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Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely Included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc.. peuvent Atre filmte A des taux de reduction diffirents. Lorsque le document est trop grand pour dtre reproduit en un seul cliche, il est film6 d partir de I'angle sjpArieur gauche, de gauche d droite. et de haut en bas, en prenant le nombre d'images n6cessalre. Les diagrammes suivants illustrent la m^thode. 1 2 3 1 2 3 4 5 6 SOME REMARKS 17F0K TH.K '1' FRENCH TENURE OF "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 1 1 V 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- wp 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 H (■-'i >h ill: ■I ■V. :1! .11- 1' 1 (j «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 thrarian. 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 B I i M I ■•' i i-,*i 10 J, !; II 1; 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). 11 i 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 :1 u r !i 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. 13 W 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 in . i'lll- 14 I 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 u 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 ■*l' I; ■ti'l 4 16 I: Sr 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 17 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 C I i i :i;i ,-!i .< ! : ■ i 1» 18 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. 19 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 i At ' r I! 20 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 21 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? I; '. 'i^ lli i t~ t ■I 22 a i 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 23 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 J 'if 1 m i § %i '•.If 24 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. 25 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 • '.i ■:\\ if t'' D 26 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 27 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 ji I ■I 28 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 29 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.' 32 W •' 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 n 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 E •ii ■ '4'< u 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 by Ti 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 ,-? 38 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 m^ ??«!■ M -I .Tri?»""7«Pi";*.'_.I?^^'-' 40 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 41 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 ( 42 r 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- 43 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. i 44 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 : 45 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 I 111 46 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. J. 47 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 m m^ 48 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 49 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. G (•a 1 M' I m -M 50 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 1 51 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 ..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 71 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 I 72 m 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 73 "■ 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. K \l ■ i 74 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- 75 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 I s 11 ■1- !; 7(i f- 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 y- and'd, t will, lot to 77 << 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 i^ 'ii \^ 'n ]■ 78 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. by so uted pro- } no long :om- im- e, it lably lattel 79 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 80 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.. 81 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. la ass ho of read nd deal net the ut of sum- will the part •alue their KIN 13. ikely diet, this cer- 2red, jctcd ^thcr MoiUr«?:i! ! l'riiit< .1 by Ar^jimr ^c lUiirisuj.