soccage ; and, in no material respect is it
proposed to alter this. I use, in its Canadian sense, the term " free and
common soccage/' which has been applied, in a most unaccountable man-
ner, to a tenure which never as feudal, but is purely allodial, the
authors of the Acts 3 and 6, Geo. IV, having obviously copied it from the
Statute of Charles in utter ignorance of the Canadian tenures ; and, as
the result showed, in equal impotence to effect their object. (Note).

I shall now conclude with a few remarks on the nature of titles and
successions under the French, or, to speak more correctly, the Roman law,
as contrasted with the English. The subject is a very extensive one, and
I can notice but a few of the more salient points. It is greatly to be re-
gretted that some one skilled in both laws does not minutely and accur-
ately contrast them. For no two codes can, in their nature and prin-
ciples, be more different, or lead to more diverse conclusions in respect of
the domestic relations, both of husband to wife, and of father to children.
And it is not too much to say that at this moment not one man of British
birth in twenty, resident in the seigneuries, or one man of Canadian birtli
of twenty settling in the townships, knows what disposition of his property
the law will allow, or what disposition the law will make for him if he
makes none himself. Unless something is done promptly, and efficiently,
the whole property of the country will soon bo involved in inextricable
confusion.

The French law makes the same distinction as the English between
moveable and immoveable, real and personal, property ; which are but
different modes of expressing the same thing, though the French law of
inheritance distributes them relatively in very different proportions from
what the English does. Both follow one principle very closely in
this, that, as Story observes, (Conflict of Laws, Cap. XII.) the succession
of personal property is " governed by the domicil of the intestate at the
time of his death and the inheritance oi real property by the law of the
place wherein it is situate." But, in the interpretation of th' »neral
principle, many difficulties arise, which he has learnedly discussed. To
interpret the law of the domicil, that of the lex loci of the subject of distri-
bution must be considered, and vice versa.

In general the principle of the distribution of moveable or personal
property is substantially the same, as respects children, being that of divi-
sion. And, as there were various customs in different Provinces of
Frarie and various modes of exercising them when complicated with other
property, so are there two in England, the customs of the Provinces of
York and Canterbury ; and each probably from the same reason, that, the
ecclesiastical courts, alone, assuming the prerogative of distributing'personal
estates and adjudicating on testaments, they, in different dioceses, more or
less modified by the introduction of the civil law, adopted the customs and
orders of inheritance which they found locally prevail. But all approximate
very nearly to the Civil or Roman law.

There is however one very material difference. In France, as here in
Canada, the heirs take the estate subject to the obligations of their prede-
cessor or aufeur. But in England, the heir of the real estate is entitled to

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have the personal obligations taken out of the personal estate and the real
estate cleared before there can be any distribution of the personalty. (Note.)
Unless in particular eases, governed by settlements or special contracts, the
primogenital right of the heir male of blood is not merged in the general
succession. And this difference of regard for primogeniture or droit
d'ainessG pervades both laws throughout.

In England the wife has, at common law, but a life interest to the ex-
tent of one-third of the rents of the real estate, as her dower, when she be-
comes a widow. In our law she has a communaute de biens or partnership,
in equal right to her husband, of which she cannot divest herself,
except in so far as the Act 4th of Vic. (page 18, ante) applies, in all
estates real or personal acquired after marriage ; and all that she brings to
the common stock is traced much more nicely in its results, according to
the principle materna maternis, paterna patetmis. But both laws agree in
this, that by a settlement, the title by common law to dower or community
is barred ; it being presumed that the formal contract of marriage defeats
the one which, according to the custom of the respective countries, is
implied.

Here the real estate of the female follows the succession of the
female ; and if she have no living child, and, no power by special settle-
ment, of divesting herself of it, nor, if she has any, does exercise any, it
goes to her representatives. And so it does generally, in England, if by
settlement she have no power of disposition ; but if she have a child which
dies before her, her husband may acquire a life interest ; and in some parti-
cular cases it Vests in him, and he and his heirs or devisees may succeed to
the prejudice of her kindred as the heir of that child, or they may jointly
sell. (Note.)

The English law takes no cognizance of the mode of acquisition of
property either real or personal during their joint lives ; all becomes vested
in the husband and descends as if he possessed it before marriage. The
real property goes to the eldest son, unless the deceased disposes other-
wise, with dower to the widow, unless by some means it is barred. The
distribution of the personal property is not altered by the mode of acqui-
sition. The testator has the whole and entire disposition of it ; but, in
cases of intestacy the wife has a much larger disposition and more exten-
sive enjoyment of it tlian here, and the rights of the children are much
less protected. For instance, if she marries again, and employs the per-
sonal property, witliout trust or settlement, in buying real estate, that
becomes vested in her second husband and passes to his heirs, though
she leave children of the first husband from whom she de/ived it living.
But practically, from the greater power of the husband in disposing ^y
■will, such cases rarely occur ; while here, people do much less to interfere
with the law, and trust more to what the law v/ili do for them.

In estates of any kind in Engliind, whether real or personal, it is
very rare indeed for them to pass in any other way than by trusts of the
preceding possessor, or marriage settlement, or disposition by will ; and
the law throws little difficulty in the way of making such dispositions ;
while, here, the rule of inheritance is much less easily and frequently
relaxed. The law merges the rights of the female and the succession of

Irer children much more completely in those of her husband than here.
And, consequently, much more care is take to protect them by settlements
and trusts, which are not determined by marriage, but are protracted over
a long series of years.

The general principle of the English law is this. As respects real
property it descends entire to the eldest son ; or, failing a son, is equally
divided among the daughters, as by the French law. Failing a child of
either sex, it goes to the eldest male heir in strict male limitation ; or,
failing such an heir, it is divided among the heirs of the next female colla-
terals, in the proportion of representation of the divided right of the
immediate progenitrix of each ; or, as the French say par souche ; ' ough
in the distribution though a female line, the preferable rights of tL^ males
(to real estate) revive to each, as respects the portion of the succession of
his mother. These principles which, as they travel out, become exceed-
ingly complicated, and even more so as respects personal than real
estate, apply in England at this day, with some few exceptions of local
custom, which are only matters of antiquarian research, to all estates of
inheritance of whatever extent or degree. The law of inheritance of free-
holds, whether they be great baronies or simple farms, is uniform, and
that of copyholds nearly so. It does, however, appear, (Blackstone B. 2,
C. XIV.) that for several generations after the Norman conquest, it was
not strictly settled whether a living son or a grandson by an elder
deceased son succeeded ; and that, while all the estates of military
tenure were admitted to follow the law of male primogeniture, up to
the time of Henry III., (anno 1216-72), the soccages, which were then
of very base nature, rotures in possession of the common people who had
not adopted the Norman manners, followed the ancient law of equal parti-
tion among the males, but still to the exclusion of the females.

And this law of succession seems generally to have prevailed, at that
period, among all the nobility of Europe, wherever the feudal system pre-
vailed, and indeed seems essential to the existence of a military aristocracy,
Avith some distinctions as to the capacity of females to inherit at all. From
those arose the dissensions as to male and female fiefs, and dynastic contests,
one of which plunged England and France into war for more than a cen-
tury, on the question whether King Edward the 3rd inherited the Crown
of France through his mother ; that is, whether the Saliquo law was a
fundamental portion of the constitution or merely a fiimily regulation ; and
a nearly similar question has been revived in our day in respect of the
right of the late King of Spain, Ferdinand VII., to dispose of the Crown
in favour of his daughter. And in France up to the revolution, and sub-
sequent to it by the institution of majorats, the*peerag('s and other great
dignities passed by a different law of inheritance from ho lessf." fiefs and
the rotures ; but as those laws utterly perished ti.^r?^ and wore never
known here, it is only the latter which concern us. I shall, therefore,
confine myself to extracting from the (Joutume de Paris the leading par-
ticulars affecting the distribution of seigniories, censives, and franc aleus
roturiere.

In distributing a seigniory, the eldest son takes the principal man-
sion, the court yard and appiu-tenances, an acre of the garden if there be

■A:

■'.I

;io

so much, and, if there be more garden, on paying for it in other land. Arts.
13 and 14. With respect to seniority the French law is the same as
the Scotch, which legitimates prenuptial issue by subsequent marriage. Of
this Story has largely treated.

If there are two children (enfans) the elder son takes, besides the
manor house, two thirds of the estate, and if there is more than one fief,
each is divided in the same way ; that is, a third is detailed for the younger.
Art 15. If there are more children the oldest son takes one half of the
lands and a house, &c., in each succession. (Note). Art. 16.

- The commentary on these articles is of course much longer than the
text. De Ferriere explains expressly that children of both sexes are meant
to succeed, but that the sole right of seniority is in the oldest son. He is
also of opinion that they extend to successions from the grand-father and
grand-mother, as well as from immediate parents.

The seventeenth article provides for the rights of the widow and
vounger children, when there is nothing but a manor house.

When there is no manor house, the eldest son selects an acre in lieu

of it.

There is no right of seniority among females, but all take alike. Art

19.

In collateral succession females are excluded, if there are males of
like degree ; that is, brothers of the deceased succeed, but sisters do not ;
and the nephews exclude the nieces in respect of the share of their parents
in the succession ; that is, the son of a sister and the son of a brother ex-
clude their elder sisters respectively ; but the rule stops there, or rather by
a process of law, rappel, it may be stopped in favour of grand-nieces.

Art 25.

If a son renounces his succession on a gift of another fief, in antici-
pation of his succession, he must account for its value beyond his heredi-
tary portion ; and, if he be the eldest son, the next son has no right of
seniority, Arts 2G, 27.

Franc aleu noble divides itself by the same rule. Art 68.

In case nephews succeed along with their uncle or aunt they succeed
par souches, that is by the share their parent would have had if living ;
but, if otherwise, that is if their grand-father has no living children, they
succeed par tetes, by equal division. Art. 320, 321. There are some
other distinctions of this kind which De Ferrier confesses are " very dif-
ficult and puzzle the cleverest people." {Note),

There is no seniority among collateral heirs. Art. 331.

The heirs of the deceased (if they do not renounce) are bound to
pay out of nis real or personal property all his debts in proportion to the
»• res they take. Art. 332.

These are the principal articles relating to the inheritance of fiefs,
. • ' are sufficient to give an idea of the general principles of the French
law and its tendency to nearly equal division among the children of either
sex, and of the very small extent of the preciput or advantage of primo-
geniture. I, by no moans, ofi'cr this an an exact exposition of the law of
inheritance at the present day, but rii sho\ving what are yet the principal
f'lomonts of tlio stvucturo.

.31

The articles of the Coutumo cle Paris are very meagre on tlie subject
of biens roturier. There is one article, Art. 327, which for some incom-
prehensible reason directs an entirely equal division, if among collateral
heirs, without any reference to donations during life. [Note). But the lead-
ing fact is that estates roturier, whether censive or franc aleu, copyhold or
freehold as we Avould say in England, are divided without any preference
to the eldest son or brother at all, and without any preference of sex ;
that, with such exception, and one or two incidental ones of little impor-
tance, they follow the same law of distribution and successions as the
fiefs ; that the whole tendency of the French law is to treat thorn like
what the English call " chattel interests," which, in many respects, is
attended with advantages ; for, by cheapening alienation and facilitating
division, it spares the creation of trusts. In ftict, with the low price of
land here, the English system could never be worked at all, as Mr. Maseres
well points out.

In one respect, the relation between a personal and a real right, the
French fundamentally diifers from the English law in a very important
particular. In England, if the owner in possession of an estate of inheri-
tance grant a lease for any term of years to w'lich his estate extends, and
he sells the estate, he sells subject to the lease, and it is good against
the purchaser. But here, that is on such land as the English law has not
been extended to, the lease terminates with the sale, and the lessee has no
remedy but a personal one against the seller or lessor. And, for this
reason, the letting on improving leases, so common in England and Scot-
land, and so efficient for applying small capitals to the improvement of pro-
perty, is unknown here, and the houseowning class are, in general, an
indebted class ; for those who can give good personal security to an im-
proving tenant can usually find the money themselves. {Note.)

With respect to the French la>, of Dower, which differs as widely from
the English as that of inheritance, I will translate, as nearly as possible,
from De Ferriere's summary of the Coutitme. I must, however, again ob-
serve, that all these things are much modified in practice ; as, in the
English law books of the last century, one must only expect to find prin-
ciples ; but, without looking for the principles, the practice will never bo
intelligible. Still, the united French-Roman law is much more reduced to
system, and more homogeneous in its texture than the English ; and the
variations in the difierent provinces, were, before they were codified by
Napoleon, much less than those between England and Scotland, and the
difierent Foreign possessions of the Crown.

*' In the Custom of Paris, the customary dowry is one half of the
inheritances, of which the husband is seized on the day of marriage, and
" of those which fall to him afterwards and during the marriage, by direct
" inheritance, by donation, by legacy, or succession."

" Immoveable debts (I think the English phrase would bo, securities
" on real property, or savouring of the realty), such as rentes constituees,
" (a fee farm rent, or an annuity, terminable or interminable charged ou
" the estate), which are due by the husband before his marriage diminish
" the dowry, thus —

*' If a man marry with a yearly iiK'ome of six thousand livres of in

i'i.'

•' horifeanco, clear of inunovoable debt, his widow will enjoy tliroo thoiisanJ
" livres for her dowry. But, if ho has on it hors de son marriage, (by ol)-
" ligation provions to the marriage), two thousand livres a year, the
" widow will but take two thousand livres for her dowry."

♦' Moveable (personal) debts are not taken into account, as the movc-
" able debts to the husband do not augment the dowry."

" The dowry prefix (that made by settlement) is what the parties
" agree on, and it is to bo taken out of the husband's part of the goods
" and community, or, if that be not sufficient, from the wife's."

" The customary dower is a species of alimentary pension for the
*' wife, and a Ugithne (defined or entailed inheritance) for her children."

" If the husband docs not leave enough effects to pay both his debts
" and the dowry, securities on his real property before marriage take
" effect to the prejudice of the dowry."

- ** In some customs, as in Paris and Chaumont, the wife has the choice
" of the dowry prefix or customary ; in some, the stipulation of the former
" entirely abrogates the latter ; in the custom of Paris the parties have
" the power to stipulate for such dowry as seems good to them, without
" being able to augment or diminish it on any occasion whatever ; saving
" the case of second marriages ; in other customs the settled dowry is not
** allowed to exceed the customary one."

" In the custom of Paris, the subject matter (?c* fonds, or substance)
"■ of the dowry belongs to the children, whose right is full and complete
" on the death of their father and mother, no matter which is the
" survivor."

" The female is immediately seized in full right of her dowry on the
*' death of her husband ; and takes, forthwith, rents of real property or
" interest of monies ; when it consists of the use or profit of personal pro-
•' ]ierty {usnfruit des immeubles), the dowpger must appear before the
" Clerk of the Court and charge and hypothecate all her own goods
'* as security for what she so enjoys ; and, if she marries again, she must
" ffive good and sufficient securitv*"

Such is a summary of what itself is but a short summary, but suffi-
cient to show the principle on which the rights of widows are based. But
this is only a small part of the rights of wives and their relatives ; rights,
generally speaking, unknown in English law, excepting very restrictedly
as respects real property : though often created, as respects personal, by
conveyances to third parties in trust, for separate use and enjoyment;,
with or without power of disposition or limitation of succession ; and the
administration of which, called Equity, is in reality based on the same
principles as the Statutory law of the civilians. {Note.)

The Dower, therefore, must not be confounded, though theoretically
it always, and practically it usually, issues from it, with the dot or portion,
which in the English law the married woman, as a general principle, when
the common right is not abridged, is said to " bring" to her husband ; but
which, in the French law. she merely contributes to the common stock
over which the mutual rights of both are defined and the succession limited
to the heirs of the contributor respectively. This is a most intricate sub-
ject and one not at all neccssarv to g:o into, as it but remotely relates

the object of this esaay. It is sufficient to observe that the French and
Roman principle of dotation is that the marriage contract is a society,
community, or partnership, which is dissolved by death, and, in mercantile
phrase, the estate then wound up and divided ; and the portion of the
capital stock which the wife brought in given to her children or returned
to her heirs, to those who gave, or to their representatives ; the husband
being merely, for the term of their joint lives, the master or head of the
firm.

The law, however different from English notions of the marriage ob-
ligations is simple enough in itself, when society is rude and agricultural,
and when the property real and personal is situate, the marriage solemn-
ised, and the parties domiciled, within the same jurisdiction. But when,
as in the Provinces of old France, the customs which modified its inter-
pretation, and the independent courts which administered it, differed very
much, questions of the greatest subtlety arose in its construction, and the
same in different kingdoms as between their subjects and those of others.
And in modern times, with the extension of intercourse and the diffusion
and increased amount of personal property, great difficulties have perplexed
the courts, particularly in the United States, where both the French, the
Spanish, and the Dutch versions of the Civil Law conflict with the Eng-
lish ; in the Colonics of Great Britain, conquered from foreigners ; and
in Great Britain herself, in respect of marriages contracted by her own
subjects in foreign countries, by parties perfectly ignorant of the obliga-
tions they entered into by the law of the land, and of the questions
depending on that of domicil. It is, therefore, the highest act of folly,
which many persons have committed here and elsewhere, to contract mar-
riage under such circumstances without a contract relating to any extant
or future possible interests, which both parties are sure they fully under-
stand, and of the force of which they are satisfied. For, however parties
may agree between themselves, however ample and deserved their mutual
confidence, circumstances of death, removal, or acquisition, may arise,
which neither could foresee, which may disturb their mutual relation,
draw on the interference of third parties, or lead to litigation in which the
whole succession may be swallowed up.

I have now completed what I have to say on the origin of the allodial
tenures, on their relation to the feudal tenures, and on the general relation
of the laws of England and seigniorial Canada to the distribution of pro-
perty ; and particularly of the two tenures, scarcely differing from each
ether, which, in England are becoming the most frequent, and into which
ii is desired to convert those of Canada — Freehold of demesne and of in-
heritfince (called here Free and Common Soccage) and Frano aim, noble or
roturier. But I must again observe that these are but general principles,
modified in every possible way, and that neither the French nor the Eng-
lish are one \v hit behind each other in ingenuity in defeating the plainest
intentions of the law. {Note.) Still they have moral where they lose legal
force. The custom of primogeniture, for it is scarcely any thing more, is
fully established in England, and when the personal property is not suffi-
cient to provide for the younger sons and the females, it is very rare that

•ii ■

'4'<

the cstato is not cliarged by will or settlement with a capital sum or an an-
nuity in their favour ; and, though the English law, no more than the
French, givea any rights of seniority to females, and equal coparcening
among heiresses was, at least until the beginning of the last century,
quite the common practice, it is quite rare now that an heiress is not
named by will to perpetuate with the family estate the family name, and
the younger sister left in the same relation to her as younger sons are to
the oldest. In Canada, by careful arrangements, made in due time, tho
law of equal partition may in general be defeated ; but, still, the feeling of
the country is in its favour ; and the mode of inheritance which in Franco
prevailed in the great fiefs, and in England prevails with the whole body
of the land owners, would bo considered unnatural and cruel. In Eng-
land it is very easy, by settlement of the realty and segregation and in-
vestment of the personalty, to give a married female quite as large a con-
trol and peculiar enjoyment of her property, as it is in Canada con-
sidered quite natural and just that she should have ; but such is rarely
done except in the case of great heiresses ; and it is usually observed to
be, quite tho contrary of what it is here, destructive of tho peace of
families. It is there an unusual right to which neither the women nor
their offspring are educated ; while, here, primogeniture and the extended
dominion of the husband would be equally liable to abuse with those not
used to either. For it must never be forgotten, both in legislation and
contracts, that whatever is native to the people is, cceteris parihusy the best
for them. Law, with a people not absolutely enslaved, is usually an ex-
pression of its customs, which arise from its moral sentiments.

