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Mr. Speakeu: On bolialf of a number of propriotois of Soisniorii'S in Lower Canada, 1 appear bofore jou, to represent certain objections vvhicli thoy fuel themjielves justified in nrifin^f, to the further progress of the Hill, which has just been called up before this Honorable House. And I do not say anything extra- ordinary, when I say that I so appear with a ;zood deal of «;mbarras8inent, and even of regret. I am before a tribunal, certainly of an extraordinary — cetlainly also ol a very hi"h — character; and I have to contend against strong prepossessions and powerful interests. I have to speak on behalf of clients, few in number, and of extremely small inlluence in the community; and I feel that I labour under diffienlties of a peculiar character, as well fnnn the piiyiiical impossibility of speaking in both the languages used by Members of this Honorable J louse, as from other causes. 1 should bo nappy, were I able to do so, to address the House in both languages; but I know that those Members whose language I do not use, will be capable of understanding me ; and I trust they will feel that my failure to address them in their own tongue, proceeds from no disrespect. Another regret also that I feel en this occasion, is, that I am obliged to stand here alone. Tho season of the year, and the inditleient health of the learned Counsel — greatly my superior — who is associated with me, have preventeil him from appearing before you ; and no one more than myoelf feels how impossible it is for me to fill his place. But I have not felt that I had a right to decline on this account to give my services when required. 1 have not shrunk from the duty ; because, though I feel my inadequacy, I .Jso feel confidence in th-j fairness of tliis liigh tribunal. I believe that its members will listen patiently, honestly, and impartially, because of their high position, and in spite of the insignificance of him who speaks; and lam, besides, so convinced of the truth of what 1 have to say, that I do not believe I shall speak in vain. Let me say here, and say earnestly, tliat I ilo not stand here as tlie apologist for the Seigniorial Tenure. I have nothing to do with its merits, if it have any ; nor with its demerits, be they what they may. 1 am not hero the parti/.an of a system ; but the Advocate of individuals, whoso misfortune it is that their property is of a peculiar character. As their Advocate, I speak merely of law ; I have to convince you that these my clients are really proprietors, who have entered into contracts, who have rights recognized and guarded by the law, whicli rights this measure will most injuriously affect. When 1 take this position, I spaak under sanction of the Speech at the opening of this Session, from the Throne, and of the reply of this Honorable House. ! know that it is a position to wTiich every branch of this Parliament is pledged ; that it is admitted, that no rights of property must be disregarded, nor legal decisions of Courts set aside. Thus speaking then, under these sanctions, in spite of the prepossessions and interests against wiiich I have to strive, notwithstanding tho measure I oppose is introduced by an Honorable Member of an Administration generally understood to be strong enough in ihe confidence of this House to carry its measure's,— I still have confidence in the justice of my cause, and in this High Tribunal; 1 believe that I shall not labour in vain. I have to lay before this Hoiise and the country, facts not generally known. Much has been published to the world, since this subject was last discussed, which had previously been obscure. Several volumes have been printed, which con- tain the greater part of the titles of the Seigniories of Lower Canada ; and besiileis these, reports, in both languages, of anumber of iljrtVs which had never previously seen the light. There have also been published important extracts from the cor- respondence of high offlcers of the French Government, of the (iovernors and In- tendants in Canada, the Ministers of State, and even ofthe Sovereign. And it is my belief — my full and firm belief— that from these titles now first placed in a position to be uDderstood, these Arrets now first made known, this correspondence now first opened to historical research and legal deduction, a case can be made out, which could never before have \>een made out. I have not the vanity to hope that I shall be able to make out such a caKe, by meinly drawing niw arguments from old facts; but I havfl studied these volumes, us attentively as possible, and ns I believe none other over did Bludy them ; and it is upon this close cvamination that I found my opinion. Their contents are not arranged in order either of lime, or of place ; ancl the French and English versions are not cvjn arranged in the same order. This I mention, to show the difficulty of studying them ; and from no intention of impu- ting blame to those who compiled them. In going ovnr them, I soon found that to unJerstand their contents, it would be necessary to arrange them in the order of their dates ; and I have therefore so done. Thus arranged, I have carefully gonn through them all) and have ascertained with tolerable accuracy to what Seiijuiory each title refers. I think I have made out a nearly perfect list of them ; that I under- stand all the titles ; and I now say. that from this examination of the whole, and from the comparison of each part witn the rest, I have been forced to conclusions to which I never thought I should arrive, — to the conviction, that the fact in regaril to this question is that which lew of late years have believed. I enter into these ex- planations, because I may be thought to owe an apology to the H)usc for laying <2own sroiwsitions, for which those who have not studied the subject so carefully as myself are not prepared. If I fail to bring forward good reasoiis, on my head must be the responsibility. I believe tlere is no question of the truth of one projposition — that it has of late been held as the fixed tradition of the country, that the Seigniors are not pro- prietors — are not what an English lawyer would call holders of an estate in fee sincple; but are rather trusteesbound to concede at low rates of charge to all who applv to them for land. On this proposition alone, can the provisions of this Bill possibly be justified. If this be properly held, 1 admit that much is to be said in favour of it. If the Seigniors were originallv merely trustees bound to concede at low charges and reserves, it may follow that only a moderate degree of mercy should be dealt out to them. Still, even on that supposition, much may be said, owing to the peculiar position in which they have stood since the cession of the country. It would have been easy— and it is common — to object to the measure before the House on this latter ground ; for, supposing even that before the cession Seigniors were bound to concede without exacting more than a certain rent, or reserving water courses, wood, banality or any thing else, still it may be argued that for ninety-three years the machinery of such old law has ceased t") exist ; that the Courts and the Legislature and the Government have treated them as absolute proprietorsj'and thus have changed the quality, so to speak, of their tenure, and placed ihem in a new position. This being so, it has been argued, and I think properly, that it would be hard to fail to respect those rights of property which such a usage has established. My duty to my clients, however, and to truth leads me not to stop short at this argument. It is my duty to object altogether to the proposition on which it is attempted to defend the present Bill; and I do now distinctly deny the proposition, that the Seigniors are to be looked upon as trustees for the public — as agents bound to discharge duties of any kind whatever. My proposition, on the contrary, is, that the Seigniors are and always have been proprietors of real estate; that whatever interference may ever have taken place with reference to their property, has been arbitrary, irregular, inconsistent whh principle, and not equal in extent to the interference exercised over the property ol the Censitaire. The grants to the Seigniors were grants of the soil, with no obligation like that supposed; and though during certain periods, their property was interfered with, it was never interfered with to the extent to which similar interference took place in respect to the property of the Habitant. If the Seigniors weie not holders of property, there were no such holders ; if they were not proprietors, there were none who could consider themselves so. I am aware, that in this statement I run counter to tradi- tions of late currently held — to docinnes which are supported by the authority of men for whom I have the highest respect, and from whom I differ with reluctance ; but from whom I dare to difTi9r neve.