One circumstance of considerable importance may, however, be noted.
When the plain intention, and the ordinary operation of the law is to bo
defeated by compacts, to which force is given by legal artifice and by fic-
tions, it is principally with the considerable estates that it is done. Tho
process stops when it descends to estates wliich will not bear the charges,
or are owned by persons too ill educated to know how to follow the ex-
ample of the rich and great. Hence, in England, where primogeniture is
the common law, the division of farms stops about the point when further
severance would be unprofitable or prejudicial. In Canada, and in France
now, where partition is the common law, it begins, if I may bo excused
the word, with the most poisonous energy, at the very place where it
ought to stop for the common as well as the private good. But the most
intelligent Canadian, as well as English small proprietors, when they can
accomplish it, sell out and out, either during their life time or by devise
in trust, and then distribute the proceeds as personalty, though tho modes
of doing so are very ditterent under the two codes, and, in England, per-
haps the simpler. In England it is not uncommon, and it is very com-
mon here, for the owner of a small estate, when incapable of labour, to
resign in consideration of an annuity {Note) from one of his sons, with
whom an arrangement is made by which the legal or moral rights of tho
other children are valued and assigned either in rent or partial division.
But the terms of this arrangement very widely differ, the relation between
the value of a farm and the labour of a man being so difterent. The dis-
crepancy between the period within which the average wages of the labour

of a man, will, iu any part of Western Europe, purchase a farm of average
fertility, within reasonable distance of a city and of water communica-
tion, and that within which it can be done in Canada, is enormous ; cer-
tainly not less than ten to one. (Note.) And it is curious to see, how-
ever removed by time and place, the same necessities produce the same
modes of meeting them ; for the ancient custom of " Borough English"
is very common among the Canadians ; the elder sons having swarmed
off from the paternal roof, the youngest is left to jirovide for the wants
of the family, and, in cultivating, to acquire the estate.

I have now discharged, however imperfectly, my task to contrast, as
respects real property, the laws of the country in which I was educated,
with those of that in which I now find myself; and, particularly, to show
the identity of the English freehold with what is here called free and com-
mon soccago or franc aleu. My object was not to discuss those matters
legally, to do which there arc so many persons infinitely better qualified
than I, but to look at them in their moral and historical bearings which
few mere lawyers trouble themselves with, and to dispel some prejudices,
unjustly entertained on both sides, which a very little candid observation
disperses. I am more and more convinced that the backward agriculture
of Lower Canada and the poverty of its inhabitants is not owing in any
very considerable degree to the seigniorial tenure ; and that, though com-
mutation is in some respects desirable, no material improvement can be
effected while the present law of inheritance prevails, or rather while the
custom of the conntry tends to indefinite division, and the accumulation
and skilful application of capital are considered of secondary importance
by a population whose aspirations, like that of the agricultural Irish, but
without their excuses, are limited to deriving a mere existence from the
soil.

It may be from the limited extent of my reading, but though there
have been many books written on its consequences, I know of none which
has fully entered into the causes, of the extraordinary divarication of the
laws of two contiguous nations, both deriving their descent and customs
from the same sources, and differing in the proportions, not the nature, of
their constituent elements. The general reason, however, is I think
obvious. It is clear that, originally, equal partition among male children
was the fundamental or common law of inheritance of all the Teutonic tribes
who held land in allod ; that is, simply by a fixed boundary and by de-
scent. This distinguished them from the frontier tribes described by Csesar,
whose occupation was temporary and precarious and of nomadic nature ;
and from the Celtic tribes, whose occupation was patriarchal and more of
the nature of a community. There can be no doubt that it prevailed with
the Franks and other German nations which crossed the Rhine before the
time of Charlemagne. Blackstone considers it a settled point that it was
the rule in England before the conquest, and even survived to a large ex-
tent for more than a century afterwards. Every reader of history is
aware of the stand made by the men of Kent against the Conqueror, and
the stipulation for the continuance of gavelkind and other ancient Saxon
customs ; an act for which they have been much praised since, but which
Thierry most justly observes was most mischievous and unpatriotic ; for it

;.s

.31)

was their duty to assist in ropeliing the invader and not to separate their
own from the common cause of the country.

It is in the different rohitions that prevailed in the two countries to
Rome, that I think the sohition of the prol)iem must bo sought. When
the groat Emperor took the Holy See under his i)rotection, the obligations
became reciprocal and the moral and religious intluence of the Papacy was
added to that of his arms. Hence, wherever the Carlovingian sway ex-
tended, the road was paved for the Roman jurisprudence, and the defeat
of Varus was in that respect redeemed. It was engrafted on the local
customs ; in some provinces introduced bodily ; and, in all, modifying
what it found ; and, before the feudal system could well be said to exist,
equal partition among males easily slid into equal partition among the
children of both sexes, with the exception of those great dignities Avhich
were originally sovereign or nearly so.

But in England the true and ancient German hatred of the power
and influence of Rome always prevailed, and, both religiously and politi-
cally, becanjo a national sentiment. The insular chiirches, Anglo-Saxon,
Welsh, Irish, and Culdeo always asserted their liberties, and were, one by
one, with ditficulty subdued even into spiritual uniformity. The conquest
of England by the Normans was quite as nmch a conquest by Rome, whose
spiritual arms aided and sanctified, in the eyes of the then civilized world,
a most atrocious deed. It was followed by persevering attempts to intro-
duce the Roman law ; but the resistance to the legal conquest was more
persevering and successful than to the military. There is no reason to
think that any of the nionarchs had any strong leaning in its favour ; for
they found a law, no way inimical to the royal power, well established,
and existing, almost in the shape of a code or collection of customs, since
the greatest of the Saxon Basilei. The intrusive Barons soon found the
necessity of no longer living as strangers in the land they had conquered,
and of allying themselves with the people ; and finally, at Merton, they
pronounced in the name of the whole nation that memorable negative,
" We will NOT change the laws of England." Thenceforth, the introduc-
tion of the civil and canon law was limited to cases international or purely
ecclesiastical. In Scotland, from the French influence, they prevailed more
extensively.

But a new power was now arising, that of feu(!ality ; and any person
looking into it must see that the fundamental law t/f that system, admitting
of many modifications and exceptions, but still the normal principle, the
idea which pervades it, was that one man, capable of bearing arms, shall, at
the head of the vassals of his fief, follow the banner of his superior lord.
And in the amount of the exception allowed, varying locally, came the
distinction between male and female fiefs, the wardship of infant heirs, the
disposal in marriage of heiresses, and the question, common in early times,
even in the monarchy, for it is by no means clear that according to the
then law, King John was a usurper, whether, if there Avere an adult male
nearly allied to the blood, the minor son could succeed at all ; and, in all
rude states of society the same question exists, for the same reasons.

This principle, in France, was tempered in the matter of marriage

aiid inheritance by the Konir.n law, vvhidi, in tlioso respects absorbed it,
as respected all thefiefs under baronial rank, and all land not of noble tenure
But in England, not having that i)Owerful rival, it became the predominant
principle ; and, by what all men l^egan to feel 'vas a iieces-sity of tlie time,
gradually swallowed up the other or native one. The great nobles seized
it voluntarily, they established it among their cemives and in the lesser
and dependant fiefs ; gradually, the aleudcs or original freeholders fell into
a. custom which obviously strengthened any class Avhlch adopted it, and
which was often forced on them ; and the free spirit of Engli.shmen
scarcely allowing and soon extingishing the distinction between nohle and
roturier, the same hiAv of inheritance became uniform with all rwil estate,
nnd is as deeply implanted in English, and also in Scotch, Welsh, and
Irish feeling, as is that of equal partition in the feelings of the people of
France who have been gradually strengthening the other principle and
making its application compulsory.

That to force either the one law or the other upon a people undesir-
ous of it, and disliking it, would be a gross injustice, no one I think will
doubt. Both the edict of the French King, (see Appendix A), and the
Act of Elizabeth, though well meant, were arbitrary modes of ])roceeding,
•which would not be tolerated in our day. I would myself neither go so
far as the French colonial law went, nor so far as Masores (see Appendix
A), recommended. I would give by law all possible latitude of disposition
by devise, to the party in possession, that is, to the owner of the first
estate of inheritance, and let its use be purely vohmtary.

In fact, the Act 41, Geo. Ill, does almost all that can be done by
legislation without too violent an interference with the feelings of the
people. That Act allows either husband or wife to devise whatever each
may possess to one or more of their children, or to uny other person what-
ever ; in trust, to be sold, or for any other purpose ; but neither can be-
queath more than his or her share of the community, or prejudice the
" customary or settled dower of the children;" provisions just enough,
especially taken in conjunction with the Ordinance 4 Vic. cap. 30, which
allows married women to bar dower by simple deed. But, so long as
community and division continue the principles, and the custom, founde<.l
on opinion of their justice, prevails of carrying them into practice, the
permission to devise will, in the very quarters where it is most desirable
it should be acted on, be something like the permission to commute in
the Seigniory of Two Mountains.

The Canadians, who are not a migratory or a reading race, have
very little idea, how very inferior their condition is to what it might be ;
and, forming their opinion from the emigrant population of Europe which
arrives on their shores, they underrate the condition of the rural classes at
home. They forget that these are not average specimens of the whole,
and tl^.at a very large population are Irish, the most miserable peasantry
in the world, and not proprietors like themselves. A Canadian habitant
does not enjoy more physical comforts than the generality of mechanics,
either here or in England, and in all intellectual enjoyments he is im-
measurably behind them. A Canadian habitant is usually quite as depen-
dant on the notary and the storokeopor as the Englisli tenant at will is

,-?

on his landlord, and ho has much the loss generous paaty to deal with.
There are not a quarter the instances in England ■ f selling up farmers,
(taking in execution moveable goods for rent), as theiO are here of selling
the farm itself for obligations which ought not to be equal to a year''s
rent. The tenants at will on mov^ orate sized farm" at home are much
better off; most of them have as much capital on their farms as would buy
the concession of a habitant. And a man who possesses in his own right
sixty to one hundred and twenty acres of arable land, is usually quite
opulent.

I attribute this difference principally to the presence of an intelligent
and enterprising gentry, who raise the standard of the whole landlord
class, and to the law and custom of primogeniture, which arrest the divi-
sion of farms wher division is unproiitable, whiVh leave the people in a
condition to give their children a good educition, and teach the children
that they must make use of that, must trust to their own energies and
skill, and, not to the divit'on of the paternal fields. Such farms in Eng-
land frequently change han«ls, but with nothing like the freoj.f'ncy that cen-
s^ive do }iere. The very tenants at will are usually more permanent on the
estates, the great ones in particular, than the Cana lian censitaires. As
for the small proprietors, they rever think of such a thing as cutting up u.
farm and erecting a wooden hut in every field, for their descendants to
live in. They would think such a process mad and degrjiding. The
stern i>ipulse of family pride, a noble sentiment when under due govern-
ment, torbids a man to leave to leave his race in a worse position than ho
found it ; imd it is always considered a very great misfortune, or else a
very grent crime, for any man, from the peer to the least freeholder, not to
leave his son in pospcsaion of his own inheritance, and such rarely hap-
pens without the accumulated mismanagement of two or three generations.
It is then that great estates are broken up, and that small ones are added
to great ones by the more thrifty of the class ; and, from their always being
a numerous I ">dy of tenant farmers with intelligence and capital, land is
considered the safest of investments, and there is such competition for it
that it can rarely be bought to pay the purchaser more than three and a
half per cent.

As I have said before, the way that persons owning farms of the size
and descriptions of the censives here do, is this. If the family be large
and the burthens heavy, the proprietor sells, and, usually, with the
balance, after paying the mortgage, takes a farm to rent ; or else, he be-
queaths in trust, to be sold after his dijcease. But, more often, he leaves
it ^0 the eldest son, charged with portions to the younger children. These
the son usually borrows money on mortgage to pay off ; and, unless lie is
particularly fortunate, or marries a wife whose portion pays off the incum-
brances, in return for which she receives a settlement on iierself and
children, or is enriched by a legacy — no unusual thing when an ind strious
family branches off, all retaii.ing proud and agreeable recollections of
their ancient home, — unless soiiio of these favourable accidents happen,
he, in his turn, when he has a family to i)rovide for, has to sell ; and then
nothing is more common than for some younger son, who has gone out
into the world and boon prosperous, or his descendant, to rctvirn and pur-

it
a

chase the estate, and re-establish his I'amily in greater opulence. The
great majority of the young men in the counting-houses and warehouses,
and even in respectable retail stores of London, Liverpool, Manchester,
and Glasgow, and commanding merchant ships, are the younger sons of
the freeholders and smaller gc. vy ; and of those there is not a year but
some one returns to his native country with a fortune.

I know that it is a groat evil, particularly in countries where the
feudal system prevails in a rude and oppressive form, to have all the land
monopolized by great proprietors. But the reverse of wrong is not al-
ways right ; and I think it almost as great an Q\i\ to have no landed gen-
try at all, and nothing whatever to stimulate the people by example, and
elevate their views above the dead level of their own condition. Chan-
tillys and Chatsworths would be misplaced here ; but I do not think it is
at all a matter of congratulation, or of benefit to any body, that one may
travel twenty miles, in any direction, among the Canadian concessions,
without seeing what in England would be called a " gentleman's house,'*
that is, a house in which a person could live comfortably who was spending
five hundred pounds a year. " * bold peasantry" may be as eifectually
destroyed by reducing them to ^.i^aperism and depriving them of all the
benefits of the example and instruction of a better class as by making them
tenant farmers ; and " addiiigacre to acre" is not more mischievous than the
indefini'e division of acres, without reference to the productiveness of the
land, ana the entire torpor of the ^acuities of its inhabitants.

While, therefore, I venture to assure my countrymen of British birth
or descent, that franc aleu roturier is a very good tenure, a freehold of
the best k-' d, and that I think the French mode of burtheaing and conveying
land is better and simpler than ours, I exhort them, after careful obser-
vation of the working of the principle of partition in this country, to
adhere rigidly to their own laws and customs as relates to dower and
inheritance, and to resist every attempt, should any be made, to invade
them.

The object of the preceding pages was, originally, merely to explain
the nature of the tenure of Freehold or Franc Aleu, for the information of
the British inha^ijtarits of the Province ; but, as it proceeded, it branched
out into a more extended consideration of the relations between two sys-
tems of real property now in close contact, but materially differing. Tc
avoid the charge of presumption, I must again repeat, that they are for
popular, not for professional use.

In some instances, the Notes referred to in the text, particularly those
on the seigniorial claims, will not be found, having been incorporated in
the appendixes ; in others, the references themselves will not bo found in
the text. But in all instances the notes Avill be referred to the proper
page and line.

It will be a sufficient apology lor those irregularities and for a great
want of system, in the eye of any one who has ever written for the presS;,
that the work was printed oil' in sheets of eight pages, a^ composed, so
that no correction or re-urranrjomcnt vfixt practicable.

h.- '

k
If

??«!■

-I .Tri?»""7«Pi";*.'_.I?^^'-'

APPENDIX A.

I um indebted to Mr. E. L. Montizambert and Mr. W. B. Hartley,
for reference to, and the opportunity of consulting several works, throwing
much light on the history of the Colony, and, in particular-on the subjects
to which this paper relates.

The edicts and ordinances of the French monarchs, almost down to
the era of the conquest, are full of enactments for the concession of lands
to all who would settle on them ; and, that there was a well-known and
customary rent {cens) seems perfectly clear from the fact that it is not
defined.

In 1666, his Majesty, in camp at Valenciennes, sends power to hi»
Governor De Frontenac and his Intendant Duclitmeau, to grant conces-
sions to all comers ; but they were to be void if not cultivated within six
years of the date of the grant. The concessions were to bo made, " Ja
proche en pi'oche'^ as fast as cultivated — a very wise provision. It is clear,
these concessions were intended to be in franc aim, or, as wo would say,
in fee simple.

In 1j79, his Majesty, with the advice of his Council of State,' ex-
presses his opinion that the concessions already made had been far too
extensive, and disproportionate to the number of men and cattle in the
colony, and that the ungrauted lands were inferior in quality and remote
from the river. He therefore enacts, that every year one twentieth por-
tion of such lands as shall be uncultivated, shall be resumed, and granted
to some one who will cultivate them.

In 1711, the King is informed, that the lands conceded to the
*' habitants" (the earliest date at which I have met with the word) are not
reclaimed ; but that they content themselves with cutting down a few
trees, believing that by this and by the concessions made tj them by those
>,'no had grants in seigneury, (between this and the preceding arret nearly
all the then explored portion of the province had been so granted) they
entered into full property ; this, his Majesty says, is an abuse, and quite
contrary to his intentions ; and he enacts that, if not inhabited and culti-
vated (tenirfcu et lieu et mettre en valour) and certified to be so, all such
lands shall be reunited to the demesne of the seigniories.

In 1732, his Majesty finds that the seigneurs are as bad as the censi-
taires. And ho enacts that the lands of all seigneurs which within two
years are not cultivated and settled, shall be reunited to the royal domain,
and he strictly forbids the seigneurs and all other proprietors to sell any
uncleared land, or to make a traflic in land at all.

This arret is very important from the inferences it draws, as well as
from its enactory nature. It rrjitcs the law of the Province to bo that
the Seigneurs arc bound to concede to the habitants who demand it.

But,

some

without purchase, and a titre de redeeanc<3, that is, en roture at the cus-
tomary reditus or rent ; and, if they refuse, the government will grant,
on petition, " for the same droits as are imposed on the other conceded
lands ;" the which droit to go to the crown, and not to the recusant
seigneur.

It seems clear, therefore, that there was a custom so well known
as to admit of no dispute, and to preclude the necessity of definition. The
time when it existed is not so remote as to prevent its being ascertained.
It must have been based upon the grants made by M. M. de Frontenac
and Duchesneau, in virtue of the plenary power given them, and on
others made directly from the crown ; and all these were based on the cus-
tom of Paris, which varied somewhat in different manors ; and so it did
here, in ths three great judicial divisicnj of Quebec, Three Rivers,
and Montreal ; the reservation bearing some proportion to the value of the
land ; but still, there was a general custom, varying within some small
limits, in each district, and perhaps again within er.ch seigniory. Such is
the whole theory of tenures in feudality both in England and France, or
rath«r was in the latter.

Vut the same time the government gave its careful attention to
i;i8 flowing evil of subdivision of inheritances, and It attempted to do
what in England had been attempted in the reign of Elizabeth ; not to
improve the law, but, by arbitrary enactment, to produce exceptional
operations. The Ordinance of 1745 says, that the King is informed that
his Colony has not made the progress it ought, that it does not produce
provisions enough to support its inhabitants, and that the principal cause
of this is that the habitants confine themselves to dividing and cultivating
their portions of the paternal estates instead of going out and clearing
better farms. His Majesty, therefore, with the exception of garden
grounds near the town, expressly forbids the erection, on pain of its des-
truction, and a fine of one hundred livres, of any dwelling-house on any
plot of land of less dimensions than one and a half arpents in front, by
thirty to forty iu depth. This, in effect, means that there shall be no
division o^ . . jir,cession, except lineally, and that but into moieties.
But, hovver "ib'^ly intended, like all arbitrary enactments it was to
some extent 6 'c" d. families agreeing to live in the same house, and
running their divisions with still further misery and discomfort.

Another matter, not exactly connected with the tenure of transmis-
sion of land, but amusing and indicative of the minute care the govern-
ments of those times took of their Colomal possessions, is in the edicts
relative to marriages. In 1670, the King acknowledged a very favourable
report of the state of the population of the Province ; and, whet-^or in
pity for the burthen of overstocked parents, or as an encouragement to per-
severance . does not distinctly appear, he graciously grants to every colon-
ist who ^ - ,3 t'in childi'en born in lawful marriage, " not priests or religious,
mate or fct;>vie,' a pension of three hundred livres a ye.^r ; and to every
one who has tioelve children, a pension of four hundred livres. The In-
tendant general is directed to keep a Register, and also to present, on the
part of his Majesty, to every young man over twenty years of age and
every girl over sixteen, twenty livres on the wedding day. And, what is

f (

more, his Majesty specially directs that in the construction of parishes and
boroughs, the parochial and municipal honours and precedence in the
church shall be given, in preference, to those who have most children.

This edict bears as countersign the illustrious name of Colbert, and,
sixty-three years afterwards, the paternal care of the Monarch was again
indicated. His Majesty has heard, the arret 3ays, that the roads in Canada
•were often very bad ; that the notaries were few in number and au peu
de capadte ; and, therefore, he graciously extends the time for recording
marriage contracts, in order to give them eftect, and facilitates their execu-
tion, and allows the record to be good after the marriage as well as before;
sagely observing, that the consequence of delay possibly might be that the
parties might alter their minds or do worse — *' changer de resolution, om
tovnber dans des desordres."

That the edicts of the French Monarch for the cultivation and against
the excessive subdivision of laud were not considered by the more intelli-
gent colonists a dead-letter or u .'^'od for, is clear from the absti'act of
the Loia de Police drawn up in 11 /. . »• the guidance of Lord Dorches-
ter, "by a select committee of Cana,* .n gentlemen, well skilled in the
laws of France and of the Province." They start, at once, with the reci-
tation of them as I have given them above, and express a strong opinion
that the scarcity and bad cultivation which then prevailed, "were princi-
pally owing to the Jieglect of the arret of 1745. Houses, they said, were
daily built in defiance of it ; though the preceding government had not
hesitated to demolish all that were so built.

But it must have been obvious to any reflecting man that the time
had passed for any such arbitrary proceedings, and that- in particular,
what the habitants had endured Jrom a native, they would regard as a
grievous oppression from a foreign government ; the more especially as it
was generally believed and the belief extensively acted on, that, from the
operation of the English laws, the seigneurs took in absolute right, and
could impose on new grants any conditions they pleased. An assumption
entirely false, even though the English law were introduced ; the seigniorial
tenure being much more common in England than the allodial, and vast
tracts of land being held by the lords under the name of " common" as I
have mentioned before, not exclusively for their own use, but by a kind of
fiduciary obligation rather different from that by which the seigneurs
held the unconceded lands here, but similar in principle.

To this, among other subjects, one of the very few men of a high
order of intellect, who have ever devoted much attention to the afiairs of
Canada, addressed himself. Mr. Francis Maseres, then Attorney-General
of the Province, and who died Avithin the memory of most people living,
is one of whom it is to be regretted so few memorials remain. He was a
French Protestant, one of a class who, from an education in the civil law,
have furnished more than a proportionate share of the eminence of ♦the
English bar in those numerous and important departments of English
Jurisprudence in which the civil law prevails. He subsequently found a
wider field than Canada for the exercise of his abilities, and became a
Baron of the English Exchequer. There are two things particularly
honourable on record of him. Though it was his duty officially to prose-

cute the suit which the merchants of Quebec successfully resisted, he gave
his opinion, in opposition to that of Dunning and Wilmot, against the pre-
tension set up by the Crown, to tax this Colony without authority of Par-
liament, under the pretext of the fiscal rights of the French King having
accrued to the British Crown by virtue of conquest. The other was, that,
having retired on his pension, and the pensions of all the judges having
been raised, he refused to receive any augmentation, on the ground that
the nation had already fulfilled its contract with him.

The papers of Maseres ought to be read by every person who wishes
to gain anything like an accurate idea of the transition of the Colony from
French to British allegiance, and to trace the origin of those conflicts of
juri prudence which prevail to our own day and, which, to all appearance,
will always prevail. His principal object, much too complicated for me
to enter into in detail, is to ascertain what portion of each code was ac-
tually in force, and how they might be combined.

At page 21 is a paragraph, which, written at the time, with full know-
ledge of the facts, throws great light on the question of cens and partition.

He observes that the Jesuits had been leasing for twenty-one, while,
by the French law they could only lease for nine years. That the seig-
neurs, supposing that the restraints of the custr i of Paris had ceased,
" were making grants of uncleared land for higher quit-rents than they
were allowed to take in the time of the French government, without
regard to a rule or custom, that was in force at the time of the conquest, that
restrains them in this particular.''* Further, that the " freeholders, or
peasants" were doing the same thing in disregarding the French law that
no house should be built on less than sixty arpents of land, and that, on
the death of the owner and partition, if the share of each son (child ?)
came to less than sixty arpents, the whole was to be sold, and its proceeds
divided. (Note.) I am inclined to think this law is not very accurately
stated ; but the fact which he notes is, that the children of the habitants,
instead of dispersing (which it appears that the lords were throwing a new
impediment in the way of their doing), were dividing lands into small
patches and building miserable h'lts " to the great increase of idleness,
drunkenness and beggary," on the plea that by tlie English law, a man
might build his house whore he pleased, and of any size that he liked.

In many other important particulars, the opinions of this eminent per-
son are worthy of great attention. He thinks that unanimity should not
bft required from juries, as it only leads, (as we know it does in our own
day) to perjury ; natural diflerence of opinion being heightened by national
and religious prejudices. He would, in Jury trials, abolish enquetes, and
take all evidence by examination in open court ; except in special cases
which he assigns. He would limit the powers of juries to give general
verdicts, and would shape distinct issues ; a matter as desirable, now, as
then, for the ends of justice.

He concludes his report by deprecating any violent intrusion of the
English law in respect of lands already held by the French tenures. He
thinks that, in future, a change might be made in the laws of dower and
inheritance, evidently contemplating, like Lord Dui'ham, the future Angli-
fication of the country ; but in the mean time, be advises the revival of
the French laws of landed proporty and distribution.

In another tract, No. XXX, with reference to the report of the
Canadian lawyers to Lord Dorchester, cited above, he dwells strongly on
the inconvenience of minute sub-division and proposes his own law of in-
heritance. Briefly, it is this : —

If only one lot be possessed by the intestate ; — Primogeniture of son,
and, failing sons, primogeniture of daughter, to the exclusion of the
younger children of either sex.

If more lots than one ; — Each son in order of seniority, and then each
daughter, to select one lot ; and, if not one lot for each, the younger to
take no interests.

It is unnecessary to follow this plan into its details, which, however,
it may be observed, modifies that unaccountable article of the custom of
Paris which directs the division of estates roturier in the case of grand-
children, the parents being deceased, in diflferent proportion than in the
division, in like case, of estates enjief. He recommends the English plan
of succeeding by right of representation, par souehes.

By far the simplest plan would appear to be to sell, and divide the
proceeds among the children ; but the objection is that, except in
towns, forcing sales would usually be absolute ruin to the property ; so
that the subject is beset with difficulties. A very excellent plan now very
generally adopted, when practicable, which it very seldom is except when
artificial value is given to lands by immediate proximity to towns, is to
sell at deferred payments, each payment to fall due as a child becomes of
ago.

The next eminent persons to whom the aflfairs and particularly the
lar' of Canada, were submitted, were the English Advocate, Attorney, and
Solicitor General, — Marriott, Yorke, and De Grey. The first named was
a civilian ; for, though the common and statutory law is the principal
study of English lawyers, and the principal feature of the system of the
nation, there are many jurisdictions, in some of which the civil law alto-
ji' 'her prevails, and in others of which it is more or less mixed ; and there
are persons always to be found in England as eminently learned in the
civil law, and the law of nations, as any in the world.

Marriott appears to have had before him for reference the whole of
M& seres' reports and collections, and, indeed, every kind of information that
could possibly be obtained relative to the laws, usages, and condition o^
the colony ; and he has analysed the whole in a veiy masterly manner,
directing, however, his attention principally to the nature of the ecclesias-
tical possessions and jurisdictions ; and it appears to have been under his
advice that the government came to the conclusion that there were no
persons resident in the colony who had any legal or moral title to the
estates of the Jesuits. In reading his book, one must make allowance for
the times in which he lived ; otherwise, his horror and dread of the Pope
and the King of France would seem almost as ludicrous as the precautions
taken in the century preceding to protect a house from witchcraft. He
professes that the task imposed in him is one which might tax the intellects
of Plato or Montesquieu. But, starting in the abstract with a stock of
pure philosophic theism, he descends, in the concrete, to contemplate as
the solution of his difficulties, one of the most unlikely things in ihe world :

his

that, in the course of half a century from that day *' a Bishop of Quebec
and his co-adjutor, by the influence of due (?) means of conviction, may
happen to feel the propriety of conforming to the Church of England ; a
consummation," he candidly adds, " devoutly to be wished for, but little
to be expected."

In all other matters, Marriott appears to have been greatly before his
age, and his report may yet be read with much pleasure and profit, and no
person could possibly have set to work with a more obviously sincere desire
to reform a system which was bad and despotic when the English came here,
and, at the same time, to preserve all that was good, and congenial to the
feelings of the people ; and, while Maseres' predilections all ran in favour
of the English, Marriott's are equally in favour of the Roman law.

In the administration of cheap and equitable justice ; in freedom of
commerce ; in arrest on mesne process ; in prison discipline ; in the laws of
debtor and creditor ; in the equality of persons in the eye of the law ; in
the construction of pleadings by determinate issues ; in the diminution of
the number of offences to be punished capitally — " the laws of England",
he observes " being dipt in blood, the advantages given to criminals by
the lenity of the process and the power of pardon in the crown, are the
only balance in the peculiar severity which is manifest in the inequality of
crimes and punishments ; the English laws, in their institution seem to
have been made for the terror of a daring people, the execution of them
for a generous and compassionate one'' — a noble apothegnr ; in the aboli-
tion of the practice of enquete, wherein, he says " equivocation and perjury
must reign in full force ;" in conveyancing, charging, and devising (p. 94)
in which his principle is the same as that adopted and generally acted on
since, and what Mr. Bowen's act went to confirm ; in the disposition of
lands with reference to their subdivision, and a modified primogeniture ; —
in all these, his views do the highest credit to his sagacity ; in many of
them, he was before his own time, and in some is yet before ours.

Marriott's details are too extensive for me to follow them here. Some
of them are particularly interesting, as bearing on my present subject.
" Nothing" he says, and he cites a recent French authority in support of
the opinion " reduces the families of the ancient French seigneurs to
misery more than the subdivision of their lands by their own law ; a law
which, though it appears at first to breathe more the spirit of democracy
than of monarchy, yet, it is in fact calculated for a military government ;
because nobles so reduced can and will only live by the sword." He
quotes at length the opinion of Raynal, whose notions were certainly suf-
ficently democratical, that the indefinite subdivision of inheritances was
the r lin of th*^ people and of the colony.

it must be observed, that, m he time of Maseres and ]\Iarriott, and
even down to that of Lord Durham, inclusive, the favourite idea of persons
legislating for Canada was, not with violence, but peaceably, to obliterate
the distinction of races, and make it a homogeneous and British province.
But, I think, every one now must be convinced that, whether that object
be desirable or not, which it is not my purpose to discuss, if it be ever
accomplished it will be by-intrusive and political, not by social and legis-
lative modes. But, still, much might have been done earlier and bettor,

-- ^.

) h

111

for harmonising the adtuinistration of the laws, and not leaving so many
questions to be matters of doubt and of legislation now. The commercial
law is nearly the same all over the world, and is, in fact, the civil law, the
law of reason and natural equity ; the English criminal law the Canadians
have willingly acceptei ; they have accepted also the trial by jury, but have
made a monstrous union between it and the civil process oienquete, similar
to interrogatories in a court of equity, good in their way, but not good for
this purpose ; the law of the division of personal property is Marriott
remarks, differs very little from that of England ; the tenures of land
were originally, and are yet fundamentally, the same in both countries ; it
is only in the distribution of real estate and in the nature and operation of
the marriage contract that any serious discrepancy occurs. But these are
the two things which most eminently aflfect the possession of land and the
character of the people. And that no well considered attempts have been
made to harmonise them, that the law of subdivision has retrograded to
what it was more than a century ago, when the old government endea-
voured to amend it, is, perhaps, l'"*gely owing to a circumstance noted by
Mr. Bibaud, {Histoire du Canadaj Vol. 2, P. 1), that after the conquest,
nearly all the oflScers of the metropolitan government, the administrators
of justice, and the profession of the law, retired to France. In doing so,
they were doubtless influenced by high and patriotic motives, which Eng-
lishmen would have felt in the like case. But it cannot be wondered at,
that, when an ignorant population was left devoid of its natural instruc-
tors, and foreigners, perhaps very unlearned in any law, placed unassisted
at its guidance, confusion of titles and inextricable evil should result.

APPENDIX B.

In the year 1843, Messrs. Buchanan, Taschereau, and Smith, Com-
missioners for the purpose of enquiring into the state of the laws and
other circumstances connected with the Seigniorial Tenure in the Colony,
made a Report to the Governor, which embodies almost every thing that
could be known on the subject, and is valuable, not merely for containing
the opinions of gentlemen eminent in the legal profession, hut for the
mass of information which it contains. I believe this report has not been
printed in a popular form ; and, as the Journals of Parliament are not
accessible to every body, it is not so well known as it ought to be. In
consequence, besides the general references I have made, I shall take some
further notice of its tenor in this place.

The only instance which had come to their knowledge of a specifica-
tion of the rate of cens et rentes in the original grant was, in that of the
Seigniory of Two Mountains " namely, twenty sols and a capon for each
arpent in breadth, by forty in depth and six deniers." That would
make the rent of a concession of eighty acres, to be two fowls and one
shilling and eight pence half-penny of modern currency.

In some instances, the grants require that the concessions shall be at
the " accustomed" rates.

They consider that all these grants involved a trust.

The Bamlite de Moulin is not incidental to the custom of Paris and
was established here by Arret of 1686. But it was only exercised with
respect to mills for grinding corn ; and the Commissioners are of opinion
that it was, by common law and arret, restricted to the grinding of corn
consumed witliin the Seigniory itself.

In the Seigniories where the King was the immediate Seignior, the rates were fixed at
one sol, argent tournois, or one halfpenny, for every superficial arpent, and a Capon or
ten pence, at the option of the Seignior, for every arpent in front, and one sol of cens,
equai to about six shillings and four pence half penny, for a frontage of three arpents, by a
depth of thirty arpents, making ninety arpents in superficies.

This rule would appear to have been much followed during the aforesaid period, and
there is ample evidence to shew that, in the District of Quebec particularly, those were the
usual and established terms; for we do not find an instance of excess over this rate, while
in some cases, a lower rent was agreed upon.

It is only after the conquest, as Maseres pointed out before them,
that, in consequence of the ill advised Proclamation of the King of Eng-
land, establishing the English law, with some limitations, both Seigneurs
and censitaires neglected, on the one hand the laws of concession, and, on
the other, those against division ; and though, by the Imperial Act of
1774 the ancient law of real property was restored, the rates progressively
increased to three, six, or eight times the original. The censitaires being
compellable to exhibit their titles and take fresh ones ones periodically,
very like what in English copyholds is called " admitting a tenant" by

t-i

surrender, seigniorial exactions were comparatively easy by inserting
new conditions, a thing impossible in the English law, and among a peo-
ple who could read.

They can find no edict limiting in terms the rate of concession, nor
do they believe any such exists.

They refer to the edict of 1711, of which I have given the substance
in the previous Appendix (p. 40), and are of opinion that it made it im-
perative on the Seigneurs to concede in each Seigneury at the previous
rate prevailing in that Seigniory, whatever the rate was.

That the standard was nearljr uniform throughout the colony, will appear by reference
to the concessions made by the Seigniors up to the promulgation of the Edict, the rate in no
instance exceeding two sols per superficial erpent, and in a great many being only one sol.

In fact, upon the subject of the rate of concession, no dilficulty appears to have existed
in the colony, as a usual and accustomed rate was by universal consent acknowledged to
be settled; but the great grantees of the Crown endeavoured to violate the conditions of
those grants, and, by exacting sums of money for making a concession, to effect sales of
their land, contrary to the known laws of the tenure and the very conditions of the grants
themselves.

This abusive practice of the Seigniors was, in truth, the origin of the Edict of 1711.

In addition to the evidence to be drawn from the Edict, and the very motives of its
promulgation, there is ample evidence to be found in the decisions of the Intendants, both
before and afler the passing of the Edict, that upon the subject of rates no difference of
opinion existed.

Of the execution of the arret of 1711, they cite cases from the records
of the Courts, and consider the arret of 1732, (to which I have also
alluded before), to be a full confirmation of it.

So far from the Estate of the Seignior in the Fief granted to him by the Crown being
absolute, free and unconditional, for the sole purpose of his own profit, it may be said,
that the land was held incumbered with a species of trust, to promote the speedy settlement
of the property : — he was bound to concede upon a mere reditus, or rent, without its being
in his power to extend thp obligation of the censitaire beyond that rent.

In the event of refusal, the power to concede upon the rate imposed in the other con~
cessions ^vas given to the Governor, Lieutenant-Governor and Intendant, and as a penalty
for not conceding, he forfeited his land to the Crown.

To hold that these were not the true conditions upon which lands en censive were re-
quired to bo made, would be to convert an estate subject to a trust into an absolute free-
hold ; to deny that the Seignior was bound to concede at the usual and accustomed rates
established in his Seigniory by the old concessions prior to 6th July 171 1, would be to
frustrate the very ends for which the Edicts and Arrets had been made.

Further confirmation is afforded by an edict of 1743, applying to all
the colonies, showing that " an ordinary and accustomed rent was then
recognised and acted on," and that the edicts and arrets have the effect
of fixing unalterably the reciprocal obligations and rights of Seigneurs
and Censitaires.

The terms of the first article cited above, and the express authority and order given to
the Governor and Intendants to make concessions upon the accustomed and ordinary rent,
in applications made to them founded on a refusal of the Seignior to concede, in our hum-
ble opinion, remove all doubts upon the subject, and characterize the Arret of 1732, as
prohibitory in their operations, and fixing unalterably the reciprocal obligations and rights
of the Seignior and censitaire. We may therefore be permitted to inquire, what law it
was the intention "of the Crown to introduce by the Edict of 1663, with reference to the
tenure of land, (les lois et ordonnances de Notre Roymime et y proceder autant quHl se
pourra en la forme et maniere qui se pratique dans les ressort de noire Cour du Parlement
de Paris) ; was it the common rule under tlie Parliament of Paris in relation to the tenure
(en censive) and tlie usual and ordinary quit-rent, cens, or was it the intention to give un-"
limited power, and to permit the Seignior to impose such charges on the land upon its
alienation; as he thought proper ?

fen to
rent,
hum-
2, as
rights
aw it
,0 the
'i7 se
'.ment
Bnure
e UH"
jii its

Upon tills point, vie think that no reasonable doubt can be entertained.

The rule followed by the Crown in its own censives, and the rates of concession down
to tlie conquest of this country, aftbrd the moat conclusive proof of the intention in this
respect; for whatever latitude may have existed, under the Custom of Paris, in the impo-
sition of Seigniorial charges and dues, beyond those incidental to the tenure under the
common law rule,* it is clear that under the operation of tlie Edict of 1711, and the Arret
of 1732, certain fixed and unalterable rules were established in the colony to regulate the
concession of land, from which the Seignior could not depart.

The fixedness of the rate of rent, as a ruling principle, is manifested in a striking
manner by the remarkable fact, that it required the express authority of the King to enable
the Seigniors of Montreal to raise the established rent under peculiar circumstances.

These rules were manifestly imposed from tlie necessity of the case, for if the juris-
prudence of the Parliament of Paris in this respect hud been allowed to become the law of
the colony, the intention of the Crown in the settlement of the country would have been
altogether frustrated.

In expressing our opinion on this branch of the subject, which we feel to be one of a
delicate nature, and involving interests of great magnitude, we have calmly and dispas-
sionately considered the matter as a purely legal question irrespectively of cases of indivi-
dual hardships, or of what may be deemed vested rights founded on long and uninterrupted
possession, or the obligation of contracts.

The Courts of Justice in later days, swayed, no doubt, by these considerations, have,
for the most part, disallowed the principle of a usual and accustomed rate.

By their judgments they have maintained that the Seignior had the right of conceding
upon such terms and for such rents as he might agree upon with his tenant ; and have re-
fused to give relief to the censituires from such conventional burtliens.

They have departed not only from the strict letter of the law, regulating the tenure
under the French Government, but from the true spirit and policy of that law, and the
conditions of the original grants.

They remark that, with one solitary exception, the decisions of
the Courts of Law have all been in favour of the Seigneur and against
the censitaire, though they (the Commissioners) are of opinion that
the edict of 1711 is " still the law of the land ;" and they are of opinion,
for reasons which they assign, that the power of the Intendant is trans-
ferred to the Court of King's Bench, and that it is bound to administer
the edicts and arrets referred to.