-'heless, because I believe that I have looked more closely than they have done, or could do, into the titles and An6tn, which form the evidence on this subject. I neither reflect on their abilitj^ nor on their integrity ; I do not doubt the honesty of their conclusions ; but at the same time, I cannot help seeing that their doctrines were well f tted to obtain pofjulur credence, because it is always popular to tell tlie debtor that his obligation is not jUstly in- curred. I cannot resist the force of the evidence which has convinced me, that on this subject, circumstances have gi/cn currency to opinions which will be found on K examination to be as destitute of foundation, oaanytho most absurd of opinions ever vulgarly entertained. If the Sei;i;iiior8 be trustees and not proprietors, this much must bo concided — that theii capacity o( trustees must arise, cither from the incidents of tliu law in France before ttieir iirauts ; or from somethinj; wtiich took place at the time of making the grants — from something done here m the col,)ny, or by the authorities in France, before the cession ; or, laiUly, from something done since the cession of Canada to the British Crown. On all these points, I maintain that there is nothing to show the Seigniors to have been trustees, and not proprietors — everything to show that whatever intoifcrence was exyrcised over their property, was of an ab- normal character. As to the tenor of the prior French law, interpreting the subsequent grants in liOwer Catiada, I will net say much ; because, though addressing a tribunal, I am not addressing a body composetl exclusively of professional men, and ought not therefore to talk too abstruse law. I shall go as little as possible into details ; but, venturing as I do on a position which pro^ssional men will and must attack, it is necessary for me to state, in some detail, my reasons for the conclusions to which I come. It would be a singular thing, conadering what we know of France, if in the seventeenth and early part of the eighteenth cenu'ries, any idea should have been entertained by ihe French Crown, of creating a body of aristocratic iand-holders, as mere land-granting trustees for the public, especially for a portion of the public liien considered so low as to be unworthy of attention. For ages, indeed down to the great revolution in the 18ih century, the doctrine which prevailed in France, was a doctrine which made public trusts a property ; not one which made of pro- perty a public trust. The Seignior who was a Justkier, was the absolute owner of all the many and onerous dues, which he collected from the people subject to his control. The functionaries, even, whom he employed to distribute the justice — such as it was — whirh he executed, held their offices for their own benefit — bou$;hr. them and sold them. Trusts were then so truly property, that the majoiity of the functionaries of the very Crown itself possessed their offices as real estate, which might be seized at law, sold, and the proceeds of the sale dealt with just as though the offices had been so much land. The whole system regarded the Tiirone as worthy of the very highest respec t; the Aristocracy as worthy of a degree of respect only something below that accorded to the Crown ; the country population, as wor- thy of no respect at all. Was it at a time when public trusts were property ; when the masses were only not slaves ; when we must suppose that the French King, about to settle a new and great country, would naturally seek to iotroduce there something like the state of things which prevailed in the old country ; was it, too, when the King was here creating Seisniors, with the prerogatives of Hauls Justi- ciers, and raising some of them to higK rank in the peerage ; that he gave to these his grantees, what only purported to be property but was really a public trust, and this trust to be executeu in behalf of a class lor whose welfare he cared next to nothing ? The idea is natural to us ; because vre associate the power of the Crown with the happiness and welfare of the people governed. We are so sensitive, that we shrink, when speaking of the c' asses of old called the lower orders, from calling thorn by that name ; but this was not so then. Tlien the masses were emphatically the lower orders ; or rather they were hardly an " order " at all. This was tlie state of things here, at the time of the making of these grants. Now, under the French system, there were then four principal modes of holding real estate. It was often held under certain limitations. All who did not hold by the noblest and freest tenure, may be said (if one must use a modern term) to have held in trust ; not, however, in tmst for the behoof of those below, but for that of ihose above them. Certain property, in France and in Lower Canada, was held in franc aleu noble — free land held by a noble man — held by a noble tenure, of no one, and owing no faith nor feudal subjection to any superior. There was again another kind of property, held in franc aieii roturier — a property incapable of the attributes of nobility, but in other respects free. A third description was that held in fief or sdgneurie ; and lastly there were lands held en roture or en censive. But all these kinds of property were alike real estate, held by proprietors. The holder m franc aleu nohle hcM hy iIib most iiuK-porideiit tcimro possiblo, a tcnuro wliicli admitted of liis disposirm ol his laud in wliatevor way lie pl(>a.sed. The holder in franc ulen rcturiir liuld as tiroly ; with this n'servation only, that ho could not grant to iiifonors, rotiiiiiim; to liim.sHlfCeiidal Kiiporiority. Tlie lioldnr en Jiff wait bound to his superior, and coiiid ;^rant, (either en fief or en roture,) if ho pleased, to inforiorH under him ; and the holder f.i roture or cenaive Wiis bound to his aupe- rior, but could havo no inferior below him. As to tliB essential churador of the contract involved in the grantin>r of land en fief, I refer here to one authority only, that of Jlerve^ the latest and perhaps most satisfactory writer on the whole subject of the Seigniorial Tenure. In his First Volume, on page 372, he says, speaking of this contract : *' il doit ctre dffini une •* concession faite d la charge iVuixe reamnaiasance tmijonra subsislante, qui doit *'■ ae manifest f.r delamaniire convenut^'' ; " it must bedelinedto be a concession " made subject to the charge of an always subsisting aclcnowle(l<'mont, which must *• be manifeated in the manner agreed upon." This, then, is the essential of the contract ; a superior, holding nobly, grants to an inferior, who admits his inferiority and acknowledges it— how ? In the manner agreed vpon. The stylo of acknow- ledgment is the creature of the agreement between the parties. Here, again, is the deffnition of the holding d titre de ccna, taken from the same author, Volume 5, page 152. " C'eat le bail d'une portion de fief ou d^aUu, d la charge par le prenenr *^de conaerver et de rectmnaitre, de la manitre convenue, un rapport de sujelion tcu- " joura subsistant entre la portion concedee et celle qui ne I'est pat, et de jouir *' roturierement ; " it is the grant of a portion of a fief or aleu, subject to the charge " upon the taker, of maintaining and recognising, in the manner agreed upon, a " relation of subjection ever subsisting between tlie part conceded and that not •* conceded, and of holding as a roturier." The holder en roture was a proprietor, but he must always recognize his chief — and this, as a roturier or commoner; while the holder en fief held as a noble, fioth tenures were creatures of contract. In some parts of France one Cuaitom, in others another, prevailed ; and in the silence of contracts the Customs governed the relations batween the pailiea. The Custom which prevailed throughout Lower Canada, is well known to have been the Custom of Paris ; and under it, as indeed under most Customs, the grantor of land was at liberty to grant on all kinds or conditions, and the appeal was only made to the regulations of the Custom in the silence of the contract. Particular Customs prohibited certain conventions; but in general men granted, whether en fief or en censive, as they pleased, only observing not to transcend whatever might be the conditions of the Custom under which they contracted. 1 admit, of course, that during a long period of dim antiquity, neither land held en fief not land held en cenaive was really and truly property. In those days, such grant of laid was merely the grant of its use ; and the holder could not leave it to his children, or in any other way dispose of it. But in process of time it became the rule, that holders of land en fief could part with it oy will, or by any contract known to the law, — by sale, lease, grant d cens or d rente, or in any other way. If the holder did thus part with his laiiu, the Lord of the land might claim his certain amount of dues ; if it was a fief or part of a fief that was sold, the buyer had to pay a quint. But. I repeat, subject to these payments, the holder could sell his fief or any part of it ; only in the latter case, he could not make such part a new fief. The purchaser would merely become a co-proprietor with himself. Indeed, subsequently, still further relaxation came to be allowed. Within varying limits the holder en fief became entitled to alienate, without dues accruing to the Lord. According to the Custom of Paris, this point was regulated in a very precise manner ; the holder of a fief being at liberty to sell, grant or otherwise alienate, two thirds of his fief, if he only reserved the foi to himself— that is to say, if he held himself still as the feudal . jnant or Seignior of the whole, and retained some real right, large or small, over the land alienated. He might take the valuo in any way he pleased, provided he only retained something payable annually as a token of his feudal superiority, and provided also he did not dispose of more than two thirds of his holding. In Brittany and elsewhere, the whole of this system of disposing oi fiefs was unknown. There, the Seignior could not sell part of h\sfief. He could either grant it nobly or en roture ; but could take only a small cash payment ; and, supposing he had ever granted land at a particular amount of rent, ha -*M novor aftorwanlfl ^rant It at a Ikms ront, anil this for tho rooAon that tho interest of his Superior LonI in the land would he ailocli'tl by any reduction ul' thu amount of its juMrnanent rent. Thiit Siipuiior Lord, tliereforu, had thu riglit to demand that tho Seignior holdiiii^ of him nhould not make away hj^htly witu his property— that its value nhould ho kept up. No lawyer will deny, liowevnr, I believe, that by the law of Franco »ho obligations o.i holders of land grnnteil enjiefviow in the interest of the lord and not in that of the inferior. It wiis not then the fashion to think of tho inferior at all ; but only to