On the whole, the Report of the Commissioners is very strongly
against the working of the system ; that it is in many respects bad in
itself, but that the worst features of it arc due to additions illegally made
to the deeds of concession.

We think that the inhabitants of French origin have no great wish to change the ten-
ure of their lands, if it were to be attended by the introduction of any alteration of the
laws affecting their rights, although extremely desirous to be relieved from Seigniorial bur-
thens. They are anxious to be exonerated from the burthens pressing most heavily on
them, but in few instances do they express a willingness to pay any equivalent.

The great majority of the English population arc in favour of a commutation, and,
in some instances, seem disposed to give a fair indemnity to the Seignior.

iVIodifications of the Seigniorial Tenure requisite to meet views of the majority of the
French Canadian population we think impracticable, without a great stretch of power.

The Seignior must receive a compensation for his rights, and this compensation can
only be given by means cf a commutation.

This is the whole difficulty ; for, until the nature of the rights is
detennined, and on that it is clear that the judgment both of the Commis-

•Scc Hcnrwn dc Panscy— Disfcrlations F^odalca. v. cens. ubi. eupra.

(•a

-M

sioners and of the public generally conflicts with that of the Courts, no com-
mutation can be come to. Leaving this question open, they proceed, at
groat length, to consider the practical means of effecting that object.
They then return to the main point, the settlement of which, some way or
other, the more the matter is looked into, is an indispensable preliminary.

Wc have already given our opinion respecting the legal rale of ccns et rentes ; but wc
arc bound, in justice, to report the arguments used by both Seigniors and censitairc^ upon
this important subject.

On behalf of the Seigniors it is alleged that they have in their favour a long and un-
interrupted possession of the right of conceding at any rate to which the ceiuitaire will
accede, evidenced by contracts, and sanctioned by the decisions uf the courts of law.
That, relying on this usage and the judgments of the courts, they have invested their capi-
tal in the purchase of seigniories, and liave in good faith mortgaged those possessions to
creditors, and secured on them the rights of their wives and children ; that the value of
landed property and its produce, wiien seigniories were first granted, was much lower than
at the present day, and that it would be unjust to force them to grant their lands at the
same rent as was imposed under the PVcnch Government, when money was of greater
value and every thing comparatively cheaper.

On behalf of the censitaires we are told, that, if the standard of rents imposed by
some Seigniors be illegal, they ought not to be compelled to pay them an indemnity for
what is not their due, and for what never can be considered as a vested right ; and that the
Seigniors ought to be satisfied with what they have already received. That, whatever may
be the good faith of those Seigniors or others wlio have invested their capital in tlie pur*
chase of seigniories, or taken mortgages on them, their case is not favourable, and that
tliey stand in the position of a creditor who having secured an hypothequc, or mortgage, on
n property which he supposed to be his debtor's, cannot pretend to a greater right in it
than his debtor had ; and that if the cc7isitaires be compelled to pay the capital, of which
llie rent as stipulated in late concessions is the interest, togpther with an indemnity, for the
other rights of the Seignior, it would have the effect of makuig a commutation almost im-
practicable.

The compromise they suggest is substantially this ;

In seigniories, where a very high rate of cem et rentes is complained
uf, to reduce the lods et rentes.

To divide the seigniories into two classes ; those in which the cens et
rentes do not exceed two-pence an acre, and those in which they do ex-
ceed two-pence.

In the former class, they would commute, at the suggestion of Chief
.Justice Reid, by charging the property at rates varying with its quality.
The Chief Justice suggested a charge of from one-sixteenth to one-tenth of
the value of the farm. But, while the Chief Justice would charge the
liigh rate on the most valuable farms, the Commissioners would reverse
the rule, on the ground, and on others which they fully state, that the
best lands change hands less often. They would make the maximum not
the tenth, but one-twelfth.

In the second class, they would consider that, with payment of a
capital, expressing the rent, whatever it was, all other seigniorial rights
should cease on i'urther payment of a sum, diminishing in amount accord-
ing as the rent had been raised above two-pence.

The Banal Mills they would value specially in every seigniory.

Such are the opinions and proposals of three gentlemen of thorough
acquaintance both with the moral and the legal features of this question.
For my part, I wish the House of Assembly would, for one week, abstain
from loading the table with the rubbish of abortive bills, and direct this

Report, with selections iVom the Appomlixes, which arc very biilivy, anrl
also 8ueh portions of the Reports aiul collections of Mn:iore.s and Marriott
as may bo interesting at the present day, to be translated into French,
printed in both languages, and sold at the mere cost of the paper, as tho
English House of Commons does with the like important documents.

I shall now proceed to notice very briefly, two or three of the matters
alluded to or treated of in the Appendixes to tho Commissioners' Report.

Mr. Dunscomb, noW Commissioner of Customs (App. 80, p. 213,)
says, the quint has the operation of an entail by preventing tho seigniories
being sold, and encouraging their division among the family. It appears,
from the returns of its product to tho Crown, and from tho testimony of
many witnesses, that mutations of the seigniories are much more rare than
of the ceimves. lie thinks that tho ccnsitaires have not been fairly dealt
with by the officers of the Crown, nor by the Judges; and is of opinion,
that it is impossible to legislate until the legal amount of the cens et rentes
is finally decided, and recommends, as it is a public matter, that a caso
should be carried before the Privy Council by appeal, at the public ex-
pence, for settlemant. I think if the matter is to be one of eomproraisc
and not of strict legal right, which alone the Privy Council would deter-
mine, it would also bo desirable to take tho opinions of eminent foreign
civilians in Germany and France, as to the real operation ' '' the grants,
C'^'cts, acts, and decisions in a mass.

Chief Justice Reid thinks, that the commutation ought to be by

Jon of arbitrators, the estimated value of the seigniorial rights con-
verted into a rent constitut or rent charge, and tho censitaire to have the
option of paying in corn at the market price. He puts the caso very
fairly for the seigneurs.

There is a further consideration for the Commissioners in Ihc investigation of the mat'
ters before them. Should they discover tlie Arret or Ordinance of the French King, whicli
limits the <aux of concessions of land en roture in Canada to certain rcdtvances, a material
question will arise, as to the interpretation to be put upon this law. Was it a perpetual
law, or made to remedy a temporary evil only 1 Was it binding in all cases, as well in
Seigniories tlien granted, as in Seigniories to be afterwards granted 1 Was there any and
what penalty attached to the infraction of this law, or was it expressed merely in prohibi-
tive language without penalty ? What remedy can now be applied 1 Or can there be any
remedy unless by legislative enactment 1 There is much in favour cf the Seigniors on this
point. If the value of land and of its produce when Seigniories were granted be consider-
ed — its increasing and increased value since, it was a natural, if not a necessary conse-
quence, that Seigniors should seek to maintain their rank and condition in society, by the
only means in their power — the increase of their rents, while every thing around them was
increasing in value. If Ccnsitaires have agreed for a century past to accept concessions
of land from the Seignior at a higher rate than this law has established, who has now the
right to complain ? In such a case are there any judgments cf the courts of law to be found
where either restitution for what had been paid beyond the legal taux, or for the reduction
of it in future, has been awarded 1 I believe the more modern decisions have held that
where the Censitaire has agreed by his deed to pay a certain rent to his Seignior, he has no
right to claim any exemption from that payment. But this question may be still cpen to dis-
cussion. If in the interpretation of this law, it should be considered to aUach to the Seig-
niors, of the present day, the responsibility of accounting forwhnt they may have received
beyond what is called the taux ordinaire, it would probably be found that in many cases,
tliey would oxve indemnity to the Censitaire, instead of receiving it from him.

According to this doctrine, a succession of usurpations makes a title,
which, perhaps, it may; and that is tho question — whether the original

*. /■

III

grant to the seigneur or his subsequent grant to the cem^taire makes the
title. But I can attach no importance to the arguiricsnt, that the dimin-
ished value of money makes the larger sum necessary to keep up the rank
of the seigneur. When money is made the standard of value, the contract-
ing parties take it subject to all fluctuations, and the contrary would put
an end to all contracts. If eve? there was a ease, where the equity waa
witii the censitairc, it was when, by the visitation of Providence, the most
of the land of the Lower Province no longer bore wheat. The seigneurs,
who had wheat rents, insisted on the stipulated portion, though the land
no longer produced the grain. It was their legal right, because the
quantity was fixed, and a corn rent is not in the nature of tithe, the exis-
tence and amount of which is dependant on the existence and amount of the
crop. But it was a cruel hardship for the farmer to have to go and buy with
money what his land did not yield, or to have thi land seized and sold.
I can roadily believe what one witness says, that the great discontent this
occasioaed, was a principal cause of the troubles of 1837-8.

Mr. Fortin, of Three Rivers, estimates the lods et ventes^^i one-sixth
the cens et rentes. Another witness, speaking of a diifevent seigniory, esti-
mates them at double the cens et rentes. This shows the inapplicability of
any general rule.

No. 102 is a most luminous Report by the Attorney General
(Maseres?) to Lord Dorchester. Had that been earlier acted on, we
should never have heard of the present dispute. He is " clearly of opin-
ion" that the seigneurs have no right to exact any more than the customary
reditus. But he had a doubt whether the petitioners had, even then, any
legal mode of redress. If there was, it was in the Common Pleas.

The grant to the Marquis de Beauharnois, in 1735, of an augmenta-
tion of the Seigniory of Two Mountains, is'rather remarkable. The con-
cessions are to be at the cens et rentes " customary in the neighbouring
seigniories, regard being had to the quality and situation of the lands."
I think that, according to the vsual construction of grants, this means they
might be less, but not more.

I now c )me to a number of cases of which the Report contains the
pleadings and adjudications, and it is important that their nature should
be known, at least that of the more remarkable of them.

By a decision of 1745, relating to the seigniory of Isle Bouchard,
the plaintiff claiming twenty of our pence as the value of two days corvee,
the court adjudged three livres ; and the defendant, having taken and
used the plaintift'*s net in fisliing, to return it, and to pay for its use one-
eleventh of the fish he had cauf:'ht with it.

In 1780,ic is adjudged that in Terrebonne, La Valtrie and Masccuche,
*' acco ding to the usage and custom followed in the country," the rent on
concess on of eighty arpents is a penny the superficial acre, and two-penc^
half-penny oi cens for the whole lot. For simplicity's sake I take the sol
at one halfpenny currency.

In 1782, the same is adjudged ^9, of " ancient custom." But it must
be observed that, at that time, residence was by law and is declared, in
one at least of the those judgments, to be indispensable ; and this is a set
off in favour of the seigneurs, who no longer insist on it, nor on the clear-

ance of the land by the censitaire ; and if the law is now wliat it was then,
it applies to both, and it may be said, not without colour of fact, that
leave of non-residence and to divide at will is equivalent to the increased
reditus. This is important in the general equity of the matter, if it may
be presumed that the new titles were the results of an actual or implied
compromise, the seigneur, in consideration of the increased money pay-
ment, abandoning useless and vexatiousVights. On the contrary, I think
it r^iay much be questioned whether the reservation of the mines and
minerals by the seigneur is legal.

In 1826, the Seigneur of Fossambault and Gaudarville demands that
his censitaire shall set forth his title and descriptionj state the amount of
cetis et rentes, and pay them. The cemitaii e pleads that, when he bought,
no cens was stipulated in the deed ; that he had never refused to pay the
cens of one halfpenny an arpent (acre, nearly), the rate at which a great
number of lands in the seigniory were conceded, and that the seigneur
was bound to concede at the ordinary rate. The court decrees that the
defendant shall set forth his title with particulars, and pay at the rate of
fourpence tor each superficial arpent.

In 1818 and 1821, in the Seigniory of Argenteuil, the Seigneur
demands lods et ventes for two hundred acres.

The defendant pleads that in 1796 the party from whom J^^ derived
purchased the lands of the preceding Seigneur for the sum of {'^1600 duly
paid, and a ''quit rent'^ of one halfpenny an arpent on forty arpents of it,
the Seigneur renouncing lods et ventes and all other seigniorial rights.

Plaintiff pleads that the sale was null and void, and that the then
Seigneur could not by any act or deed divest the future Seigneur of any
seigniorial right, or for any sum of money sell unreclaimed land. That
he, plaintiff, bought ^he Seigniory at Sheriff's sale, and with it all its
rights.

The court decrees that the defendant shall pay the cens, at the rate
of three bushels of wheat and five shillings in money for every ninety
superficial arpents, and pay a fine of two pence halfpenny for not exhibit-
ing his titles t& his seigneur.

This, of course, is a decree for the plaintiff on both the points — that
the lands were not taken out of cens, and that the cens was the recent,
not the ancient one. The judgment being appealed, the Court of Aj^peals
confirmed it, so far as related to the land being en cemive o^id the rente
claimed ; but " further considers and adjudges" that the aimual " quit-
rent''^ of one halfpenny was and is by law cens, and a recognition that the
land was held en roture, and adjudges that it be paid over and above the
ordinary cens et rentes of the Seigniory.

In 1828, Seigniory of St. James, plaintiff has verbally, in 1819, with
promise to give a good title, induced defendants to settle and improve,
tenViS not specified, and brings action of ejectment. TIio court rules that
the conditions having been performed, he cannot eject, but must grant a
good title on " reasonable, usual, and ordinary dues, profits, and acknow-
ledgn^ents."

I apprehend that, according to the English law, the defendant was at
his mercy, and that a verbal and vague promis'^ would not pass n title to
land.

ill

m
P

m
is:

If
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1 ;<■

In 1828, Seigncury of St. Annand. In 179G, the Seigneur conceded
to A. B. one hundred and five acres for the sum of £20 and a quit rent
of a shilling an acre payable after the year 1800, and grantee specially
charged the land with said sums. The Seigneur grantor released for ever
all seigniorial rights. The grantee never paid either the principal or the
quit-rent. It is further alleged that the defendant, piu'chaser from A.
3. has also refused to pay those suras, for which plaintiffs, representatives
of the Seigneur, say the lands are hypothecated.

Defendant pleads that the Seigneur could not grant otherwise than
in censive, nor by a payment or stipulation of a capital sum, the lands
being unreclaimed. That the remedy was against the personal represen-
tatives of the grantee, and that the act is null and void as respects sale.

The court decrees that the defendant pay the demand, or quit
possession.

In 1838, Seigniory of Monnoir. The Seigneur, plaintiff, transferred
in 1832, and claims " ancient cens et rentes" for a portion of the interven-
ing peiiod, a penny an acre^and eighteen livres and three bushels of wheat
for every ninety arpents, on two lots of Innd, Nos. 131 and 132, and two
others, Nos. 146 and 147.

Defendant, censitaire, avers that the lands were wild lands and had
never been conceded ; that the Seigneur was bound to concede ; that
defendant applied for concession " of said two lots" at the ancient rates,
and that the concession was exorbitant and illegal ; that the ancient rate
was one halfpenny each arpent, and one franc and one minot of wheat for
each ninety arpents. That defendant was entitled to demand that the
rate should 1 so reduced. That this deed of concession en censive ille-
gally included a sale of " said two lots" for the sum of 2500 livres.
Defendant prays that with respect to " said two lots," in contract of con-
cession, the cens, &c., be reduced, and that with respect to the " said two
lots" in contract of sale, the deed be declared void, leaving to defendant
his action for the purchase money.

The defendant further, as incidental plaintiff, prays that he have
refunded to him the balance of the illegal cens which he had paid on a por-
tion of the time subsequent to the grant, and restitution of the 2500
livres.

The Seigneur pleads that the two lots Nos. 131 and 132, were con-
ceded by the fomner Seigneur to another party and bought by plaintiff at
Sheriff's sale, subject to the cens, &c., which he now as Seigneur claimed ;
that he declared in due form that he did not reunite them to the domain,
that he held them en roture and not as reunited to the Seigniory. That
the previous Seigneur in 1821 had conceded lots 146 a ad 147, and had
by due form of law retaken possession of them for arrears of cens, &e., and
that a judgment of the court, the censitaire consenting, and claim against
him being quitted, set forth that they were subject to the higher rate of
rent and reunited to the domain, and that the late Seigneur was author-
ised to use them as " his own lioehold and proper estate." That he had
so done, and that plaintiff had succeeded him, as purchaser, in doing so,
and had laid out a large sum of money in improvements, and had lost the
cens, &.C. ; he had also improved lots 131 and 132, and paid dues and

assessments. That the rate at whicli ho had coneedeu ,r?» not above the
usual rate, and that the mode in which they had been acquired, after being
long conceded, entitled him to sale and dispose.

The plaintiff also, as incidental defendant, pro forma denying the facts
generally, allegost hat the original concession of lots 131 and 132, in 1818,
was at the rate of one minot of wheat and six livres ancient currency, for
each thirty superficial arpents ; and further, rehearsing the facts as i.ici-
dental defendant, prays for the dismissal of suit of the incidental plaintiff.

The court adjudges for the plaintiff in full of his claim, and dismisses
the incidental demand.

In 1840, Seigniory of De Lery ; the Seigneur, plaintiff, has granted
in 1796 a titre de cens, &c., that is, in feudality, fifty-six arpents at a rente
of twenty-one shillings and one penny, and a Span'jh dollar a year at the
option of the censitaire in lieu of personal services (corvee), and demands
twenty- nine years of arrears exclusive of lods et ventes'

Defendant pleads that the cens et rentes were excessive, and prays,
that they may be reduced to the ancient rate, but does not say what that
rate was ; and, further, that he may be reimbursed sums which he had
paid in excess of it, in years previous.

Mr. Justice Pyke rendered the judgment of the court, which is fully
reported. It was in favour of the j^laintiff. The court was unable to find
any ancient rate, nor was any pleaded as anciently customary in this Seig-
niory, or in Canada generally. It had not a right to exercise an arbitrary
control over a rent which the party had solemnly agreed and stipulated
to pay. It is the law of France and of common sense, said thf learned
Judge, that the cens shall be apportioned to the fruits (jyrodu: t) of the
thing charged with it {accemee), the censitaire paying (Henri, V, o, P. 91,
and SS.), secundum facultate honorum, according to the ' neficial value.
There was no law to enable them to interfere to set a&nu a stipulated
rent. If a remedy was wanted, it was for the Legislature to apply it.
The policy of the ancient government had now been .attained, and must
yield to one equally beneficial to the public welfare and prosperity. If
ancient d '^cisions were of any weight, they would be at a loss which to
choose, the rates having been so different, and the greatest injustice and
injur; must accrue by decreased value to new proprietors.

Without denying the policy of the decision, I must confess I cannot
understand this logic, which seems to me to weaken the foundation of all
property. The ancient rate was just the thing the court had to find, and
what it should have had the assistance of a jury (and would have had by
the English law) to find, as a question of fact. If the restraining clauses
of the grants mean nothing, do the investing clauses mean anything ? If
one part of the instrument is void, what is the other ? Do the Seigneurs
hold by grants at all, or do they hold by proscription ? Certainly by the
grants ; for the object of avcu and denombrcment was expressly to keep
the grant alive, as much as the exh'bitiou to them of titles by the censi-
takes to protect the interests of the Seigneurs. The object in both eases
was to prevent frauds, usurpations, and evasion of dues on mutations.
It is their business to preserve the old titles, to enable a censitaire to show
if he is defrauded in a new one ; and, if those arc lost by their laches, they

f.,4

tif-

ought to be thrown back on the original grant, and bound to explain,
by secondary evidence, its meaning to the court from which they seek
redress.

I do not presume to say this judgment is not French jurisprudence,
but it completely reverses the principles of English jurisprudence, and
that is my object in calling the attention of my readers to it. In Eng-
land th? Seigneur must have proved his custom, if not by his grant, by the
production of his court rolls if in existence ; if not in existence, by other
documentary or parole evidence sufficient to satisfy a jury ; and any new
grant at variance with that custom would have been voided, if the analogy
of copyholds, which is the nearest, is to be followed ; and he would have been
compelled to grant a new title, on the old terms. Blackstone, B. 2, C.
XXII, S. 3 ; says the " admittances," which are the nearest equivalent to our
litres nwels, the only diflference being, that the former are on succession
or mutation, the latter periodical, " shall not be impeached because of his
(the lord's) title, because they are judicial or rather ministerial acts which
every lord in possession is bound to perform.'^ That seems the sound prin-
ciple. But here the courts have retained just so much of the feudal law
as pressed upon the tenants and prevented enfranchisements ; and, by
introducing the law of civil and private contracts to interpret feudal grants
by a private obligation, have defeated all that in England is preserved for
their protection. " The law,'' says Blackstone, citing books of great anti-
quity, " accounts the lord custom's instrument. He can neither add to
nor diminish the ancient rent, nor make the minutest variation in other
respects."