take care that tho b ti^^iiior was neither cheated by his feudal Vassal, nor by his Cetuilaire. Thu same [trinciple thus huUl in France, was equally recognized in England by Magna ('harta; which was to u great exttsnt idoHtical whh thu Custom of Normandy. One of its articles provided, that no free man should grant away so much of his land, as that enough should .lot be left to enablu him to fuUil all his duties to his lord. It was the lord who made this contlition ; who claimed fium his vassal the letention oi'so much land as was necessary for the service of the lord. In those days there were no objections made to wide spread properties in the hands of individuals. Individuals held most extensive possessions ; and cultivated them by dependants of all grades, for their own benetit; not at all for that of their flubordinutes. Thu higher classes were regarded, to thu all but utter exclusion of tho lower. I repeat; it would have been strange, indeed, if the Crown had created liero a class of nobility, and granted them large tracts of land to be held by a noble tenure, intuiiding ail thu time that they should be mere agents for a class below them, — a class in those days hardly in thu least cared for. I pass to the consideration of tho terms of tho grants made in Canada, and of the law and jurisprudc tce of thu country, from its settlement to the cession in 1760. The period being a long one, 1 divide it into three [tarts j the first ending with 1603, when the Company of New France, or of tho hundred Associates, was dissolved ; tho second, from that period to the passing of the Arrets of Marly, registered in 1712; and the third, from 1712 to the cession of thu country to tho Crown of Great Britain. If throughout these periods there can bo found any thing adverse to the.se antecedent dispositions of the French law, as to this matter, I am greatly mistaken. In 1627, the French Crown, after several previous attempts, resulting in nothing, to settle Canada, created tho Company of New Franco with extraordinary prerogatives. The terms of the Royal Edict creating this Company, are to be found in the Second of the Volumes lately laid before Parliament, on tho 3rd and follow- ing pages. By it the King granted in full property all the country of New France or Canada. 1 he document sets forth : — " IV. And for the purpose of repaying to the said Company the heavy " expenses and advances necessary to be made by the said Company, for tho *' purposes of the settlement of the said colony and the support and preservation of *' the same. His Majesty will grant to the said hundred associates, their heirs and ** assigns forever, in full property, justice and seigniory, (en toutc propriete, Justice " et seigneurie,) the fort and settlement of Quebec, with all the country of New *' France called Canada, * * * together with the lands within, and along the " rivers which pass therein and discharge themselves into the river called Saint ** Lawrence, otherwise the Great River of Canada, and within all the other ** rivers which flow therein towards tho sea, together also with the lands, mines " and minerals, tho said mines to be held always in compliance with the terms of " the ordinance, ports and harbors, rivers, streams, ponds, island' and islets, and *' generally all tho extent oftho said country, in length and in breadth, and beyond " as far as it shall be possible to extend and to make known the name of His " Majesty, — His Majesty merely reserving tho right of Fealty and Homage, " which shall be rendered to him and to his royal successors," «&c. " V. It shall be lawful for the said associates to improve and deal with the said " lands as they may see meet, and to distribute the same to those who shall inhabit *' the said country, and to others, in such quantities and as they may think proper; " to give and grant to them such titles and honors, rights, powers and faculties, as " they may deem proper, essential and necessary, according to the quality, condition " and merits of the individaals, ard generally under such charges, reserves and con- \ I 8 " (litioni aa they may think proper. But novcrtholtB«, in ca«o oftho oroctionof any " ilucliy, murquisate, county or barony, llin Majesty's letters of conlinnation Hhall " be ohtninutl, upon application ol liifl Hnid Kiniiuiuco tlie ijrnmi-master, chief anil " general HU|)erintondeiit of the trade and navigation of Franco." Such, then, were the lorm« of the grant oftho whole country, made in 1G27, to a conitnercial Company; a Company created with moat nxtraorilinary i)rivil«i5e8 ; empowerod to maku war or poaec ; to have fortreflses ; in Jact clothod with ull iho uttributcH of Bovereigniy. All limitations upon tlieir {wwer ol alienation, which might appear to be made by the Custom of Paris, or otherwiac, were dinpenaed witli. They were to grant to anybody and everybody, on just auch terms us they pleased. There had been some granta of land in Canada, made before this period ; hut none of them Heem to be in force ; so that I begin with this grant to the Company as affording the key idea, which interprets and governs all that follow. The Com- pany grunted, under this ample charter, a conHiderable number ol Seigniories between the years 1628 and 1663. By examining the printed title*, and adding aeveral others, the existence of which 1 have ascertained elsewhere, I (ind in all Hixty-one grants enjitfoi this period, of which sixteen are either duplicates or have never been taken possession of, or have been forfeited. Forty-live are thus still in force, and of these thirty-hve are to be found in the Volumes lately laid before this arpents, according to the estimate of a gentleman of great accuracy in these matters; and as all the lands held in Seigniory amount to some ten millions of arpents^ the quantity now held under grants Dy the Company is not far from one third ol the whole. Of these grants, three contain also grants d lUre de cena ; and one of these is the ffrant to Robert Giftard, of the Seigniory of Beuuport, dated the 15th of January 1634, and to be found on page 386 of the First of the Volumes laid before this House. It aets forth that the Company " being desirous to distribute the lands" of Canada, "give and grant by these presents the extent and appurtenances of the " following lands, to wit : one league of land along the bank of the River St. Law- " rence, by one league and a half of depth on the lands situated at the place where " the River Notre Dame de Beauport falls into the aforesaid river, including the *' river (Notre Dame); to enjoy the said lands, the said Sieur Giflard, his succea- •' sors or ayans cause, in all justice, property and seigniory forever, with precisely " the same rights as those under which it has pleased His Majesty to grant the " country of New France to the aaid Company, (en toutte jxistke, piopriiti et *' aeigneurie, d perp6tuite, tout ainsy et d pareils droits qu'il a plu d Sa Majettc " donner le vays de. la Nouvelle France d ladite Compagnie") Is not this an irre- vocable ana absolute grant of property ? I think, il there are words which can convey such a grant, I have just read them. But the grant conveyed other pro- perty ; it gave another piece of land d titre de cens, in the following terms. '' Besides ** which things the Company has also accorded to the said Sieur tiiffard, his succes- " sors or ayans cause, a place near the fort of Quebec, containing two arpents, for " him there to construct a house with the conveniences of a court yard and garden, " which places he shall hold d cens of the aaid place of Quebec." The strong ex- pressions contained in the other grant, are not in this. I, of course, do not mean to say that this was not a grant of property ; but when I have the much larger and more emphatic expressions of the other portion of the grant, I cannot believe that they were not meant to give the most absolute property. If one was a grant of property, which cannot be denied, the other was such a grant ten times over. The one was a grant, made as to a commoner ; the other was a grant of all kind of property, with right of justice and lordship over the tract of country comprised within it. The following, again, is the wording of the grant of Deschambault ; another of these grants, comprising as well land en roture as land en fief. I cite from page 375 of the same First Volume, — the French version :— 9 to isely the ! et jeute irre- can jro- ide3 ices- . fof den, ex- ,n to and that It of The of Used " We have, to the said Sieur de Chavigny, given, granted and conrefided. an' '< in virtue of iho power conferred on U8 by IUh Majesty's Kilict for the estabii..!.. " merit of our Company, do by thoie prusentii give, grant ami concjulo the iannn « and placet liereinuttur described, tliut \n to aay : two lupents of land to be taken " in the place designated for the city aiuWian/(eu« of Quebec, if tlieru remain still any " unconceded lundH the. "^in or adjoining the Hanie, to build thereon a dwelling with " a garden where ,.» may reside with his family ; moreover, thirty mnunts of land " to be titken outside the said banlieue of the said city of Quebec and close to the *' SOHH', in tJie lands not yet conceded ; — '* And wo have moreover to the said Sieur de Chavigny given, granted nnd " conceded, and by these presents do give, grunt and concede, in virtue of the " power conferred on our said Cornpany, hall a league of I iiid in widtli, to be taken ** along the said River St. Lawrence above or below Quebec, at any place from *' Three Kiversdown to the moulii of the said Uiver, by three leagues in depth in- *< land, either on the side where Quebec is, or on the other aliore of the said Kiver, « as the said Sieur de Chavigny may dcnire ; to havo atul to hold, unto him, his " successors and assignH, the above conceded lands, in full property, uiid to possess " the same, towh: (enpleinepropriele,el lea poucder, spavuir:) the said two ar- *< ))enta of land in the city and baiUiene of Quebec, and the said thirty arpents near *< and ouiside the said banlieue, in roture, subject to the payment of one Uinier of •* cens, payable at the Fort of Quebec, every year, on the day which shall hereafter '< be appointed, the said cens bearing lads el venleSf miitine et ainendea ; and the said " half league on the River St Lawrence by three leagues in depth inland in all " property, justice and seigniory also for ever, unto him, his heirs and assigns {en " toutte pidprieU, justice et seigneurie aussi d toujours, ptmr luy, ses hoira et ayan» " cause.") Here, again, one property waa granted enjirf, and another en ror«r«,— both as real property ; only, one as a much higher kind of property than the other. Again , on page 351 of the same Volume — I of course continue to cite the Freich version, as being the original — will be found a grant wholly en roture, to one Jean Bourdon. After reciting a setting apart bj the resident (Governor, in favor of the grantee, of ** an extent of about fifty arpents, of land covered with growing wood, *' ehuate in the banlieue of Quebec, to have and to hold the same unto him, his heirs " and assigns, fully and peaceably, in simple rcture, under the ohargesand censives " which Messieurs of the Company of New Frttnc*; sl'.n!! orJer, on condition that " the said Sieur Jean Bourdon shall cause the said lands to be cleared, and shall *' allow the roads which the officers ol Messieurs of the said Company may establish, << to pass through his lands, if the said officers judge it expedient, and that he shall « take a title of concession from Messieurs of the saiil Company ot the said lands." — this grant thus proceeds : — " The Company has confirmed and hereby confirms *' the said distrioutiun uf land, and as far as may be necessary, has granted and con* " ceded it anew to the said Jean Bourdon, to have and to hold the same unto him, " his successors or assigns, (pour tn jouir par luy, ses succesaeura ou ayant cause,) " under the said charges and conditions above mentioned, and moieover subject to *' the payment of one denier of cens for each aipent every year to be computed from " the date of the said giant." The same omission of all strong forms of expression as to grant of full propsity, characterizes all these roture grants. \f t they were grants of property. Were jthe grants en fief^ where so much more was said, really meant for less ? No less than twelve of these grants by the Company of New France contain expressions equivalent to that which I havo read from the grant of Beauport ; con- ferring the same rights as the Company had from the King. The seigniories thus granted are the following, viz : In 1634. Beauport and a fiefsX Three Rivers to the Jesuits : in 16.%, Lauzon. Beaupre, and the Isle d'Orleans ; in 1640, part of Mont- real and St. Sulpice ; in 1652, Gaudarvilte ; in 1653, an Augmentation of Beauport, Mille Vaches, the Augmentation of Gaudarville, and NeuviTle or Pointo aux Trem- bles ; and in 165S, the remainder of Montreal. Of these, Gaudarville was granted for the purpose of inducing the grantee to defend a dangerous post. There are three other grants in franc a/eu ; words -which absolutely relieved the holder from 10 any obligation, except tho?(' to which he vra*) liable as a subject of the French Crown ; feudal superior lie had none. Several other grants were made in franc almoigne to religious bodies, on condition of their giving an honorable place to members of the Company at the performance of mass on certain days of ceremony, of their i,taking'care of the sick, &c. Many grants were so worded as to exempt the owner from the duty of paying a quint on mutations by sale, and thus gave him the power to part with the property exactly as he pleased. A large proportion of the grants contain the words en pletne propricle ; and not one excludes tne notion implied in thosn words. Several expressly grant some river or rivers ; many grant " all the rivers ;" and of course whenever the Company granted with the same rights as they hold themselves from the Crown, they gave the rivers, mines, minerals and everything else. So far indeed, did these grants go, that in some cases it was even thought necessary to make a reserve of this kind — "The Company does not " intend ih^^t the presenl concession should prejudice the liberty of navigation " which shaH be common to all the inhabitants of New France." This clause is to be found in the grant of Montreal, in 1640 (see page 365 of the same Volume) ; and similar provisions are to be found in some eight other grants ; shewing clearly liow perfect was the property intended to be given, when it was thought necessary to reserve such rights as these. In some of rhese grants thit clause is so worded a? to stipulate in terms, that the grantees shall charge no duty on ships passing their lands on the St. Lawrence. Were not men, in whose grants it was thought requisite in express words to reserve even this right of sovereignty over the great river of the country, intended to be proprietors of something ? The grants 1 speak of, are o^ dates rangmg from 1640 to 1659, and are in all no less than nine. They are the grants of Peschambault ; part of Montreal and St. Sulpice ; Riviera du Sud ; an Augmentation of D'Autre ; Portneuf ; Repentigny, Lachenaie and L'Assomption ; Becancour ; an Augmentation of Deschambault ; and the remainder of Mont- real. Other clauses equally indicative of meaning, are to be found in a number of the grants. Several, for instance, expressly prohibit the erection of forts, and a considerable proportion imply the understanding of the parties, that the grantee would probably make application to the Crown for a title of honor ; the Company, or it will be remembered, not having power to grant such title. Was it meant that men, receiving such grants, were to be something short of proprietors ? There is of course no question, but all these grants implied the duty of settle- ment and clearing of the land ; that when the Crown granted land, the grantee was to take possession and make use of it. If not, the contract was not fulfilled ; and either the Crown, or the Company — in case the Company were the grantor— might take it back, as if it had never been given. This 1 admit. All I contend for is, that tlie grantees were not bound to settle the land in any particular manner ; that they were lords and masters ; not obliged to concede or part with theii land in any particular way ; whether en arriereji^, or d cens^ or otherwise. There were diffi- culties arising out the state of the new country, which render'^d it impossible to carry out in it the manners of the old ; but these were circumsta; 3s of geographical position, not restrictions of law. The law imposed no restraint whatever ; and as to the grants, very few indeed made any mention of the amount or kind of settle- ment to be effected by the grantees. In the grant of Deschambault, (from which I have already quoted,) it is provided that the grantee '* shall send at least four " working men to commence the clearing, besides his wife and servant-maid, *' and this by the first ships that shall sail from Dieppe or La-Rochelle, together <* with goods and provisions for their support during three years, which shall be gra- " tuitously brought and carried for him to Quebec in New France, on condition •' that he send the whole on board of the ships of the Cortipany at Dieppe or La- " Rochelle." There was thus a stated consideration for this grant : not, however, an obligation to take out emigrants by the hundred ; nor yet to concede to all and sundry who might come and demand the land. You could not in those days have induced a man of substance to go out and settle, without giving him a large quan- tity of land ; and no man would have thanked you for such a grant, unless he were to be the master of it. The grant of Montreal, (also already quoted) 'is another of the two or three that imply an obligation on the part of the grantee to bring out settlers. But there is not one that imports obligation as to the terms on which land should be given to such settlers. Some on the contrary, even limit the power of granting land in a whimsical manner. Thus in the grant of Beauport in 1634, the land is given " witlxout the said Sieur GifTard, his successors or assigns, having the right gra- lition La- 11 " to dispose of the whole or part of the lands hereinabove granted to him without " the will and consent of the said Company, during the term and space d ten years." So far, then, from its having been his duty to concede, his grant re- 3trained bis power to concede. The grant of D'Aiitte provides that concessions be made only to persons residing in New France, or who shall go out there. That of Montreal and St. Suipi^e, on the contrary, limits them to persons not inhabitants of Newtfrance, but wli lall bind themselves to emigrate tliere. So various were all these grants; so u verse to the ideas that then prevailed, the notion, that the grantees were bound to sub-grant their lands,— by any uniiorm rule, a cens, or otherwise, — or indeed to part with them at all. Besides, a number of these grants en fief were grants of tracts of land, too small for sub-granting to have been jxjssibly thought ol. Isle des Ruuux was a small island granted for purposes of p;isturage fo the Jesuit Fathers. Another grant was made to one Boucher, of two hundred arpents, en fief; and another on the Cap Rouge Road, called Becancour, was but ten arpents by one. Another of them, was a mere erection of a house called St. Jean, at Quebec, with sixty aipents of land adjoining, into a fief The owner Bourdon by name, held it en roture ; and the Company converted it intc a fief — expressly to gratify him, by making his tenure that of a man of rank. Under all these circumstances, can it for an instant be imagined that the grantee of land enfiefxraa at all bound to sub-grant? He was to all intents