In other particulars, these cases vary much from the English system.
In the case of De Lery no more than six years rents or mesne profits of
any kind could have been recovered, admittin.or the title to have been prov-
ed. But with that admission, the position of the- Seigneur of Monnoir
would have been in one respect improved ; for though there is a sppcial
article in the Coutume de Paris, allowing him, if he please, not to reannex
a rotiire to the domain, all the four lots would have merged in the
demesne and become unalterably freehold, and ho might have sold or let
on any terms he liked.

The Argentieul decision is about the most extraoi- linary decision ever
I heard of. The case, is on the face of it, one ol fraud. This unfortunate
man, named Lane, probably imagined that the Seigneur, Patrick Murray,
Esq., if he could sell, could enfranchise by deed, as lords of manors can
do at home, and as they can do here now* But the notary could not
possibly be ignorant that the deed was waste paper, so far as the seigniorial
rights were concerned, and that the cens, &c., was non-rachetahle. He
losea his $1500 — small chance, I suppose, of recovering it from a bank-
rupt vendor ; and when Sir John Johnson, the new purchaser, pounces on
him, and he appeals from what he thinks the injustice of the Inferiut Court,
which reduced him to the condition he had made such a sacrifice fo escape
from, he is gravely told that the halfpenny which he had given to escape
the cens is a recognition of that which he wished to avoid, while common
sense will tell any one, it was part of a contract which fell to the ground
for want of consideration.

On the whole, after looking over these decisions, one cannot be very
much surprised, that the general impression prevailed, that in setting such
precedents, the Judges of the day were determined to find reasons for pre-
serving every thing in the feudal tenure which favoured the seigneurs, and
for passing by every thing that told in favour of the tenants.

To conclude, the question may be stated in one way thus : —

The customs of Paris were very ancient, much more ancient than the
very ancient code in which they were first collected. All the lands being
conceded, there was no law to regulate new concessions. The titles of
the Seigneurs themselves were lost in antiquity, and originally, probably,
older than writing itself. A moderate prescription therefore, such as
might be reached within living memory^ was sufficient to ascertain a cus-
tomary payment which was well established.

But Canada was a new country. All the grants are written and on
record ; nor is their meaning very obscure to any one who wishes to get
at it. It was necessary to make regulations compelling the grants of lands
to censitaires, which were not necessary at home ; and to regulate, which
was unhappily done by describing instead of minutely defining what
was perfectly well understood in its day, the terms on which they should
be conceded ; and that was done by the sovereign authority, and acted on
for half a century as the law of the land. Does that law exist now, or are
the people thrown back on. the Coutume de Pu- s for a remedy for a
usurpation it never contemplated? And, is a deed in defiance of
law made good by lapse of time ?

The Commissioners, gentlemen of high standing in their profession,
of whom all have held high appointments under the Crown, and of whom
one has since been promoted to the Bench, say, that the law of 1711 is in
force at this day, and ought to guide the courts.

On the other hand, it may be asked, if the long suspension of the
execution of this law, following an invasion and a conquest, and its
use never revived, is not a virtual repeal of it ; if in such new order of
society, the acceptance of new titles with new conditions was not a waiver
of its benefits by those entitled to them, for considerations which, even if
not strictly legal at the time, may be presumed to have been satisfactory
to those interested ; whether the practice of the country, and the unvary-
ing decisions of all the courts for the last twenty years, have not made a
common law of the country, which it would be dangerous and unjust to
go back eighty years for precedents to disturb ?

That seems to have been the opinion of many Judges, several of
them eminent for learning, and of more than one whose impartiality no
candid man will doubt, and a question more difficult of solution to general
satisfaction, whcthe- it be regarded on strictly moral or strictly legal
grounds, cannot well bo imagined.

,;; I
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APPENDIX C.

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Ift'^

While these sheets are passing through the Press, a new conflict or
rather collision of laws has arisen.

The proprietors of freeholds to the south of the seigniorial line, in the
Eastern Townships, particularly in the counties of Shefford and Sher-
brooke, having found considerable diflSculty in disposing of them to British
settlers, offered inducements to the Canadians from the seigniories to
occupy them, which they have done in considerable numbers.

The mode by whiclf this is effected is by a promesse de vente, a kind
of conveyance known to the French law, and well suited for the condition
of a people nearly destitute of capital. It is, as its name imports, a
promise to sell, on the faith of which the settler enters into occupation.
The promise is written, stipulates the price, the time at which it is to be
all paid up, when the conveyance in fee will be made, and the amount of
interest on what is unpaid.

A clause was introduced into the Election Bill, conferring on persons
so situate, a right to vote if their interest is of sufficient value.

It was alleged, on the one hand, that this was creating a new class
of voters, whose right to vote had never been recognised. On the other,
that the right was clear, and that the clause was merely declaratory, dis-
posing of a doubt that had no real foundation.

It appears to me, that this is, according to the English law, an equit-
able title, and would give an interest, of sufficient quality, if of sufficient
quantity, to confer a vote ; that is, the vote is good if the annual value of
the farm as improved exceeds the interest of tlie money unpaid by forty
shillings, the amount required by law. That is, the result is come at by
applying English equity to construe a French title, which I think, under
Mr. Bowen's Act must be done ; and, indeed is but just to do if the title
is not bad under the English law, which this is not.

An honourable and learned gentleman from Canada West, in the
course of the debate, stated that in the Huron District, there were under
the Canada Company many leases with power of redemption for a certain
sum, and such were not held to confer votes. Nor ought they ; for a lease
for a rent with a right of purchase is merely a lease until the purchase is
made; though it would be very easy to vary the form of the deed so as to
make it a conveyance in fee under a mortgage.

Of the political expediency of settling the doubt in either case, if
doubt there be, by e?ifranchisement or by cZwfranchisement, I desire to be
understood as expressing no opinion.

There is, however, a matter of high moral importance on which I
may bo allowed to express one, as it is intimately connected with the mode
of enjoyment of land, and with the character and happiness of the whole
people ; and that is the frightful amount of perjury which results. In

and

England, it is bad enough ; but here, where there is no registration ; where
almost all small transactions on interest are usurious ; where there is no
such thing as the test of letting to a solvent tenant ; where, in fact, the
number of oaths taken, as formerly in the Irish counties, carry the elec-
tion ; — it is impossible but that great demoralisation must follow such a
system, which for that reason has been abolished, both in England and
Ireland.

I was in England when the Registration Act was first introduced,
and attended a revising barrister while he discharged the arduous duty of
revising the first lists of a county containing over four thousand electors,
and also of two boroughs. In the latter, innumerable questions of value,
dependant on oral testimony, arose ; in the former, not merely those, but
all kinds of questions as to title, and the relation of legal and equitable
rights and the distinctions between real and chattel interests. During
the succeeding nine years there was no Annual Registration in which I
was not engaged as either agent or reporter, so I may venture to lay claim to
some knowledge of the mode of working the English system. My opinion
most decidedly is, that it is utterly inapplicable to the counties here ; but
that it is highly desirable in the large towns, particularly in Montreal, if
the election is to be fairly by number of votes and not by mob law. With
the sparse population of the counties, in the absence of the focal attraction
of local capitals with markets and halls of justice, and of great landowners
to head their respective parties, no real revision could ever take place.
But in the towns, with the basis of the municipal system, nothing could
be easier.

The plan I would propose in the counties is very simple, and would
effectually arrest the progress of the appalling evil, one of the greatest
which can afflict a people, of indifference to the obligations of an oath ; a
thing which invariably happens, wherever " swearing up to the mark" is
a test, and when an oath purges a man of a disqualification.

I would propose that the qualification to vote should be based on
direct taxation. Until lately, this was impracticable ; but now the School
and Municipal Acts make it the easiest thing imaginable. A man who
has not contributed his share to the maintenance of public order, ought
not to vote, and the principle is recognised both in English and Canadian
towns.

I would, therefore, make no enquiry into tenures, or into any man's
titles and private obligations, which is quite unnecessary where the noble,
roture, and freehold tenures are all on the same footing as respects qualifi-
cation, and whore almost every man is a proprietor, and more or less bur-
thened, and value above burthens is a most difficult thing to estimate and
varies every year. I would give to every man a vote who paid a certain
amount to his municipality. All the proof I would require would be the
Treasurer's receipt, with, if required, under ia penalty if false, a declaration
from the party tendering the \ote that he was the elector so described.

It is not at all likely that, for the purpose of manufacturing votes,
any one would get assessed above the real value of his property. To pre-
vent a bad practice, very common at the English Municipal elections, that
of bribing voters by paying up their arrears, it might be enacted that the

t,i

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dai^ of the receipt should be within a certain period of the assessment ;
that, though paid after that, the vote should be lost ; and that any payment
■whatever should be made at least a fortnight before the election. Though
the qualification might thus be nominally changed from the landowners to
the rate-paying class, such is the distribution of property in Canada, that
the voters would, with very few exceptions, be identically the same people.

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APPENDIX 1).

On reperusing the preceding pages, it occurs to me, that a rather
more particular account of the communaute or sooiete (community or part-
nership), resulting from the matrimonial contract, might be useful ; parti-
cularly as the English population of the Province, of which it is the com-
mon law, are generally entirely ignorant of it, and that, excepting in so
far as it is modified by the Ordinance 4 Vict. C. 30, and the Acts 3 Geo.
C. 4-1, and 8 Vict. C. 27, of which the evocation is rare, and the operation
limited, there is no mode whatever of getting quit of it except settlement
before marriage.

I shall, therefore, translate as neai'ly as I can, such portions of Titre X
of the Custom of Paris, and abridge such portions of M. De Ferriere's
Commentary as will, I think, suffice to explain the principles of a depart-
ment of jurisprudence so different in its principles from the British, and
so important to be known by all parties within its operation. I must
again repeat, that this is merely for popular information, and rather to sug-
gest the matters on which it is desirable to be wary, and on which to take
professional advice. My translation is not a literal one, which indeed
would be unintelligible to many.

De Communaute de Biens.

" Community of goods, is a j)artnorship between married persons of
" all personal property, {biens meiibles), and of all real property {conquets
" immmbles) acquired during the marriage state."

" It prevails throughout all customary France, except Normandy,
•* Rheims, and Auvergne."

" This partnership is contracted either by express stipulation, or,
" without it, by the custom of the place of marriage."

" It is contracted by settlement, (convention), in the places where the
" custom does not prevail, with the exception of Normandy, where it is
" absolutely prohibited."

" To establish the community by custom alone, the marriage must be
*" contracted within a customary jurisdiction which presumes it, and in
" which is the ordinary domicile of the parties ; and parties not domiciled
" there do not by marrying there establish a community."

" Though the customary law establishes this partnership in the
♦* absence of a settlement, a settlement may always be made. But that
" settlement cannot be altered by any subsequent one."

[The reason is that the husband might exercise undue influence.
But the Lord Chancellor in England appears to me to exercise a despotic
power over marriage settlements in trust, not assumed by the Civil Law.]

" It is a maxim that nothing can be done in derogation of contracts
** of marriage, which are the law of families."

If'
II

Art. CCXX.

*' Men and women joined together in marriage, have community of
" moveable goods, and of real property acquired during their marriage.
" And the community commences from the day of espousal.'*

'* The marriage must be legitimate ; it must be complete in every
" respect ; there must bo no nullity of marriage. It may be good as a
" sacrament, but have no civil effect, as marriage on death-bed, or of a
" condemned person."

" There fall into the community all the moveables (personal property)
** of the parties, of Avhatever amount or kind ; whether acquired before
marriage or after, on whichever side, by gift, succession, legacy, or pur-
" chase, or in any possible way."

" To this there are two exceptions ;"

'* 1. When otherwise stipulated by the marriage contract."

" 2. When a guardian (tuteur, curateur), marries his ward (mineure)
" without stipulating for the community."

** Meuhles do not mean things actually moveable ; but generally every
•* thing reputed mohilier (personal property) as bonds, schedules, simple
" contract debts, with the exception of rentes constituees (ground rents or
" annuities charged on land) which are reputed immeuhles (realty) ; but
" the arrears of such rents are reputed personal."

[In these particulars, the English and the French law pretty nearly
agree.]

'* With regard to real property ; — whatever is bought during the
*' marriage falls into the community, from which follows ;" —

"1. Real property possessed before marriage, bought or inherited,
" does not do so."

" 2. Nor does such real property as comes, during the marriage, by
" inheritance, nor such as comes by donation in the line of inheritance."

" But real property, given either by strangers to the blood, or by
" collateral relations, does become a part of the community."

" The exception is when by marriage contract a real estate is mobi-
** lised, to subject it to community, as if it were a moveable in nature."

" Formerly, to do this required a judicial sentence ; but, latterly, it is
" held sufficient if done by contract, if not more then one third, of the
" estate is thrown into community."

'* When a marriage is entered into without a contract, a settlement
" may be made ; if one according to ordinary rule and custom, without the
" consent of relations ; but, if of an extraordinary nature, the relations
" must consent, particularly those of the party who is conceding an ad-
" vantage to the other."

" Though the female have no portion whatever, her right to the com-
" munity is the same."

" The community will be presumed to exist in every place where
" community is customary, except it is expressly barred by the marriage
" contract. But in this case, the community will not be presumed as
*' respects property situate in Normandy, or in any other country where
" community is not customary."

** But the commuuity will subsist, if the marriage be contracted in a
" country where it is customary, by parties domiciled there^ though they
" change their residence to Normandy, and one of them dies there. And
'* the contrary, if they marry in a place where it is not customary ; they
" do not make a community by changing their domicile subsequent to
** marriage."

[For this reason, parties who have married in Britain whore com-
munity is unknown, do not create one by settling and acquiring jiroperty
here. But community bore follows on marriage witliout settlement
where community is customary, as in France and elsewhere, where the
civil law prevails. The conditions of marriage are interpreted by the law
of the domicile of the parties, and the place where it is celebrated.]

" When a contract of marriage is made within the jurisdiction of the
" custom of Paris, by persons who are nol domiciled in a place whore com-
" munity is customary, and community is stipulated, it is good for all pro-
" perty subject to community Avherever situated, and that even though
" the parties come to be married with the intention of immediately rcturn-
" ing to their own country. There is a difficulty as respects Normandy,
" which expressly forbids community. Several arrets have ruled, that
" such a contract does extend the community to Normandy, but the Par-
" liament of Rouen rules differently."

The circumstance of community never having been established in
Normandy, explains why it was never introduced in England. Communi-
ty is not a Teutonic principle, but derived from the civil law ; cand the
Normans, entering France after the decline of the Carlovingian power,
appear to have resisted so great an innovation on their domestic habits,
to which the aboriginal Gaulish and the earlier Prankish and Burgundian
Teuton invaders had submitted. The distinction is very important, be-
cause the Townships are, as nearly as possible, our Normandy, community
being- forbidden both by custom and by implication, if not expressly by the
enactments as to dower.

The principle, that marriages celebrated in a jurisdiction within
which the parties are not domiciled, and in which they do not intend to
be domiciled, but which they merely visit for the purpose of evading the
law of marriage of their own country, are good at all, has been much dis-
puted ; many eminent civilians having contended that the contract is
vitiated by fraud. It is, however, now fully and finally settled, that
such a marriage is good. See Story, C. 5., P. 115. Perhaps such a
principle would hardly be tenable in the construction of any other con-
tract ; but that of marriage is peculiar in this, that it is in the power of no
legal tribunal to replace the parties in the ante-nuptial condition.

But, though the predominating power of the parliament of Paris, not-
withstanding the protests of the Norman lawyers, extended, as the result of
such marriages, the community to countries where it was not customary ;
and though in later times, to attain the great object of uniformity of laws,
community has been extended over the whole of France, one feature of that
merging of provincialism in centralisation, which, steadily pursued, from
the time of Louis the Fourteenth who began it, to that of Napoleon who
completed it, has had such a great but doubtful influence over the fortunes

11:

r.'li

of the nation ; I apprehend that auch construction would not follow within
independent jurisdictions where community is not customary, such as
England, Scotland, and Massachusetts. Most certainly it would not, as
respected real property ; nor personal, unless that were brought within
it by a new domiciliation.

But", in Lower Canada, which is not, like Normandy and Paris, two
provinces of the same state, but is one province, with one jurisdiction,
where the custom of Paris is the common law or " old law," and where the
English law is exceptional and parliamentary, many curious questions
will doubtless arise as to the eflfect of marriages in the seigniorial section of
the Province on property in the soccages, and vice versa ; and, especially,
one which I am not aware ever cither did, or could arise any where else ;
and that is, whether a person can be domiciled as for a part of the Pro-
or whether his domicile is not for the whole and ruled by its com-

vmce,

raon law. In time, there will be any amount of litigation which people are
able or willing to pay for.

Those who wish to enter more fully into this subject, will find it
amply treated of by Story (Conflict of Laws), who has collected all the
modern authorities, which do not appear to me to vary from, or to have
made any advance upon, the positions taken by De Ferriere and the civi-
lians of his day, which are literd, intelligible, common sense, and generally
accepted over the world.

It is only necessary to add, that by Art. 223 of the custom of Paris,
the female cannot sell or part with any portion of her inheritance without
the consent of her husband ; but she can dispose by will in such mode as
is in conformity with the custom, not absolutely, but with reference to the
legitime or inheritance of her heirs. By Art. 225, the husband is seigneur
of the property, real or personal, acquired by him during the marriage,
and can dispose of it as he pleases, *' without fraud ;" but he cannot dis-
pose of it by will, at least, (Art. 296) not to the extent of more than his
share of the community, that is the half. The reason is obvious. If he
sell for the full value, and no other sale is legal, during his life, the pro-
ceeds of the sale go into the community ; but, if he alienate by testament,
the community receives no consideration, the partnership is by so much
impoverished.

All this, however, as respects Canada, is most materially altered by
the Ordinance of 1841 previously cited (ante P. 18), and the explanatory
Act of 1845, (see note to that page.)

Mr. Lafontaine, in his " Analyse de I'Ordonnance,'' makes some an-
gry, but not unnatural comments on the former. Certainly the exempting
females, not within the Province, from examination before a judge, before
they part with their property of their own free Avill, is an absurdity ; for
a case of absence, which may possibly be enforced, is exactly the one in
Avhich the greatest care should be taken ; and the necessity of producing a
female personally within the jurisdiction of the court, is the greatest
security she can have.

But, waiving this, I think that the learned commentator must, by
this time, be convinced that his objections to the " morality" of the law

on the ground of its affording inducements to improper coercion, are un-
founded. The fact is, that, though the female may in some respects be
the weaker sex, women are much more tenacious of their property than
men, as every one who has had to deal with them in the way of business
knows ; and though they have less extended views, they are more vigi-
lant and suspicious. I do not think it is possible to coerce a woman to
part with her property against her will, without a degree of violence on
the one side, or a weakness of intellect on the other, which would vitiato
the transaction. I never before heard of such a thiii!? since the plan of
alienation by simple deed, following previous declaration before a commis-
sioner, was adopted ; though such things have been talked of under the
old law, when the means were indirect and personal appearance not
necessary. *

It is true, that cases may and do arise, in which a foolish and extra-
vagant couple combine to ruin themselves and impoverish their oftspring.
But the severest laws of community, or of entail, will not prevent such
people doing so, and these are but exceptions. All law is a compromise
of evils. It may be safely assumed, that, in the vast majority of cases, and
more particularly in the •pays contumiereSi where the women are used to
take a more active share in the management of property than they are in
England, when a man and his wife agree to make a legal sale of a pro-
perty, it is for the advantage of the family that they should do so, and
that it would be cruel and impolitic to prevent their doing it. And it is
by no means certain, that the occasional dissipation of property by the
extravagant, which seems a universal law of our moral nature, is not
beneficial U* *ii3 whole of society. Wo must legislate for the generality, not
for the exceptions. And the generality is, that the man a..d wife will not
combine to effect a sale, without good and sufiicient reasons. M. Lafon-
taine, I think, undervalues the spirit of his countrywomen, if he thinks they
are so easily induced to do what they know to be foolish or wrong.

an-
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NOTES,

PAGE 3, LINE 35.

Whenever wc meet with the world *' dale", so common in the North of England, and
in the North of Scotland, as " Helmsdale," " Berriedale," it is a certain sign of Danish

settlement.

PAGE 4, LINE 5.

I am aware of no certain pvoof ^vhether this meant division by chance, a.3 a

" lottery," or judicial division, as the " Hotting" common in England on enclosure of

jinmons, or the dividing the land acquired 'rom the nation into " lots," as now in Canada.

PAGE 4, LINE 6.

Also in " loadstone," the stone which leads. One argument among' others, thatjt
was known to ihe Norsemen.

PAGE 4, LINE 17. "

De Ferriere inclines to the etymology of " allot," — indeed assumes it. In his
time, the medioeval languages and laws were !'*tle studied to what they have been
lately. They were treated with scorn tj the lawyers, compared with the feudal and the
civil law. He considers the origin of the " aleudes" of France to be Gaulish ; tenures
spared by the Prankish conquerors. It is much more probable, reasoning by the analogy
of England, that they were Frank tenures, which escaped the feudal system. And *,his is
pretty clearly established by the allodial tenure remaining in certain provinces, up to a late
date, the common law of the country, " le loi du pays,'"' and the burthen of proof of feuda'.
lity lying on the person who claii.ied the superiority of the land en fief.

PAGE 4, LINL ;9.

That phrase of " free and common soccage", occurs in the very earliest grant of the
BrlJsh Crown in the Province, pre?Ci'ved by Maseres, of a lot on the beach of Quebec.
The famous Statute of Charles II. gives to tenures in feudality the advantage of hold-
ing in soccage, which was itself, acco ding to the definitions of the English lawyers, a feudal
tenure, and did not apply to freeholds or allods at all. I think it must have been copied
from some grants in New England in feudality, to qualify which, and take away the mili-
tary incidents, the words have been introduced, and copied with no clear perception of their
meaning. Rl aseres speaks of the habitants as '' freeholders", and it is by no means cer-
tain that, according to the English law, the freehold of the soil is not in them, and I can
find nothing in the grants, nor in the edicts, nor in the Coutume de Paris, to justify the
reservation of mif3s and minerals, save those which by law and grant were reserved to
the Crown, rumely mines of the precious metals.

PAGE 4, LINE 36.

I use the word " Celtic" popularly, and as all persons use it who wish to be
^understood popularly. Custom has made it the term descriptive of all the nations,
who, in the time of Caisar, occupied the British Isles and the continent of Europe,
west of the Alps, and between the Rhine and the Ebro. It is, hu . ever, As much a mis-
nomer as that of the Turks in calling all Western Europeans Franks, because that was the
first race with which they came into contact. Of the three peoples, who, in Caesar's time,
divided Ga^a., but one, those of the centre and oast, called thcms«»lvcs Celta: ; and all three,
he tells us, differed in language, institutions and laws. (De jLiello Gallico, C. 1.) Of
their extant descendants, none, that I am aware of, call Ihemselvcs " Cells," though it is
the fashion to call them so. The inhabitants of Britanny, the ancient Armorica, call
themselvea " Bretons ;" the Welsh " Cymri;" sometimes they call themselves " Britons,"
or •' Ancient Britons" ; but that is when they arc speaking a foreign language ; (he
Scottish Highlanders call themselves " Gael."

III

the

icer-
can
the

bd to

lo be

irope,

The migrations of this wide spread race, at a very remote period, from central Asia ;
their ascending the Danube and occupying Asia Minor ; their establishing themselves in
the Italian peninsula and west of the Alps, are well established facts, though the date, and
whether they were the original settlers, is doubtful. Hence, they are described by some
as the Indo-Scythic race.

The Bretons of France and the Welsh of Great Britain, speak nearly the same
language. It has been asserted, and has been denied, that those two people, after more
than a thousand years of separation, can understand each other. But I have been assured
by a very intelligent friend of mine, who married a Welsh lady, that, when at Pwhelli in
Anglesea, a Breton sloop that had been driven out by stress of weatiier, put into th^t port,
and that they p.nd the Welsh could perfectly understand them.

The French Canadians are almost a pure Celtic race. Britanny was their home, with
the exception of some of the noble families, who are very different in physique from the bulk
of the habitants. The Normans conquered Britanny shortly after they conquered England,
and established there a militaxy aristocracy, wliich, unhkc the Anglo-Normans, kept them-
selvea a distinct caste from the subject race. The generality of the Canadians bear a
striking resemblance in features, manner, and style of living, to the rustic Welsh of th»
present, day.

The best ethnologists are of opinion, that the great and preponderating volume of the
blood of modern France is what is called Celtic ; that, except in the Northern piovinces,
Teutonic irruptions have made little inroad or. the ancient stock.

PAGE 4, LINE 41.

I speak of ihem as they exist, or did formerly exist, in the least altered forms,
as in the Highlands of Scotland, in Wales, and in England. There is no doubt,
that at the period when authentic history commences, particularly in France, they had
very much altered their customs under the influence of the races with whom they mixed
and came into contact.

PAGE 4, LINE 47.

The authority cf Caesar may seem to be against me. He says exprsesly, (Lib. VI.)
that the Germans, whom he saw, despised agriculture, had no private property in land, or
settled boundaries, but that every year a portion was assigned to each man to cultivate, as
the public authorities thought fit. But all that Csesar saw was the border territory,
where the Belgffi, the fiercest of the Gaulish tribes, waged continual war iwth them. It does
not follow that the institution of landed property was not in the secure Scandinavian seats
of the race, or that it was not introduced in their southern territories, during tlie several
centuries which intervened between the death of Caesar and the expulsion of the Romans.
The latter knew and cared very little about the barba'ians destined to be their future con .
querors ; but it is scarcely to be supposed, that the people who assembled in sufficient
numbers and force, but a very few years after Caesar wrote, to overthrow the best appoint'
ed army that ever Rome sent forth, were without those resources which can only be ob-
tained by a settled cultivation oi land. Nor is it more likely that so wise and tolerant a
people as the Romans would have sent, with the ill-fattd host of Varus, an equally doomed
host of lawyers, to teach the jus positivinn to a race whose ideas of property were pretty
exactly those, if the description of Ccesar be generally true, of the Algonquin Indians when
first discovered.

With reference to the Gauls, there is a curious passage in Cassar (L. VI., C. IV.)
One would think he was describing the Ireland of the present day. " In Gaul," he says,
" not merely in all the states, in all the tribes, in every tract of Cv mitry, but almost in
every house, there are parties (factioncsy — the Irish "factions." And then he proceeds
to tell how, when he entered Gaul, the two leading factions were the ^dui and the
Scquani, and that the lattcr,coming off second best, called in the assistance of the Germans,
with whose aid they destroyed almost tlie whole .^duan nobility ,who were the only persons
of account, the common people being mere serfs; pkbs pene loco scrvorum ; ard that tlie
jEdui, driven to tlio last resource, called in Cossar, who speedily put them in a better condi-
tion than ever, and drove the Germans back across the Rhine. The end of all was (hat
Celtic Gaul, like Celtic Britain a little later, entirely lost its independence, and, each of
tliem, after a long struggle between the Roman and the Teutonic races, fell to the
latter. But it is remarkable, that the effect of the fusion of foreign races and laws has
been on the very same ground, respectively, the construction of the two greatest, most
coherent, and self-united nationalities in the world, and the most intolerant of foreign inlrr-
ference, thoss of England and France.

i'i'-

p ■

I must beg, however, not to be understood as according to the vulgar iAen. of tiie in*
feriority of the Celtic race. There certainly is a great difference, and that difference I fear
is not in favour of their working Teutonic institutions. But still, we must beware of too
hasty generalisations, and of classing races as Celtic which are only so in,name. For, as we
may often do in this immigrant country j — take a family of Scottish Highlanders ; take
one of the Irish, Munster or Connaught blood ; and take one of the Canadian stock, the
pure Breton unmixed with the Indian blood. All these, whether truly or not, are
reputed Celtic ; but no three of the Cir-Caucasian families can well be more different in
bodily or mental characteristics. And no one who has seen the pure Welsh race unmixed
with the Saxon, as in the upper vallies at the sources of the Dee and the Conway, can fail
to be struck with their affinity to the latter, however removed by time, language, religion,
or location. And the Welsh have ever been, since their subjugation, or rather their union,
the most faithful, attached, and peaceable, of the subjects of the British empire. I can take
upon me to say, that M. Thierry is mistaken, when he says, that the inhabitants of North
Wales, which I know well, have any antipathy or repulsion to their Saxon neighbours of
Cheshire and Shropshire.

There is something in bload, but, in my opinion, language has much more influence in
ultimately determining the character of a people. Literature gradually supersedes the
instincts, and traditions, and modifies the mode of thoughti If two nations adopt the same
language, as Ireland and England, they have a chance of becoming thoroughly united, and
homogeneous in character ; if the same literature, as Scotland and England, they have a
better chance. For all practical purposes, with the exception of religion, the literature of
the masses ir newspapers. But the writers in the newspapers themselves take their tone of
thought from the national type as expressed in its own serious literature.

And it is very much to be regretted, that, in Lower Canada, the modes of thought and
expression should be so different with the two races. Severe logic, plain common sense,
the educated and intelligent of both races equally understand. But, with the multitude of
either, and particularly in a discourse which inclines to the rhetorical, as most discourses
whether written or oral usually do, vhat is convincing to an Englishman is unintelligi-
ble or inconsequential to a Frenchman, and the like in the other case. Nor do I see the
slightest prospect of removing this discrepancy, so long as they have each a distinct litera-
ture, and the bulk of each a distinct language. It is the same in England and France —
what is eloquence in one is not eloquence in the other, if eloquence be the power of moving
men's minds from their balance. It is only a very rare and high order of eloquence indeed
which is equally acceptable in both ; something like Colonel Smith's ingenious idea in
ethnology, — that whatever form in any type of the human race ivould be deemed perfectly
beautiful in its type, would be deemed beautiful by any other race however diverse in
colour or form.

PAGE 5, LINE 40.

Marriott foresaw this, " The men becoming, almost all of them, converts to the
Romish religion, by marrying and dwelling among the inhabitants." P. 165. Popery
was his bugbear.

PAGE 6, LINE 49.

We are accustomed to speak with contempt and di.slike of squatters, as if they
were robbers or land pirates. What is a squatter'? He is a man who obeys the
primary law of God, by the sweat of his brow to earn his bread, and innocently and lauda-
bly asserts his right to a moderate shHre of nature's large inheritance. He is entitled to
every sympathy, and is an infinitely more valuable member of society than a man whose
wealth enables him to keep a large tract of land in barren desolation, a nuisance and a
curse, irrechumed, and making the land of his neighbours irreclaimable. The most
effectual and just way of stopping such mischievous speculations is by laying a tax on waste-
lands for the making of jotids and bridges.

The law of Upper Canada is very unfavourable to this ckss of people. It takes
twenty, or it may l/e forty, years possession to make good a title against private individuals.
Nor does any prescription run agninst the Crown, other than by the English Statutes,
and I have been informed of an instance, in which a party who had been in possession
eighty years was deforced at the suit of the Crown.

In Lower Canada, the law is rather more favourable. Forty years possession pcrfecls
a title, and by a humane fiction, similar in principle to that which makes Bills of Exchange

Effects

negotiable) if the party in possession can show a title from a person formerly in possession,
even though that person had no title of his own, ten years Ih a sufficient prescription if no
collusion can be proved, unless the plaintiff be out of the Prcvlnce, when it requires twenty.

In my opinion, in a country like this, and considering the great public polity of en-
couraging settlement, six years would be quite sufficient. If, in that time, the legal owner
did not assert his right, it might be fairly inferred that he was acquiescent, or barred by his
own laches, and the squatter ought to take a title for a fail lot, in proportion to what he
had cleared, on paying what was the value of the land before he rendered it productive.

The expelling of squatters from the large blocks of land kept desert as Clergy Resenres,
is a fruitful source of mischief and oppression in Upper Canada.

It is a matter of congratulation, that the system of granting lands in the mode called
by the French en constitut, and by the English " reserved rents", is prevailing ; as it is
clearly impolitic to take from the poor settler, in purchase money, the whole of his disposa-
ble capital. But those rents ought to be redeemable at option of either grantor or grantee, at
a fixed rale, within a certain time — say twenty years.

PAGE 7, LINE 12.

The personal and pecuniary services due by the Prussian serfs were very severe ; their
condition was much the same as that of the ^villeins in , England four or five centuries
ago, and generally in France to a latter period. The government appointed an " econo-
mical college", or commission, lo abolish those by commutation, in 1811, but it was an
empty formality. — London Daily News, October 24, 1848. From what I see here, I can
readily believe that it would be found equally difiicult to get at a value which both parlies
considered fair for the serf, and for him to pay it when ascertained. But, as the whole
system is now sivept away without compensation, it is pretty olear that it would have been
for the interest of the lords to have made very large sacrifices, in consideration of the in-
security of the title, especially after the warning that France had afforded, and the example
England had set.

PAGE 7, LINE 24.

The Commissioners on the Seigniorial Tenure report that there are but two
instances in Canada of grants in //one aleu noble, and both those in favour of the order of
the Jesuits.

The peculiar constitution of that society explains this apparent anomaly. The Jesuits
never were, strictly speaking, a corporation. '1 hose in Canada and elsewhere were merely
usurructuaries for the society, the title being in the General of the order, as Marriott has
learnedly explained, and on which he founds his argument for the legality of extinguishing the
possessions of the order, there being none of the subjects of the Crowu of England having
any title to them. Consequently, if granted en fief, on the nomination of a new General,
there would have been a mutation equivalent lo a sale ; but, by the ingenious ficticn of
granting in franc aleu noble, the order escaped the quint.

PAGE 7, LINE 34.

It may be a question, how far the Latin and the Greek are themsolves of Celtic
origin. The conformity of the roots of the two last languages is very striking •
But it is certain, that the Latin and the modern European languages based on it agree
with modern Celtic dialects in a very material particular— that the gender of the pro-
noun or adjective follows that of the substantive. The masculine application of '.'her" and
" she" by the Erse, Gael, and Welsh, has been a continual source of merriment to their
Saxon neighbours, as much as an Englishman's blunder, the converse way, to a French-
man.

PAGE 8, LINE 35.

Blackslone is not alone in his opinion, drawn from observance of facts, that soccage
often was something more than a base villein tenure, though in niany instances it might
have been so. There is one fact difficult to get over, and that is that many of the
soccages were burgage tenures in which the plough never could be used, nor the lord
served in villeinage.

PAGE 8, LINE 43. i*^

Was~I may say. The deplorable loss of thfi Legislative Libraries, the only ones for
the purpose of reference in the Province, has deprived me of the means of verifying much
that I have stated from memory.

1 1

'.i

i':.i.3

If I might venture to hazard a conjecture on ground occupied by so ni>..iy learned
men, it is that the derivation of the word is not uniform, and that two tenures of very
different character are confounded under it.

The old English or Anglo-Saxon Stoke, is a castle or fortified hold. It is from " stake,"
the root of'* stoccade," which with rude people all over Ihu world is the common mode of for-
tif3^ng, and was particularly so in England between the times of the Romans and the Nor-
mans, both of whom built with stone.

This word is in our common names of places variously corrupted. Sometimes it is
"soke" as the soke of Wakefield. Sometimes it is "sop" as in Worksop, where the
word is duplicated, " work" or " warth" meaning nearly ti '^ same thing as "stoke". Spel-
man defines it "turris." Froissart, who was well acquainted with English customs, calls
Greystoke, a castle then of great note, " Grisop."

According to Mr. West, who wrote a most learned and careful history of Furness
in Lancashire, the inhabitants of that district were ahnont sMirely Saxon, having been from
very early times under the protection of a Benedictine Abbe_ , The Abbot had, of his castle
of Dalton, Free Homagers (P. 107) who were distinguished ;.s Freemen, Liberi Homines,
and Free Soccagers. He is certain that these held by fealty, and never were customary
tenants, or tenants in pure villeinage ; and, quite unaware of the curious question he is rais-
ing, he conjectures that they were originally lords each of their own manors, and feuda*
tories, while it is quite obvious that these tenures were the remains of the iillodial Saxon
inheritances.

I therefore humbly submit, that it solves all difficulties to suppose, that soccagers were,
originally, either villeins who held by the soc, or freemen who held by the stoke or soke of
the community of which they were a part ; and that the confusion from similarity of sound
was aided by the great resemblance of the two tenures, in the exemption common to both
from the military incidents of fiefs, and consequently of relief and wardship.

PAGE 9, LINE 17.

It is also possible, that some of the contempt into which this word has fallen, has
arisen from the association of it with the infamori term roue. De Ferriere in verba
speaks with just horror of this cruel and atrocious punishment, and says it is not of French
but of German origin. A German lawyer might perhaps be of a different opinion. Though
not worse than the English " hanging, drawing, and quartering," it existed to a later
period, and was not confined exclusively to cases of treason.

The derivation from turning a wheel in a mill, receives some countenance from an
article in the custom of Paris, Art. 14. The younger children, if the mill is banal, are to
contribute " auxfrais des moulins, tournans, et travaillans au dit moulin.^^ From that it
may be inferred that water power and that of beasts of burthen were not in use at that
time. Nor were they in more ancient times, when corn was pounded, not ground. The Latin
frumentum survives in the North of England as " frumenty", and it is not so long since
every farm house had its frumenty stone or " quern."

PAGE 10, LINE 9

Burke has expressed this with his usual felicitous precision, " Protection was wanted,
and the domestic tie, though not the highest, was the closest." Speech on .Economical
Reform.

PAGE 10, LINE 49.

The only exception is when the land escheats or reverts (Blackstone, in verbo, Copy-
hold,) and then the lord can grant in freehold, soccage, or by the ancient custom (cens et
rentes) as he likes, but by no new custom. In point oifact, if a tenement is once re-annexed
to the demesne, it is never granted otherwise than in freehold, and it has even been ques-
tioned, whether, if a copyhold were mortgaged to the lord in trust for another, and the
legal title thus vested in him, though he had no interest in it, it did not enfranchise it as
against himself, and whether he could do otherwise than reconvey in freehold (franc alcu)
what he had received in trust as copyhold (ea censive.) So much does the English law
lean to enfrenchisement ; so much the French against it.

• PAGE II, LINE 7.

Many people think that there is something slavish in the Custom of Paris, as modified
by the Civil Law. Blacksfrme says. Note S.3, " It is one of the characferictic marks of

jgh

an
5 to
Eitit

ited,
lical

et
jxed
ues-
the
It as
tleu)
llaw

English liberty, that our common law depends upon custom, which carries this internal
evidence offreedom along with it, that it wns probably introduced by the voluntary consent
of the people." And his commentator cites Wilmot, who says, " The Statute Law is the
will of the Legislature in writing ; the common law is nothing else but statutes worn out
by time ;" and Hale " Many of those things that we now take for common law were un;
doubtedly Acts of Parliament, tliough not now to be found on record ;" and, by way of
contrast, the first sentence of the Constitution of the Civil Laiv, " Quod principi placeat,
legis habet vigorem.'^ Now, without raising the questions, whether princeps does not mean
that supreme and absolute power in the state, whether monarchical or other, which, as
Blackstone himself says, must necessarily exist somewhere ; and whether, taking it to be
purely monarchical and aristocratical, we have not had quite as slavish definitions by the
English lawyers in the last preceding century, it is quite sufficient to copy the opening
sentence^ of De Ferriere's commentary on the customs. " Custom is a usage of right
which the people has approved and introduced by tacit consent and has been observed for a
series of yea-s. It imitates the law, it interprets it, and sometimes even corrects it."
There can be no clearer defination of the common law as the lex loci ; none more coincides
with the interpretation of customs as relating to tenures ; nor in any English law book is
there to be found a more distinct assertion of primitial rights — rights not dependant on the
will of a monarch.