a proprietor ; only with a higher social rank, a right of property more admitted, than were pos- iiessed by the holder en roture. It was impossible tln.t such a condition should have been thought of. The grantees must sometimes bring people out from France ; the Company could not require them, after they had done so, to make any other bargain than they and their emigrants might think (it to make. The Seignior could grant his land or not, as he tnought proper. The beginning, middle and end of his obligation was, to take possession of it and settle on it ; when he had done this, he might do whatever else ne pleased. Generally speaking, the grants were made for the avowed purpose of enriching the grantee. Several, indeed, were to reli- gious bodies, and set forth the intentiou of securing them ample revenues ; a notion obviously irreconcileable with the idea of their being bound, as a sort of Govern- ment Agents, to concede their lands at low rates. So much for the tenor of the grants of nearly three tenths, in e.vtent, of all the land at present held en fief in Lower Canada. I pass to my next period ; that between 1663, the date of the dissolution of the Company of New France, and 1712, when the ArrSts of Marly were promulgated in Canada. The Company was dissolved, because it did littls for the settlement of the country ; the majority of the Seigniories were not settled ; and the French King revoked his grant of 1627, and took the Colony again into his own hands. Not long after several Royal Arrets were issued ; which have sometimes been citedj, as though they imported the revocation, more or less absolute, of all the antecedent grants made by the Company. It has been taken for granted by those who have so cited these Arrets, that because the King said by them, that these grants were to be revoked, in whole or part, they were so. But the fact was not so. I admit, of course, that some of the grants made by the Company were taken back again. A number were, no doubt, so dealt with. But it was not under these Arrets , or any of them, as I will presently show, that this was done. ! I nrinted on page Kins complams complams The first of these Arrets is that of the 21st of March, 1663, 135 of the Third of the Volumes laid before Parliament. In it the of the failure to settle the country, and alleges : **that one of the chief causes for " the said country not becoming so populous as he desired, and even that several ** settlements had been destroyeil by the Iroquois, is to be found in the grants of " large quantities of land which have been accorded to certain inhabitants of the " said country, who never being able to clear their lands, and having established their " residences in the middle of the said lands, have by this means found themselves ** placed at a great distance from each other, and, therefore, unable to succour or " aid each other." And the Arret goes on to say^ that, to prevent this evil, the King ordains, that " within six month* of the publication of the present Arret in •i 'a 12 " the said country, all the inhabitants thereof shall cause to be cleared the lands *' contained in their concessions ; or otherwise, in default of their so doing within ** the time mentioned, His Majesty ordains that all the lands not cleared shall be " distributed by new concessions in the name of His Majesty ; His Majesty re- " Yoking and annulling all concessions of land by the said Company still remaining " uncleared." It might naturally be supposed that this meant .somethhig ; but, under date of almost the same day, there will be found in the Edits et Oraonnances, l)iinted in 1803 and 1806, (on page 26 of the Second Voluine,) a document ad- dressed by the King to a M. Gaudais, a Commissioner of Inquiry, whom he seems to havo been sending out to Canada. This is dated the 6th of May, 1663 ; and in it the King treats the injunction just mentioned as comminatory, and never intended to be carried out to the letter. ** In case any of those," says the King by this instru- ment," to whom concessions have been made, set to work at once to clear them *' entirely, and before the expiration of six months as mentioned in the Amt, shall ** have commenced to clear a good part, it is the intention of His Majesty, that on " their petition, the Sovereign Council may grant a new term of six months only, " which being ended He desires that all the above mentioned concessions shall be ** declared null." When the Arret came to Canada, however, we find that nothing was done upon it ; the Sovereign Council contented itself with merely having it communicated to the Syndic of the Habitans, before proceeding further, " avant /aire droit.^' This done, no one appears to have thought any more about it. Cer- tainly, the uncleared grants were not all resumed under it ; nor indeed, so far as one can see, were any. In May 1664, the King created a new Company, liie Company of the West Indies, with powers and privileges as regarded all the American possessions of the French Crown, nearly answering to those which the Company of New France, had enjoyed in respect of Canada. Nearly three years later, we arrive at the date of the earliest in order of time, of the documents forming the first part of the Fourth Volume lately laid before this Honorable House. As those documents (the documents obtained within the last year from Paris) have been said to furnish strong evidence against my clients, I shall feel it necessary to advert to all of them ; and I begin with this. It purports to be an extract from a draft of a regulation (projet de rcglement) prepared by Messrs. De Tracy and Talon, then respectively Governor and Intendant of New France, under date of the 24th of January, 1667, relative to the granting of land ; and is to be found on page 5 of the Volume in question. It is thereby suggested :— " That an Ordinance be made^ enjoining all inhabitants of the country, and all " non-residents {etrangers) possessmg lands therein, to declare what they possess, " whether in fief of liege homage or of simple homage, in arriere-Jief or in roture, <* by a statement and acknowledgment (deiiombrement et aveu) in favor of the " Company of the West Indies, giving the conditions and clauses contained in their " titles ; so that it may be ascertained whether the Seigniors (Seigneurs Dominants) " may not have hacf anything inserted in the deeds given to them by their Su- ** perior Lords {Seigneurs Suzerains ou Dominantissimes) to the prejudice of the " rights of sovereignty (droits de souverainete) ; and whether they themselves, in '' distributing the lands of their fief dominant to their vassals, may not have ex- " acted anything that may infringe on the rights of the Crown and the subjection *• due only to the Kinsf : * * • and to avoid all confusion and give the King a " perfect knowledge of the changes which shall be effected each year in Canada, " that it be ordered that in future no grant, whether special or general, shall be " made in the name of the Company of the West Indies, or on the part of the ** Seigniors of fiefs who shall be clistributing their domaine utile to Habitans, unless *' (and this as a condition of their validity) the same be verified and ratified by the " otficial having power from His Majesty, and be registered in the office of the " domain ofthe said Company ; for whose benefit a land-roll (terrier) shall be com- " menced forthwith." vvl pression The Governor and Intendant, then, at this time were evidently under the im- that grants of land had been made under the regime of the Company of New France, givii 2 too extensive rights to the grantees ; rights in fact, of a nature to trench on those of the Crown. Their purpose was, to enquire as to that matter 13 They clearly never thought of any of these grantees, as being somethinu' less than owners of real estate, ^d, as clearly, thejr entertained no thought of making them so. The notion of an obligation on a Seignior's part to sub-grant his land, was not their notion. They neither hint at the existence of such an obligation, nor propose to create it. On the contrary, their proposal (a proposal never acted on) is, to throw a certain measure of obstruction into the way oi their so doing. Asido from tliese inferences, this document proves nothing. It purports to be a mere project ; and was never acted on. roture, of the In their ?ir Su- of the Ives, in jve ex- Ijection [ing a lanada, Tiall be I of the lunless py the |)f the oom- le im- py of jature latter. The second in order of date, of the Arrets of the French King to which I just now alluded, is an Arret of the year 1672 ; registered in Canada on the 18th of September of that year. It is not printed in the Volumes lately laid before Par- liament ; but is to be found on page 60 of the First Volume of the Edits et Ordonnancea. It vvas issued immediately after the appointment of a new Gover- nor, the Comte de Frontenac ; and is really little more than an order to M. Talon, the Intendant, to make out a land roll, or terrier of the country — a duty, it thus seems, which still remained to be performed, notwithstandmg the intention five years before expressed by him on that head, in the extract last read. The King complains, that his subjects in New France nave obtained too extensive grants of land, great part of which remains uncleared, " by reason of the excessive size of " the grants, and the want of means of the proprietors thereof— (d cause de la trap " grande etendue des dites concessions, et de lafoiblesae des proprietaires d^icelles)" ; and he thereupon orders M. Talon to make out an exact return of the grants made, and of their state as to number of persons, cattle, &c. on eacli, — after which, he is to resume fho one half of the extent of the grants made previous to the last ten years, and to re-grant them to new applicants, on condition always of their clearing them entirely in the course of the four years immediately following. Again, no trace of