PAGE 11, LINE 10.

De Ferriere, howeTer,uttributes this to the introduction of the droit ecrit, or Roman Law
itself. Allowance must be made for the prejudices of his time and profession. The civil
lawyers attributed every thing good to that law, always resorted to it hypolhetically, and
neglected; or were ignorant of the ancient local institutions.

PAGE 11, LINE 35.

1 he meaning of the word " manor," though uniform in its origin, is different in
French to what it is in English law.

In the former, it means the capital mansion-house or residence of the Seigneur or
Lord. In this sense, Mr. Thierry thinks it was understood in England after the conquest.

But, in England, at present, and for at least some centuries back, it means the whole
fief or seigneury with all its demesne, rights, dues, and redevance/t, even though there bo no
manor house extant.

Blackstone and De Ferriere, both following Du Cange, are of opinion that it is deriv-
ed from manere, to remain — where the lord dwelleth. But I can scarcely see how manoir
can be derived, according to any usual rule of etymology, from the infinitive ; it would be
more likely to make manent or manend, as " tenant," " tenement" from ienere. The
word is more like manus, main, that which the lord hath in his land. And similar to this
is the old English law term maner, when a thief is caught with his spoil in his hand.

PAGE 12, LINE 14.

Of the same date, is the well-known epigram on the compo.rative heinousness of
stealing the goose from the common, and the common from the goose.

PAGE 13, LINE 4.

This is, of course, with the exception of som» customs in which thp land was presumed
prima facie to be allodial.

PAGE 14, LINE 12.

Nevertheless, '.he civilians have contrived to get rid of the retrait lignager, almost as
effectually as the English lawyers have of tlie Statute de donis, and on much the same
ground, — public polity.

This, unknown to the Roman law, but local and customarj-, was the right of an heir to
repurchase any estate alienated by sales, ivhether voluntary or compulsory. I it, though of
the greatest antiquity and prevailing nearly over the whole of France, the civilians says
that it is opposed to liberty of commorco, nrid at variance with the comniDn law of vending,
and hostile to the rights of man. And, on this ground, which is, as nearly as possible, that
on which the English Courts set themselves to defeat the plain intentions of the Legislature,
as respects entails, the French lawyers have practically extinguished the retrait lignager.
They look most severely to the formalities, and, if the slightest imperfection of form or failure

-•I
I

of proof can be discovered declare the action null ; and, whercTer, says De Ferriere,a doubt
can be raised on any incident, or any article of the custom, it is invariably interpreted against
the heir rttraijant. In fact, the suit now only exists in theory.

PAGE 15, LINE 12.

As this Act, 6 Geo. IV., is the title to nearly all the Township lands in the Province,
it is as well to recite its words in full. They are that the lands of all grantees of " free
and common soccage lands, may, and shall be by such grantees, their heirs and assigns,
held, granted, bargained, sold, aliened, and disposed of, and may and shall pass by descent,
in such manner and form, and under such rules and restrictions, as are by the law of Engo
land established and in force, in reference to the grant, bargain, sale, alienation, convey-
ance, disposal or descent of lands holden by the like tenure therein situate, or to the dower
or other rights of married women in such lands, and not otherwise ; any custom, law or
usage to the contrary notwithstanding." Nothing can be more explicit, if free and common
Hoccage is taken, as it always has been here, as the equivalent of freehold of inheritance.
If otherwise, where is the lord to accept surrender and grant admittance 1 But the recog»
nitions of the local meaning have been so frequent, both judicially and legisktorially, that I
apprehend no doubt can now be raised.

PAGE 15, LINE 15.

This is not a restriction of liberty, but the enlarging it. Parties can take their
choice of the mode of conveyance. French settlers may prefer the French lode; English
the English. One may prefer a notarial contract ; another a simple deed between parties.
But, whichever is preferred, that does not affect the tenure of the land, and eiUier must
equally be registered.

PAGE 16, LINE 14.

I must observe, that my objections to the partition of lands, with little or no refer-
ence to the droit cPainesse (right of primogeniture,) are social and political, not legal. The
French system is more rigid, exact, and defined than the English, und admits of less distur-
bance ; the latter is more elastic, and is easier accommodated to the various exigencies of
individuals and of society. The former occasions far less litigation ; i.he latter confers
more freedom. But it must be remembered, that, in England, the diiJi»rence principally
arises from the Courts modifying the provisions of the common law, in itself ori-
ginally as simple as the French, by the creation of trusts and uses, so as to confer interests
of a new and very complicated kind, the understanding of which is a distinct science
from common law.

PAGE 18, LINE 11.

Erratum. For clauses 24 and 25, read clauses 34 and 35.

A difficulty might arise on the construction of the word " seized." How can, in the
English law, & femme couverte, or, in the French, one en communau/e, be seized of real
estate *? Neither give her the dominion, which I apprehend is in both liws essential to
seisin ; except the former by trusts in equity, and the latter by a separation de biens, equi«
valent to it. However, the decisions of the Courts must now be taken to construe the
word as I have interpreted it in the text.

Another difficulty arose from that law. It was held, that it had no retroactive effect ;
that it did not apply to any dower or other marital title except created after the passing of
the Act.

To remedy that, and other doubts, an Act was passed, 8 Vic. C. 27, which contains
the following clauses : —

" And be it Enacted, That the words " legal and customary dower" in the thirty-
** fifth Section, or in any other part of the said Ordinance, shall be deemed to include
" not only legal and customary dower, but also stipulated (prefixe) or conventional
** dower ; and, that such interpretation shall apply to all transactions or acts entered
" into or done by any married woman since the said Ordinance came into effect, and
" and they aliall avail as if such, the said Section, had clearly included and been in-
" tended to apply to stipulated (jyrffixe') or conventional dowar, as well as to legal
" and customary dower."

** And be it Enacted, That it shall be lawful for any married woman, of the full
•' age of twenty one years, to release her dower and right to dower, whether customary

tbt
ist

:e,
ree
ns,
:nt,
ng-
ey.
iver
or
non
ice.

It I

Lheir
;lish
ties,
must

efer-
The
istur-
ies of
infers
ipally
ori-
erests
ience

in the
»f real
ial to
equi«
le the

fleet ;
ling of

[itains

Ihirty-
liclude
(tional
itered
(t, and
|en in*
legal

full
omwy

"■ or conventional, (profile) on any real or immoveable property ivhatcver, by an in-
"strument {Acte), separate from, and posterior to that by which such property may
" have been sold, conveyed, exchanged, given, or otherwise alienated either by her
" husband alone, or by her husband and herself jointly, and whether such instrument
" shall be or have been executed before or after the passing of this Act, or before or
" after the day on which the said Ordinance came into force, and the release of dower
" to be so made, shall have the same effect with regard to such married woman, her
" children, heirs, or legal representatives, or other persons whatever, and with regard
" to conventional as well as customary dower, as the release of dower made under the
" thirty-fifth section of the said Ordinance would have under the said Section, or the
" thirty -seventh stcUon, or any other part of the said Ordinance, or of this Act, with
" regard to the same parties and to the legal and customary dower."

PAGE 18, LINE 2k

Fief servant, DeFerriere ; Fief mediant, Argou.

PAGE 18. LINE 38.

Commutations in England have usually been effected by private Acts of Parliament j
that is, when the lord, and the tenant, and parties having contingent interests can agree, they
go to Parliament for an Act, and get power to commute.

But, as this process was very slow, a commission was appointed about ten years ago to
facilitate voluntary enfranchisement, and a general Act was passed. It must be observed, that
England resembles not Canada, but old France, in the great variety of its coutuwes. In
some manors they are very heavy ; in others, so light from the desuetude of personal services
and the ancient conversion of the cens, &c., into money payments, that the lands are
scarcely less than freehold. And in that respect, the law of England is much more favour-
able to the censitaire than the French law. There, the most ancient custom is the best,
and no custom can be set up to the contrary of a written title, nor can any new custom be
established. The word " prescription" also is totally different in meaning in the two sys-
tems. A prescriptive title in England, is, one which is, or is presumed to be, older
than the date of legal memory, that is the year 1189 ; and, if there be a record, no matter
how old, there is no prescription, but the title must be judged by the record. ''Thec.-rsence of
a prescription is that there is no written title, and by presuming a prescription, the law steps
in to the relief of the possessor. The very genius and essence of prescription is that the origin
of your title is lost. If you were obliged to trace the origin of your prescription it would
abrogate the prescription itself. But, your title being lost in the obscurity of antiquity, the
law comes in with its benevolent aid, and relieves you from the necessity of showing its
origin." I copy this very excellent definition, though not judicial, from the speech cf Mr.
Bethel), in the great case of the Crown v the Corporation of London. In the Frcncti
writers " Prescription is the acquirinij; a title to any thing by its uninterrupted possession
during the time required by law." Dc Ferriere in verbo. " Prescirc," would, in English,
be expressed 'I'itie by possession or Title by use ; " Prescire contre" (Argou Vol. 1, P.
247) is limitation or waiver.

The commission to which I have referred, made its sixth Report in 1847, and the
Report was that commutation was proceeding, but slowly ; for, in the very places where it
was most desirable, namely, where the value of the land - as rapidly increasing, the lords
were most unwilling to commute ; and, in others, the tenants were least desirous. They're-
cornmend a limited compulsory measure which, however, is not yet devised. The rates of
commutation generally had been from five to six years' annual value, where the fines were
arbitrary ; that is, when two years value was paid on death of lord or change of tenant — a
tenure much worse than any known in Canada ; and, where the fines were certain, that is,
wheti they were by ancient custom commuted into small money payments, one year's value ;
and the annual payments (tens et rentes) at twenty-eight to thirty -two years purchase.

PAGE 19, LINE 27.

Marriott denies (P. 172) the existence of '•' real ancient nobility tOiVA titles (sic. in
orig.) in the Province." This is somewhat doubtful. In looking over the roil of the
original grantees of the seigneuries, it will be found that most of them were grunted to noble
French families ; and though the Jief de dignile or t\l\e, (in the English sense meaning a
hereditary title of honour), might not descend to the Canadian branch, tliey were noble in
the continental sense ; and so are English " country gentry" to whom Mariott likea them,
as Sir John Lawrence in his •' Mobility cf the English Gentry" has well demonstrated.

■ i

Mariott says, (P. 174) that " three or four seigneurs" had exercised jurisdiction before
the conquest, " but dropped it on account of the expence, and never having done fealty or
homage". This, there can be no doubt, was the '• moyenne et basse justice."

Its nature he expresses correctly — "something like our court-barons or court-
leets;" that is, the most trumpery business imaginable. "And," he says, "very few,
by right of their fiefs, for they caiinof exercise their jurisdiction ns Stigneurs unless
they have patents of nobility." Every one knows that a roturier cannot (or rather could
not, for one gets to talk of things past almost as if they were present) acquire any nobility
by merely buying a fief; and, with the nobility, went the " haute justice ;" and nothing can
possibly be more ridiculous tlian the pretensions of some modern Seigneurs to the juris-
dictions due at a time more remote than even tiie recognition of the legal existence of the
present claimants to the privileges of ancient nobles of orthodoxly intolerant blocd.

" En France les Justices sont patrimoniale, c'est-a-diro hereditaires et en commerce :
Fief et Justice n'y ont rien de comniun. S'ils'y trouvci;t unis, ils sont toujours divisibies ;
si vrai, que qui vend la fief sans parle de la Justice n'tst pas cause I'avoir vendu ; ettel a le
Fief d'un lieu, que n'en a pas le Justice. La raison est," &c. La Nouvelle Maison Rus-
tique, Paris 1740, Ed. V. 4to.

It is clear, therefore, that the Snigneurs, quoad Seigneur.s, can claim no compensation
for the loss of "Justice" haute or of any other kind. The Justice was appurtenant to the
individual, not to the fief ; and, as Justices of the Peace, they have its honors and benefits,
in another form, better befitting the age.

The Seigniors may believe or pretend, that they have lost by losing their local offices,
and by the profits of escheats, which appertained, within their bounds, lo Seigneurs haute
justiciers. But, s apposing they were ever possessed of these, which, in the ninjority of fiefs
they certainly never were, they have gained far more by oflice in another shape, and by the
Crown waiving its powers as Grand Escheator to keep them up to the conditions of their
grants.

The Abbe Raynal says, (and he ought to have good information), that the French
government of Canada was purely military, all persons equally obeying an absolute rule.
But this is one of that elegant writer's very hasty generalisations. There were in the
Colony three Royal Courts, one in each cf the three Districts, each with a Judge and
Attorney General, and they administered the law at stated times, and there was an appellate
jurisdiction to the Superior Council, which sat every week. " The expedition and reason-
ableness of such arrangement for the distribution of justice is infinitely striking" — so says
Mr. Advocate-General JVlarriott (P. 72). That the military, and more often the fiscal,
usurped the civil power is very probable ; but the French government certainly planted
here the germs of law and order, and it would take a great deal to convince me that the
obsolete barbarities of the haute or any other feudal jus/ice, that is the mediaeval adjudging,
— not "justice" in either the ancient or modern sense, — ever existed in Canada.

PAGE 24, LINE 45.

This is notorious; but I should not have stated it, had it not been in evidence before
the Commissioners. See the testimony of Mr. Duiiscomb and others.

PAGE 25, LINE 6,

VVilh, of course, the exception of the few fiefs, principally dependant ones, under the
custom of the Vexiii le Francais. But even then, there is no fine on death of lord. (.)f
course all these fines are bad in priticiple ; but I am satisfied that it is not they that are the
principal, or even a considerable secondary cause, of the backwurd condition of the country.

PAGE 25, LINE 13.

In a valuable paper by Mr. Webster, (Report, &c.. No. 99), it is very clearly laid
down that one inflexible rate will not fit the justice of every case, and that, to commute
fairly the Ms et ventes, an average ought to be struck in every seigniory.

Nothing can possibly be more conflicting than the eviBence on the frequency of muta-
tion of the witnesses before the commission. In some seigniories, it appears, the lods et
tien/es are one half the value of the cens ei ren/es ; in others double. In some the muta-
tions are stated to be not more on the average than once in twenty years; in others much
more frequent. This shows the inapplicability of any general laiv of commutation.

;fore

the
l)f

the
itry.

lutc

lula-

PAGE 26, LINE 17.

What I mean is, that the cens, being already an annual rent of preferable security,
may be left as an annual rent ; and that the capitalising it ia not at all essential to the
commutation of the arbitrary incidents of the tenure, lis amount may be open to litiga-
tion, but its form needs no improvement.

PAGE 26, LINE 25.

I find, on enquiry, that I have understated this case. I am assured, that, up to this
moment, there has not been a si?ig/fi commutation in tliat seigniory.

It may pcrh«ps be said, that this is an exceptional instance, the church being, here as
everywhere else, a most liberal and placable landlord ; and that, consequently, the bur-
thens of the tenure are less felt. But commutation goes on rapidly in the city, under the
same Seigneurs. And there is ai. other instance precisely the reverse in ownership, of a
rural seigniory. That of Beauharnois was bought liy an individual, and re-sold to a com-
pany, purely for the purposes if profit and commercial speculation. Large sums were ex-
penJed with a view to returns, and it is to be presumed that the agents in charge of it
made as much of it as they fairly and liberally could, and that they were desirous to com-
mute. But Mr. Wakefield tells us, (Report P. 205), that but one application was made
to him for commutation, which was withdrawn ivhcn it was explained that commutation
meant buying out the seigneurs at a fair rate by arbitration. At d, I learn that now, in
the course of about thirteen years, out of some two thousand six hundred censitaires, but
three have commuted, two for landes or farms, and one for an emplacement or building lot
in the village. And in this seigniory, as in that of the Two Mountains, commutation is
compulsory with the seigneur and optiotial with the censitaires ; and the value, if not mu-
tually agreed, may be fixed by arbitration. Two facts like these are worth a thousand
declamations against the seigniorial tenure.

PAGE 27, LINE 7.

Since this page, and also the note to it, page 66, were printed off, I think I have made
out pretty satisfactorily the history of the introduction of the phrase " free and common
soccage" into a country where such tenure was'never known, and of its application to one
altogether different.

In the early part of the seventeenth century, when the French and English began to
settle this continent, the Monarchs of both countries seem to have entertained no idea of
fostering the allodial and republican principles, but rather of establishing Provinces in
which their own authority should be reflected and their power augmented. The principles
of settlement were essentially monarchical and feudal, and the grants Avere extensive, con-
veying, mostly to great lords or companies, semi-royal powers, such as the Hudson's Bay
Company have yet, and such as were generally possessed in England l>y the barons of the
century preceding, and even later in other European countries.

The King of France granted all his land en fief noble, and, specially in a few of the
grants, and generally by edict applying to all, directed the terms of concession to settlers,
and established that the whole phould be ruled by the Custom of Paris, which was the best
known and most predominant of the feudal customs in France, and furnished the most com-
plete code for the guidance of the Courts of Justice.

The feudal system remained nearly unimpaired in France until the Revolution : and in
this Colony for the hundred and thirty-three years which intervened between the first grant
of a Seigniory and the conquest of Amherst, it seem to have suited the genius of the
people, to have prevailed universally, and to have occasioned no discontent.

But, when the first grants on this continent were made by Elizabeth and James, the
feudal system w'as giving way in England, and its mitigation had been, from the tine of
the grand father of the latter, a part of the policy of the Crown, and had been that of the
courts of law from a much earlier period They therefore, while making great grants to
be held of themselves by fealty, deliiied the least offensive feudal tenure ihal was to be
found, in wiiich all sub-grants were to be made ; and that was not, generally, free and com-
mon soccage as known in England; for, strictly sptaking, there is no such thing, there
being as many customs of soceages as of copyholds; but a specific one, namely, the free and
common soccage of the Royal Manor of East Greenwich in Kent, which furnished a definite
standard and a rule, in the same way as the Custom of Paris did for the French. And it
ie to be remarked that these two feudal tenures resembled each other in the most mHtcrial

■1-

7(i

things of all ; namely, in the absence of the military ineiilentH, and of wardship of minors ;
and they follow in those respects nearly the same laws, whether Teutonic or Roman in
their origin.

But, from tliis point, tlie histories both of the Parent States and of the Colonies
diverge most materially.

In England, the enforcement of tlie grievous incidents of the feudal tenure, from which
the soccages were exempt, was one principal cause of the civil war ; and about forty years
after the hrst settlement by charter of the English on this Continent, (hey were practically
abrogated by force, and a few years after, in ] 6()<), were formally abolished by law, and the
exemptions of the soccages applied in those respects to other lands in feudality.

At the same time, the nature of the emigration was quite different in the English
Colonies to what it was in the French. In the latter, it was priestly, military, and aris-
tocratical. Soldiers, Jesuits, !>ulpicians, and adventurers in search of short roads to wealth,
were the priacipal ingredients in Canada From England it was the mercantile class ;
the persc(;uted Puritan, Calliolic, or Quaker ; tlie soured loyalist, the fugitive regicide ; but
in the mass, the resisting and republican spirit prevailed, and it was deeply imbued with that
prejudice in favour of the allodial tenure of the earlier Teutons, which, to this day is in-
herent in the Englisli nation, who alone preserved it to any considerable extent when
feudalism was predominant.

Hence it was that, while France lost her Colonies by conquest, England lost hers by
revolt ; tliat for one himdred and thirty-three years, the class that came here found feuda-
lism congenial to them ; and that during the one hundred and seventy-six years which elapsed
between the settlement of Virginia and the recognition of independence, the grants in the
British colonies were all practically allodial and in frank tenement, all attempts at esta-
blishing feudal rights by manors or seigneuries failing to be operative against the spirit of
the people ; until, after the revolution, most cf the States formally declared that the tenure
of lands was allodial and not feudal, tlius liarmonising the theory with t\v tice.