the notion of any of these grantees not being owners of t^eir giants. On the contrary, they are expressly so called. Nor yet, of their being under obligation to sub-grant. The whole intent of the Arret, is to say to these grantees, as proprietors of land given them for settlement ; you have had too much given you ; you cannot clear your land, for want of means ; I intend to take back half, and give it to others who shall. But the very fact of this Arret having been issued in 1672 shows con- clusively, that the Arret of 1663, on which I remarked a few moments since, vvas merely comminatory, and had not been acted on. If it had been acted on, there would have been no grants in force of a date previous to the last ten years. Nor was this of 1672, acted on a whit more. Talon drew up no such return as was ordered ; and resumed no halves of grants. There is no trace of any half of a grant having ever been resumed. Instead of acting on this -4/Tt^, in fact, M. Talon did some- thing quite different ; for he immediately granted a great number of Seigniories, w ithout so much as putting into the grants the condition of clearance within four years, as by this Arrit he was pointedly enjoined tj do, A third Arret of the same class is to be found on page 136 of the Third of the Volumes laid befoie Parliament. Its date is of 1675, and it was registered here on tlie 21st of October of that year. It is a transcript, almost without cliange of a woi-d, from that ori672 ; and" in fact, issued on the occasion of the appointment of ivi . Duchesneau to succeed Talon, as Intendant of the country. Equally with its predecessor, however, it failed (as regarded escheat of land) to be acted on. In 1676, the King issued a Commission, (to be found on page 24 of the First of the Volumes before Parliament) by which he vested the power of granting land in New France, in the Governor and Intendant jointly ; that power, up to that time, having been exercised sometimes by one, and sometimes by the other, of those Officers. The grants were to be made subject to confirmation by tlio King within the year, and on condition also of clearance and improvement of the land within the six next following years ; and were to be made contiguous to one another and to the grants already made and cleared — *'(/e proche en proche et contigues avx ^'concessions qui ont ele faites ci-devant, et (pii sont defrichees." No other conditions were enjoined. And in fact, in the grants as made, these injunctions were not obeyed. The six years' clearance clause was never inserted ; any more than the four years' clearance clause previously enjoined had been. 14 The fourth and last Arret of which I have to speak in this connexion, bears (late three years later, in 1679; and is only to be found on page 347 of the first volume of the Edits et Ordonnances. It recites that, at last, the return or iand-ioll, ordered in 1672 and 1675, had really been made, and that it showed the greater part of the granted lands to be still unimproved and <' useless to its owners (inutile nux vroprietaires) ;" and thereunon, it first ordered the execution of the Arret of 1675, — admitted, therefore, till that time to have remained unacted on, — and then enjoined a course quite other than the course indicated by Ihai ArrSt, — that is to say, ordered that one fourth o( all the lands granted before 1665, and not presently cleared and cultivated should bo " taken from the proprietors and possessors thereof, ** (relranche aux proprictaires et posscsseurs d^icelles,)'' and one twentieth part of Avhatever should be the uncleared remainderof each grant, yearly thereafter. There is not however, the least trace of this Arret any more than its predecessors, having ever been put in force. It was merely comminatory. Neither one half, nor orm fourth, nor one twentieth of any Seigniory was ever escheated. All was a dead letter — a threat never executed, perhaps never meant to be executed. I pass to consider the grants made by the Company of the West Indies, or in the King's name, from the date of the dissolution of the Company of New France to the year 1712. These grants were very numerous — in all something less than two hundred and sixty, of which some eighty-three are not in Canada or for other reasons should be struck off. There remam a hundred and seventy-six ; of which a hundred and sixty-four are printed in the Volumes before the House. Two of those not so printed, I have obtained elsewhere. In all, ihey exceed four sevenths of the grants now in force ; and they cover more than four millions of the ten mil- lions of arpents held en fief in Lower Canada. A few of them, some six in number, were granted by the Company of the West Indies ; all in the same terms. The grant of tho Seigniory of Kiviere-du- Loup en bos, is one of these ; and is to be found on page 39 of the First of the Volumes laid before Parliament. It grants, " on the south side of the great River ** St. Lawrence, one league above and one league below the Riviere du Loup, by *' one league and a half in depth, and the ownership (vropriete) of the said Riviere " du Loup, and of the mines and minerals, lakes and other rivers which may be ** found within the said concession, and also tho islands and beaches in the said " River St. Lawrence, opposite the said concession, with tho right of hunt'ng and ** fishing throughout the whole of the said concession ; to have and to hold the " same unto the said Sieur de la Chesnaye, his heirs and assigns for ever, in full " property and seigniory, (en totite propriete ct seigneurie,)" subject only to the rendering of *foi et hommage, with payment of an ecu d'or on every change of pos- sessor, and on condition of clearance being begun, a survey made, and bounds (Ix)mes) planted, within two years. The grants of Terrebonne and Petite Nation (neither of them printed in the Volumes laid before Parliament, but of which 1 have obtained copies) are in the same terms. These grants by the Company were confirmed by the Royal Edict of 1674 (see page 20 of the Second Volume laid before Parliament) revoking the Company's Charter. ** We declare valid, approve and confirm," says that Instrument (p. 23) ** the " grants of land accorded by the Directors, their agents or attorneys, and tho sales ** (ventes particulieres) which have been made of any habitations, stores, lands <* and heritages, in the Countries by us conceded" heretofore to the Company. So that there was evidently no more idea then, of questioning the right of the Com- pany to sell, than there was of questioning their right to dispose of land in any other way. The remainder of the grants of this period were made in the King's name ; first, a large number by Talon in 1672, — to Officers of the Carignan Regiment and otiiers; then several, by the Comte de Frontenac, the Governor; then, some by Messrs. Frontenac and Duchesneau, under separate instruments executed by each ; and afterwards, the remainder, under instruments jointly executed by the Governor and Intendant for the time being. In the terms of these grants there is great variety. Some lefer back to grants by the Company of New France, and augment them ; the new grants being quite 15 lexion, bears J of the first or land-voll, 1 the greater mers (inutile •the Arret of n, — and then that is to say, lot presently ssors thereof, ritielh part of uafler. There (ssors, having 5 half, noronw .11 was a dead Indies, or in New France ing less than a or for other six ; of which luse. Two of four sevenths f thetenmil- mpany of the f Kiviere-du- 3 First of the le great River re du Loup, by e said Riviere lich may be !s in the said hunting and to hold the ever, in full t only to the lange of pos- and bounds Petite Nation it of which 1 of 1674 (see e Company's t (p. 23) "the ind the sales stoves, lands jmpany. So of the Com- land in any ling's name ; Bgiment and fin, some by ted by each ; Jhe Governor |ick (0 grants being quite as destituts of clauses of restriction on the grantee as the original grants. A great nomber specially grant particular rivers, or all the rivers within their limits, as the case may be. Others set forth as the object of the grant, that it is to endow reli- gious bodies, or to reward services to the state. Some carried with them rank in the peerage. Others, again, were granted as an Inducement to the establishment of Fisheries. These, of course, granted the rivers ; and contained no expression hinting at the idea of the land being sub-granted at all. The thing intended was the creation of fisheries, not of agricultural establishments. One grant was made with a view merely to the establishment of a elate quarry, at Ansc dc VKlang ; the only condition being that the grantee was to give notice to the King, of the mines and minerals, which he might find. I might heap proof on proof of the absence of any intention to compel the grantee to sub-grant. It is even certain that several grants, as large as Seigniories, were made a litre de cens — that is to say without the faculty to regrant, because the holder d litre de cens could have no ccnsitaire under him. I repeat, during several years grants were repeatedly made, of an extent of from two to four leagues, d litre de cens, at the rate of six deniers of (Jens ; which grants it was legally impossible for the grantee to dispose of either en fief or d cens. Numbers of grants, in this way or otherwise, are utterly inconsiste»t with the idea of an obligation to sub-grant. One, indeed, that of Isle aux Uoudres, to the Seminary of Quebec, (to be found on page 322 of the First of the Volumes laid before Parliament, was made upon express condition that the Seigniory granted should not be settled upon, except by persons belonging to the Seminary. So far from obliging the grantees to sub-grant, with a view to the settlement of the country, it actually prohibited them from so doing. The ecclesiastics were to use their grant, lor the education and conversion of tlie