And thus it was, that over all the British settlements, the term " free ain. ommon soc-
cage" got to mean ivhat it never did mean in England, nor does mean at this day ; namely
freehold of inheritarce, or tenancy in ancient demesne, held directly of the state by muni-
cipal obligations, and mediately and feudally of no one whatever, an aleude a^ the Custom
of Paris calls it. And in this new, inaccurate, and conventional sense, it has even crept
into one or two Acts of the Imperial Parliament relating to the Colonies, and was and is
applied in Canada to all grants not in feudality ; ivhlch, equally effectually, and more accur-
ately, might be designated as franc aleu, or "freehold of inheritance," which are exactly
the same thing.

PAGE 27, LINE 22.

The prototype of this conflict will be found in a case of which 1 know not the issue,
stated by Marriott, P. 96. A thousand questions will occur in every particular of detail.
" The Canadian inhabitants readily enough embrace the protection of the laws of
*' England, when they find they make for them. There is something very whimsical
" in the case of M. St. Ange, which I have seen, as stated upon great authority, and it
" shows the motley mixture of French and Eaglish laws in the province, and the
*' confusion resulting from the uncertainty of them, and the want of a regular settle-
" ment. Mr. Grant purchased the estate of a minor, Mr. St. Ange, the former a
*' British settler, the latter a Canadian. Mr. Grant, iiowever, having seen the estate, and
** paid a part of the purchase money, which was very considerable, upon a view of the
" estate found it inferior in value to his expectations by one half. He was sued for the
" remainder cf the money, and pleaded the civil law of France, and insisted that he
" was intitled to a restitution in integrum on proving the true value of the estate to
" be only one-half. The Canadian insisted upon the laws of England, and a specie'
" performance of contracts, on the ground of the rule of tlie law vigilantibus non
*\ dormientibus succurrit lex."

PAGE 28, LINE 27.

" Intestate personal property is equally divided between males and females ; but a
*' son, though younger than all his sisters, is heir to the whole of the real property.

•'■' A woman's personal property, by marriage, becomes absolutely her husband's,
" which at his death he may leave entirely away from her ; but if he dies without will,
'* she is entitled to one-third of his personal property, if he has children j if not to
** one-half. In the province of York, to four-ninths, or three-fourths.

,but a

and'd,
t will,

lot to

<< By the mariiuge, tlic husband ia iibsolutr-Iy master uf the profits of the wife's
" land during the coverture ; and if he has had a living child, and survives the wife,
** he retains the v> liole of those hinds, if tlicy arc estates of inhcrilantc, during his life :
" but the wife is entitled only to doivcr,or one-third if she survives, out of the husband's
" estates of inheritance • hut this slic hua ivhcthcr slic haslind a child or not.

" But u husband can be tenant by the courtesy o( the trust estate of the wife,
** thougii the wife cannot be endowed of the trust estates of the husband. 3 P. Wras.
" 229." Christian's Blackstonc, Vol. 1 .

PAGE 28, LINE 2.

This principle is simple enough in such a case as that I have named, but, like all
others, it branches out into the greatest com|)licity in its applicali'm. The case of Bough-
ton V Boughton is an instance. It has just been decided by appeal in the IIou^c of Lords.
A bequest of accumulated rents and profits in trust for testator's nepliew's sons, on
reaching the age of tAventy-five, was "voided for remoteness," because it wcul further than
the law allows in time, i'hat is, it would have been good if the limit had been twenty-
one years.

The next portion of the decision is important and comprehensive, and as it can be
very little, if at all, known in this country, I give it in full as tlie words of the Lord Chan-
cellor are reported.

" Tfhe next question was, whether the real estate was to be applied to the pay-
*' ment of the debts, legacies, and annuities equally with the personal estate; and to
*• that question his lordship applied the rules as stated by Lord Eldon in ' Bootle v,
*' Bluiidell', (19 Vesey, P. 517, et scq) to thceflcct that personal estate is first liable to
*' debts and legacies. It is not suflRcient that the real estate is ciiarged unless the per-
** sonal estate is discharged. The onus is on tlie party claiming exemption of the
*' penalty to prove tiiat it ivas so exempted by the tesiator. In this case, the testator
*' bequeathed his lands, tenements. Sic, and all his personal estate, to trustees ; the
•* same persons whom he appointed his executors, upon trust to receive the rents and
" profits, and to retain thereout ten pounds a year for tlieir trouble ; and then, upon the
■*' trusts (before stated), and then by a codicil, he recited that he had by that will given
*' legacies and annuities, and directed his trustees to divide his real and personal
*' estates in tiie events in the will mentioned (as before stated). Then by the codicil
*' he directed the trustees to pay out of the dividends of his personal estate, payable to
" each of his nephew's sons, fifty pr)unds to a diarity therein mentioned. There was
' " no charge of debt on the real estate. The question was whether the annuities and
*' legacies should be paid out of tlio renl estate while there was personal estate."

" It was conceded in the argument, that as certain legacies to charities were
*' directed expressly to be paid (jut of the personal estate that afforded an inference
•* that the other gifts were to be paid ' ut of either estate. Tiiat direction was a pro-
" per precaution, as the charity leg.icies, if made payable out of the real estate, would
" fail. Both estates were vested in the same persons to pay debts and legacies, and
" then to vest the surplus, &,e. There was no expression in the will to prevent the
" operation of the ordinary rule, as laid down in " Bootle v Bluiidell." It is clear,
" the testator never contemplated a sale of his real estate. Could it be intended by
" him that it should be subject to legacies and annuities 1 His Lordship, after other
" observations, said this part of the Vice Chancellor's decree should be varied. Look-
" ing at his judgment, as reported in Collyer, he observed " Roberts v. Walker,"
" and other cases were referred to ; but in all these there was a direction to sell the
" real estate ; and so there was in " Dunk v. Fenncr" (2 Russell and Mylne, 557),
*' in ' Johnson v. Woods' (2 Bevan, 409), in all which the testator made one mass
" of his property, and of course it was all equally subject to his debts and legacies
" The land here must be held as liable, so far as it is ciiarged by the will; but as to
" the other legacies it must be held to be discharged, according to the rule in ' Bootle
" V. Blundell' before mentioned."

Any one may foresee that when the English principle of discharging the realty out of
the personalty, and the French one of treating the land as a chattel and paying all debts,
simply in proportion of the inheritance, and dividing the surplus, come into conflict, as they
will do, when the personal estate is to be divided by one law, and by the real by another,
the locus in quo of both being the same ; and when lands devised and held by the English law
are burthened by the French law ; difficulties will arise even greater than that of partition-
ing in the French mode, an estate charged with dower in the English. Whenever the

'ii

]■

country is ricli cnouzh to aflford it, there will be a glorious crop of litigation, and lawyers
will be as plenty in the Townships as wolves and wild cats are now. In the mean time, it
is only an act of common prudence in any one possessing lands in soccage, to make his
will, and either charge them with, or discharge them of, his debts and legacies.

PAGE 30, LINR 9.

The most important distinction is compendiously laid down by Blackstone, B. 2, Cap
12, S. 2. The Unman law, at least so much of itaH is oxtaut, knows no distinction of sex
in the first degree, and indeed generally not in any other. " Brethren and Sisters were
allowed to succeed to equal portions of the inhcritaiicn."

Blackstone, (B. 2, C. 14,) thinks the Danes in the lime of Canute admitted the
females to a share of the succession ; but, in morn recent times, though still very ancient,
equal partition among the males to the exclusion of the females seems clearly established.

PAGE 30, LINE 38.

Tliis dislitiction hciwccn par teles ixm\ par souches is, I believe, unknown to the Eng-
lish law of distribution, which follows the latter ; but it is perfectly intelligible. Thus, if
A. and B. two sisters, have, the former two children, and the latter four, and, being de-
ceased, these children iniierit the estate of llieir mothers' father ; if they take par ietes each
takes one sixth ; but if they take pur souc/ies, each family subdivides an imaginary previous
division between their parents, and the children of A. will each receive one fourth, and the
children of B. each one eighth, bee Blackstone, (B. 2, C. 14.) The Anglo-Latin phrase
is^er capita and per stirpes,

PAGE 31, LINE 38.

" En cas de vente, I'acheteur peut rcsilier les baux, soit pour louer a d'autres, soit
" pour habiter 'iui-nieme."

" Le vendeur doit des dt'dommagements a ses locataires."

" Les dcdommagementE varient, etc."

" La clause d'enlretcnir les baux, mise dans la vente, et aceeptee par la vendeur,
" l^mpeche dc les romprc p'"".>- louer a d'autrcs. mais non pas occuper lui^meme. Dans
** ces cas, il doit les dedoinmagements." Instructions Facile sur la Conventions. Ed.
4, P. 213, Book 2, Titre 23.

I need not translate this, as I have given the substance in the text. The distinctions
or rules for the determination of a simple lease or bail are numerous and complex ; but all
having relations, not, as in the English mode, to Iho tpim of the contract itself as limited by
years, but to the varying condition of the party v lio inade it.

It is very difficult for an Englishman on corning here to imagine, that a lease shall
not convey to the grantee all the right or dominion tliat the grantor possessed for the term
specified, at the time of its making ; and its occasions equal surprise to one educated in
the Civil law, that an agreement of occupancy should survive the substantial title to
which it is appurtenant, or be other than a personal contract for the time that the grantor
har in his disposition the realty.

But, though, this is the common law, or rather the common principle of the contract,
the Bail Emplnjllotique (from the Greek emphumi, a verb, inharco, to stick to, to be
inherent, at least so I presume,) is the exceptiors. This lease is for any term not exceeding
ninety-nine years, and survives the accidents of the subject of it. It is something between
a lease for years and a demise for a term, and " savours" strongly "of the realty j" so
strongly that it is doubtful that its mutations aro not equivalent to a sale in uncommuted
rotures, carrying lads et ventes .This objection, however, does not apply to commuted pro-
perty, and if the reversionary and contingent interests are extinguished there can be no
difficulty in creating it, especially since the establishment of a Registry.

De Ferricre v. Bail a vie expressly says that wherever there is any thing of the emphi-
t^otique in a lease, as the addition of a term of years to a life, it carries seigniorial dues.
The coutume. Art. 149, expressly says, that a lease for ninety-nine ycjirs or for " long
years" is subject to retrait ; which of course implies lods et ventes. Long years, the com-
mentator says, mean any term above ten years.

The reason assigned, is that such a lease is in effect an alienation, becomes an im-
moveable, subject to dowry and hypotheque, which, if it it were but a personal estate, it
could not, and is inherited as real property. In this, the French law differs remarkably
from the English, which treats a lease for years, even for a thousand, as only a chattel
interest.

so
uted
pro-
} no

long
:om-

im-

e, it
lably
lattel

PAUE 42, LINE 28-9

Erratum. For **' personal property" reud " real property." The quotation will
•how the error.

PACili -il, LINE -11.

The meaning of the term statute is rather different in the civil to what it is in the
English law. In the forii.er, it means anylhiii'^ wiiich is appointed and made law by com«
petcnt authority. In tlie latter, it ia mere iy apphed to what is positively enacted by
the estates of the realm by assent, expressed in I ailiameat, and matter of record. The
French edict approaches nearer to the Eiii>hsh statute ; tlie latter in the civil law includes
what the English would ruthcr call rules and principles of law.

PAGE 34, LINE 44.

Here it is usually an allowance in kind — that is, food, shelter, clothing, and luxuries
of defmitc amount. The specifications of these would be worth preserving They will bo
as curious in time, as showing the habits of the people, as the Paston letters, or the Nor-
thumberland household book ,or Pepys's private memoranda cf his tavern and |)layhouse
expences, and really of more importance. There is nothing Hhich the best historians
labour at more anxiously and laboriously, than to get at the real condition of the mass of
the people at any given time.

PAGE 36, LINE 32.

And, immediately afterwards, they passed an Act declaring that bastardy of pre-nup-
tial issue could not be cured, thereby depriving the eccksiastieal courts of a most import-
ant and lucrative jurisdiction. Previous to this, bastardy was scarcely a bar to the succes-
sion, as in the great case of the Conqueror himself.

The Courts of Equity were in their origin ecclesiastical and continued so until the
Reformation. The law they administer, is sui)stantially the civil law. varied of course, as
in the Coutumc de Paris, by its application to the native and local customs and enactments.

PAGE 38, LINE 9.

Fifteen to twenty miles from Montreal, on the main roads, in almost any direction,
good farms of old clearance, with adequate buildings on them, may be pui chased for six
hundred pounds currency, payable in ten years, or some such similar arrangement, for
estates are usually sold for the benefit of minors, who receive their share as they arrive at
majority. An annuity of fifty pounds sterling for ten years with interest legally at six per
cent, and practically at least at three times that, represents' a very small sum, and would
afford irresisiable inducements for investment, if there weie an intelligent body of tenant
farmer? with adequate capital, which there is not ; — whoever has capital buys, and often
impoverishes or ruins himself in so doing. I do not know any part of England in which
such an estate would sell for less than JL'25 sterling an acre, cash; in most counties, if at
all accessible, it would bring double that. It is on record before the Ccniniissioners on the
Tenures, that a little further in the rear, many concessions of this description have been
sold from the poor censilaires for arrears of cens and costs, not exceeding X'20 sterling for
the whole. If such cases are those of sickness in a place when there is not the means of
hiring labour they arc atrociously cruel ; but if, under ordinary circi.nistanees, a man can-
not keep his family, and pay a rent of from threepence to sixpence sterling an acre out of
his farm, the sooner he makes way for a more industrious man the better.

'i he Canadians are by no means the indolent and useless class which Raynal, perhaps
with a pardonable patriotism, anxious to extenuate the loss of tliat gn;at empire dignified
in anticipation witli tlie title of /a Nouvclle France, (extending west and .north of the Alleg-
hames from the snows of Labradcjr to the tropical heat of Louisana, represented them.
Besides their accomplishments as boatsmcn, pilots, and raftsmen, they arc skilled in the use
of the saw, the axe, and the spade, and work "with a will," when tliey have work to
which they are used. They are excellent pioneers in new settlements, and if ihey are not
skilful farmers it is because they have not been taught. 'J'hey will not m ork steadily
at the plough, day after day, for a long determinate series cf hours, as persons from home
will do, but I sec no reason to think that tliey will not do so in time. Their religious
feasts, as in all iioman Catholic countries, interfere a good deal with spring work, and the
severe fasts of Lent, of late years much modified, do not prepare them for the arduous
labours of the field, which at seed time admit of no pause or interval; especially since the
fly has caused the almost total abandonment of autumn sowing.

'ft

, 'ii

If*'';;'

Still, the very low price of lands in this /-ectibn of the Province, eannot be attributed
altogether, or even largely, to the distance from markets for produce. The cost of the
conveyance of a bushel of wheat or peas from Montreal, is not so much greater than from
* a Qistant part of Scotland or Ireland to the English markets ; and, like the people of Ulster,
there is nothing to hinder cultivation by the Canadians, of hemp and flax, of the value of
which at the port of debarkation the freight is no element of any importance. The diffi-
cuity is in their want of habits of combination for economical purposes and of mutual sa-
crifice for their own and the common good. They want roads, and the value of land
decreases at an almost incredible acceleration in the ratio of the distance from a port of
shipment. They will not submit to tolls if Ihey can help, or unite to macadamise roadsj
and bu'.id bridges. And iiere may be noted the mischiefs of their law of partition, and the
want of a resident, opulent, and influential gentry. In England, within my memory,
almost all the rural roads have been made, that is, made good and passable^at all times, by
the people ; but in spite of them, often with their most strenuous opposition. Liberty
with an Englishman does not mean the liberty of doing nothing or of doing merely what
be likes without reference to the common good. England is divided into counties, each of
which has a b( trd of Quarter Secsions, consisting of Justices of the Peace, mostly persons
of fortune, not elective, but named by the Lord Lieutenant, a man of high rank, a nominee of
the Crown. This body builds and repairs the county bridges, for which it levies a rate
on c'l the real property in the county. The roads are made partly by trustees, under
local Acts '' Parliament, who borrow money on security of tolls, as in the island of Mon«
treal, by Ordinance of Lord Sydenham, who most beneficially, as it is now generally ad-
mitted, though sorely opposed at the time, copied this portion of the English system ; but,
at common law, each i)arish is liable to keep in repair its own ancient roads, either by
assessment or by statute labour, and every parish T.hich does not do so is liable to be in-
dicted before the Justices ; the indictment to be removed, if the appellants please, before
the Judges, to be tried at nisi prius^ that is, by a commission, to be executed by a Judge
of the Superior Court, in the county, before a jury, who will find on evidence whether the
road is in good repair or not, or the bridge, if it be a pa*"' i bridge, for some have not been
adopted by the county ; and, ^rma facie, the parish is Oound to keep ii. repair its bndge,
as part of the road.

Without some machinery of this kind, it is no wonder that the Canadians do not make
roads and bridges, and that their property is under the tithe of its real value ; I doubt that
Ensrlisli farmers would have done better undci' the same circumstunces — without a gentry,
and a law to guide and coerce them.

I repeat, that the inhabitants of this country, of whatever race, must not compare
themselves with landless men from over-stocked countries, who do not possess an acre of
their own. To estimate their real position, they must compare themselves witli the class
whicft possesses farms in freehold of from sixty to one hundred and twenty acres, and who
mostly live in greater refinement and comfort than the seigneurs here. The manners of
the English yeoman of that class may not be so polished, but he is generally better read
and has more available wealth. The value of an estate of one hundred acres in England
may, in an ordinary way, be taken at thirty pounds sterling an acre, often at a great deal
more, and the stock, ca] ital, and means of cultivation .it ten pounds an acre i".ore. The net
produce, or increase of this by a ireeholder cultivating his own land, will not be, on the
average of years, lc£s than thr' hundred pounds a year. 'low few of our Seigneurs out of
their share of the succession ii ao thia'J Wiiere is the habitant \\\\o does 'i I am assum-
ing of each that they are unburtytened. And, I believe, the estimate I have made will
apply pretty nea ly to all the old settled agricultural counties of Europe, — Belgium, the
North of Ireland, and of France, and Germany, Sivitzcrland, and Lonibardy. In no part
of the world, williin iwciity miles of a port, is arable land of ancient tillage of so little value
us in Canada. TIk; fault is far less in the people tiian is commonly believed : it is in their
institutions, particularly their law of ;'iheritaiice.

P.\GE 43, LINE 29.

It may be presumed, that this was actually the law, as Masercs wns not a man likely
to be ignorant of it, or to mistate it. But as h** gives no marginal reference to any edict,
and, as I can find none but that tS 1715, I think it probable that it became law in this
way ; that, his Mnjesty having forbidden lineal or acreablc division of farms l)elow a cer-
tain point, the courts, followin;:; the l;nv of distribution, which was not generally altered,
looked to the equity of the transaction, and, being unable to divide by area, directed
all to be sold, and divided by produce; and thus the Ordinance and llin decisions together
iniidc the law. fhr, ii?e of the word "sons" for oliildrcn, i? obviously a lapsus fenncp..

PAGE 45, LINE 30.

Bowen*3 Act is exactly framed after the suggestion of Marriott, P. 93. The principle
is to take the old law as the common law, the English to be exceptional but voluntary, ant],
as the newer title, to be set up specially. It is to be regretted, that the suggestion was not
further carried out by codifying the French custom, to be set up as " the common law and
custom of Canada, as by Act of Parliament established."

PAGE 55, LINE 45.

According to what I can understand of the theory of the feudal tenures, which is not
peculiar to France or to the custom of Paris ; the object of the aveu et denombrement, the
setting forth the title with particulars, is to keep the grant alive ; and it was to prevent the
acquiring rights by usurpation against the Crown as Seigneur paramount, or against it as
pater familias of the public ; and was made at such frequent intervals as to bar prescription,
if any could run against the Crown ; in fact,, to preserve the feudal rights, and to prevent
the conversion of the fiefs into aleudes oi franc aleu noble.

It strikes me, that the question might be brought to an issue by a mode not yet
attempted, namely by an information at the suit of the Crown^ or by relator under permis*
sion of the Crown, in the Court of Escheats, under the 6 Geo, iV. In this mode, it might
be tried whether Seigneurs had fulfilled the conditions of their grants, and whether the return
under aveu and denombronent was sufficient to sustain their title, and whether it had not
Bschealed by malfeasance.

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