Indians ; and none but ecclesiastics were to live in their settlement there, lest the work of education and conversion should be interfered with by lay irregularities of. any kind. I have felt anxious to be able to support these statements, by a much fuller and more precise detail of facts. Had time permitted, I would have drawn up and laid before this Honorable House, a complete/oc/um, setting forth my clients' case ; in which I would have set forth as succinctly and clearly as I could, the precise tenor of all these varying forms of grant. This, however, I have been unable to do ; and can onlj say that I purpose yet to do what I can towards supplying this omission, by laying before the public in print, with as little delay as possible, such a state- ment as to these grants. In the meantime, all I can do, is to state results in general terms, and cite occasional instances; as I am now doing. The only kind of reference in any of these grants, to their probable settlement by tenants or sub-grantees of any kind, is to be found in certain clauses upon which I proceed to remark ; and which clauses, as I have said, are by no means to be found m all of them. I cite them first, in their longest and most stringent form, — from the grant or Ste. Anne de la Perade, by Talon, made in 1672, and to be found on pagr of the Frst Volume so often mentioned. They there read thus : 10 and 275 " On condition that they " the grantees *• shall continue to keep or cause 4o be " kept hearth and home (feu ct licit) on their said Seigniory ; and that ♦hey shall sti- *' pulate in the contracts they may make with their tenants (tenanc . s,) that these " latter shall be held to reside within the year, and keep hearth and home on the " concessions that may be or may have been accorded to them, and that in default " of this, they shall re-enter of lull right (de plein droit) into possession of the said " lands;— that they shall preserve the oak trees, fit for sliip-Duilding, that may be *' found on the land which shall be reserved for their principal manor house, and '* also that they shall reserve the said oaks in all the extent ot the particular conces- " sions made to their tenants, (tenanciers.) It is evident, however, that these are not clauses to oblige the grantee to have censitaire tenants. The very word lenancier is an ambiguous one : it may mean censitairea, or it may mean something else ; it is applicable to censitaires, fermiers, holders under bail d rente— tenants of any kind. But apart from this, I repeat that 16 these clauses do not require the grantee to have tenants at all. They merely re- quire him, if he have tenants* to make ihem live on their lands and preserve their oak trees. He is not to part with his land or to create claii is upon it, without binding down the parties to these terms. To show, beyond the possibility of question, that this and no more was the meaning of these clauses, it is enough to turn to other titles of the sane period. We shall see that they boom got shortened ; and in fact, appear as early aa the year 1676, in a grant of part of Longueuil, (on page 101 of the same Volume) in the following words • — " that he shall continue to keep and cause to be kept by his tenants (tenan- " ciers) hearth and home (feu et lieu) on the said seigniory ; that he shall preserve " and cause to be preserved" the oak timber fit for ship- building which may be found " there," &c. In other grants of the same year, those of St. Maurice and Gentillyy (,on pages 155 and 13 of the same Volume,) the whole is cut down into a clause, !n which the very word tenancier does not appear. '' He shall continue to keep and ** cause to bo kept hearth and home on the said seigniory ; and shell preserve and " cause to be preservo'd the oak timber thereon fit," &c. The evidence goes even further. For a number of grants are actually so worded, as in terras to show that the having of sub-grantees was not a thing compulsory on the Seignior, but purely facultative. Thus in the grant of Ste. Anne des Monts (see page 329 of the same Volume) under date of 1688, the expression used is, that the grantee shall insert the requirements insisted on " in the concessions which he will be at " liberty to make {qaHl luy sera permis de /aire) on the said land ;" and in a number of other instames, the same or like wordc are used. Nor were these varying forms of expression the result of mere unauthorized caprice on the part of the Governor and Intendant. They were fully sanctioned by the Crown. I'nere are printed two Royal Arrets, (see pages 242 and 243 of the Second of the Volumes laid before Pailiament,) each confirming a number of grants; one dated in 1680, ihe other in 1684. By these the King declared that he confirmed those grants precisely as they were made ; only adding a clause to require clear- ance within six years. I have also obtained another, bearing date the same day as the -<4rrc/s of Marly, the 6th of July 1711; which contains the ratification of eleven grants, of various dates and granted under various conditions, but none of ther hinting at any obligation on the grantee to concede to Cenaitaires, or at all. in this document which I have from a client, (and the terms of which correspond almost word for word with those of every subsequent Brevet of Ratification that I have been able to procure,) the King distinctly sets forth the Seignior's obligations as the following, and no other : — " To render foy et hommoge at the Castle of St. ** Lewis at Q,uebec, of which they shall hold under the ordinary dues ; to preserve " and cause to be preserved the oak trees proper for the construction of the King's *' ships ; to give notice to His Majesty, or to the Governors and Intendants of the " said country, of mines, ores and minerals, if nny be found within the extent of *' the said concession ; to keep hearth and home thereon, and to make their tenants " do the same, failing which the << ') grants shall be reunited to the domain of His Majesty ; to clear and cause to be cleared the said lands forthwith ; to " leave space for all roads necessary for the public good ; to leave the beaches " free to all fishers, except such beaclies as they may want for their own fisheries ; " and in case His Majesty shall need any part of suoh lards, for the construction ** thereon of any forts, batteries, places d'armes, magazines or other public works, '* His Majesty shall be entitlecf to take the same, as also all trees that may be ** necessary for such public works, without having to make any compensation «* therefor." In all this, most surely, — in all, I rroeat, that is to be found in all tiie grants to this date, — there is no word indicative of the imposition on the Seignior of any obligation to sub-j^rant his lands on any particular terms, or indeed to sub-grant them at all. We come, then, to the An^etsof Marly, of the 6th July, 1711 ; promulgated in Canada in December, 1712. It need hardly be observed that there are two Arrets of that date ; one aimed at the Seigniors ; the other at the Censilaires. Before speaking, however, of the precise terms of these Arrets, I must remark on some matters of fact only of late Drought to light, and which are established by the docu- 17 mentH contained in the lai-t of the four volumes laid beforH this Honorablo House From the second of these — it will be remembered that I have already commented, upon the frst — from the second of these, to be found on page 6 of that Volume, it appears that in 1707, M. Raudot the elder, the then (ntondant, wrote to the Minister (Monseigneur de Fontchaitrain, ujiparentiy) complainin;;; of many abuses, as he thought them, which prevailed in the country; and especially lamenting the "esprit d'affaires^' which, he says, was betfinninij; to manifest itself, and to cause or threaten a fearful number of law suits. According to his ideas, it was necessary, in order to put a stop to ail this litigation, to introduce an entirely new law, estab- lishing an ajsolute Five years' Prescription, by which all sorts of people should be prevented from bringing all Borts of suits; for, said he, unless this universal litiinration is put an end to, the most dreadful results to the colony must follow. A»ii-r a good deal of writing upon this subject, he turns upon the Seigniors, and says that many Hahitans have settled on land on tiie bare word of their Seigniors, without deeds setting forth any conditions, and that the consequence is that these Habitam have often been subjected to rents and dues of a most onerous character ; the Seigniors refusing to give deeds except at charges such ao they ought not to be compelled to pay. This, says he, has caused the dues to be dilierent in almost all the seiguiories ; in some, one rule prevailing; in some, another. He further complains thfit it has become usual for Seigniors to stipulate in their concession deeds, the droit de retrait, a right which he characterizes as inadmissible under the Customs of Paris. On this last point, \ should observe, that that Custom does give the right of retrait as regards land held en fief; that is to say, whenever such land may have been sold, the Superior Lord may by the Custom come in and take it at the pr'ce paid, — as not being obliged to accept of any Vassal whom he may not like. The Custom does not accord him such right, as regards land held of him '?i^ censive,* but it does not preclude his acrecing with his Ccrisitaire for its exercise. Such agreements were always common ; and whenever made, were valid. M. Raudot was merely wrong in his law, (>n a most obvious point, when asserting the contrary. He goes on to say : — *' There are grants according to which the capons paid to the Seigniors are " paid either in kmd or in cash, at the choice of the Seignior. These capons are " valued at thirty sols, and the capons are not worth more than ten sols. The Sei- " gniors oblige the tenants to give them cash, which they find very inconvenient, as " they frequently have none : for, although thirty sols appear but a trifle, it is a great " deal in this country where money is very scarce ; and moreover it seems to me " that as to all dues, when there is a choice, it is always in favor of the party owing, " cash being a species of penalty against him when unable to pay in kind. '* Seigniors have also introduced into their grants the right of the banal oven " (Jour banal) of which the Habitaiis can make no use, because of their habitations " being at a great distances from the Seignior's house, where such oven must " be established." Baudot, then, proposes that all these things should be changed, and a new order of things established as to all sorts of matters. Some of his proposals, — as for instance, that for suppressing the four banal, or exclusive right of keeping an oven in the Seigniory, were not unreasonable ; but others of them were absurd ; and one in particular — for the reduction of all Seigniorial rents, past and to come, to one low uniform rate, was (to say the least) a proposal to interlere with contracts and established rights of property, in a manner 'Uierly indefensible. The next document in the same Volume (page 9) is a letter, or patt of a letter from Monseigneur de Pontchartrain in answer to the preceding; a diplomatic note, intimating a civil disposition on the part of the Minister, to act on the recommenda- tions given him ; but asking for more information. Following this, in the same Volume, are two notes (see pages 10 and 11) from Pontchartrain to Messrs. Deshaguais and D'Aguesseau — two lawyers, the latter then Procureur General ; in which the Minister requests those two gentlemen to draft Pn Edict on the subject. 2 18 The importance of these two notes, however, it not obvious ; although, no doubt, the namo of D'Aguenseau, afterwards Chancellor of France, ia a (reat name. There is nothing to show that any such Edict e> er was drafted by bii i, or by any one else; and it is at least quite certain none was ever passed. M. Raudot, in the meantime, in 1708, sent home another hitter, (the next docu- ment, commencing on page 11 of this same Volume,) accomi anied by a memoir showing the various rates, which prevailed in different seigniories. This memoir has not been printed, and seems not to have been found; but this much is clear, that by it, in 1708, Raudot informed the King that the dues paid to the Seigniors were most various, and many of them mo^^t onerous, considering that at the time there was little or no money in the country,— that they were, in fact, so various and so many, that he sent home this memoir with the recommendation to bring all to the same level, and this by way of reduction, in order to go back to the early days, *• lea temps d'innocence " as ne called them, when all the rates were low. To these two papers, we have no answer from the Minister. There is a short document, dated in 1711, the next in the Volume, (see page 13,) but it has no reference at all to the matter of Raudot'a letter ; ar. 1 after that we have nothing more in the Volume, till we come to the year 1716. Did I say, we have no answer?— I am wrong. We have the King's own answer, in these Arrets of Marly, of the year 1711 ; showing how extremtly small a frac- tion of all M. Raudot's sweeping recommendations, His Majesty saw fit to regard with any sort of favor. The former of these Arrets of Marly, that which is directed against the Seigniors, is to be found on i)age 245 of the Second of the Volumes before Parliament, and is in these words : — "The King being informed that among the tracts of land which His Majesty " has been pleased to grant and concede tn seigiicurie to his subjects in New France, •' there are some which have not been entirely nettled, and others on which there ** are as yet no settlers to bring them into cultivation, and on which also those to " whom they have been conceded en seigneurie, have not yet commenced to make " clearings for the purpose of establishing their domains thereon : — " His Majesty being also informed that there are some Seigniois who refuse, *' under various pretexts, to concede lands to Habitans who apply to them, with the " view of being able to sell the same, imposing at the same time upon ^he pur- *' chasers the same due.j (droits dc redevances) as are paid by the Habitans already *' settled ; which is entirely contrary to His Majesty's intentions, and to the clauses " of the deeds of concession, (aux clauses des titres des concessions,) by which they " are merely permitted to concede lands subject to dues (d litre de rtdevance) ; and '* which also causies very considerable injury to the new settlers, who find less laud ** open to settlement in the places best adapted to commerce : — '* For remedy hereof, His Majesty, being in His Council, has ordained and " ordains, that, within one year at the farthest from the day on which the present " Arret shall be published, the inhabitants of New France to whom His Majesty " has granted lands en seigneurie, who have no domain cleared and no settlers on '* their grants, shall be held to bring them into cultivation and to place settlers " thereon ; in default of which, at the expiration of the said time, it is His Majesty's " will that the said lands be reunited to his domain, at the suit of the Attorney " General of the Superior Council of Quebec. (Procure^r General du Conseil Supe- " rieur de Quebec,) and on the Judgments (Ordonnances) to be rendered in that " behalf by the Governor and Lieutenant General of His Majesty, and the " Intendant in the said country : — " His Mcjesty ordaina also, that all the Seigniors in the said co utry of New " France do have to concede (uyent d conceder) lo the Habitans the lots of land " which they may demand of them in their seigniories, subject to dues (d titre de *' redtvance) and without exacting from them any sum of money as a consideration " for such concessions ; otherwise, and in default of their so doing. His Majesty ** permits the said Habitans to demand the said lots of land from them by a formal " summons, and in case of their refusal, to make application to the Governor and '*' Lieutenant General and Intendant of the said country, whom His Majesty enpina although, no a (reat name. ii: I, or by any he next docu- by a memoir This memoir lis clear, ttiat eigniors were he time there irious and so ing all to the e early days, w. To these )rt document, iference at all 1 the Volume, i own answer, small a frac- r fit to regard ich is directed olumes before I His Majesty New France, I which there also those to need to make who refuse, liem, with the ipon ♦he pur- itans already u the clauses which they \evance) ; and nd less laud rdained and the present lis Majesty 10 settlers on blace settlers lis Majesty's jhe Attorney Yynseil Supe- 3red in that and the itry of New llots of land (d iitre de l)nsideration lis Majesty by a formal 3vemor and 3Bty enjoins 19 " to concede to the said Hdiitans the lands demanded by them in the said seigni- ** ories, for the same duea as are laid upon tiiu other conceded lands in the said " seigniories ; wiiich dues siiall be paid by tlie new settlers {nouveanx Uabitans) ** into the liand^ of the Receiver o( His Majesty's domain, in the C'ity of Quebec, ** without its being in the power of the Seigniors to claim from them any dues of " any kind whatever." What, now, does this Arret amount to? The King has been told that certain Seigniors nave not settled their lands; and he says, if they do not do so, he will take their Seigniories away from them, — a course ot j)rocedure which he had threatened before, but had never carried out. This course, however, was now to be taken through the agency of the Attorney General as prosecuting officer, and by the Governor and Inteiulant acting conjointly. The Kiuff furv.ier says, that he learns that certjiin Snigniors refuse to grant to llfibUam, unless they get cash pay- ment, and that this keeps back the settlement of the country ; which being contrary to his royal intention, he orders that they shall bo bound to make grants without any payment in money. The ivord used to express the dues to be stipulated^ is not ccMs. but rr'^'vance, a geneial word, which does not necessarily imply a holding « litre ill' cens. { do not mean to say that this kind of holding was not present to the mind of those who drafted the Arret ; but I do say, that the thing commanded is, merely, that the Seigniors should grant in consideration offuture clues, rerfcmncM, to be stipulated, — in oilier words, that they should grant on a sort ol credit, instead of insisting on a consideration in cash. If it had been- intended that the grants munt be d tilre de ce7is, why was not the appropriate and definite word employed ? if it had been intended to iix a constant rate, why was not that rate mentioned? Raudot, as we havo seen, in 1707 and 1708 had called attention to the variety of rates prevailing in the country ; and yet, .acquainted with that fact, and alter his minister had called on Messrs. Deshaguais and D'Aguessoau to d rail an Edict on the subject, what does the King do ? Do we find him say, you shall concede at so much, d litre de cens? Not at all. You are to concede, he says, for rede- vanccs — and without exacting ready money. What again is the one penalty imposed? It is explicitly stated in the Arret. The Attorney General shall prosecute you, it says to the Seigniors, and shall confiscate your land, if you fail to settle ; and if you refuse to concede at rcdevanceSy and insist on cash, we permit the Uabitans to implead you. What was to be done then ? Was the land, in that case, to be granted at any one fixed rate? Not at all: we know that the King knew there was no fixed rate in the country ; for the fact, as we have st.>..i, had been brought under his notice. The land demanded by the complaining Habitant ^ was to be granted by the Governor and Intendant acting conjointly, and this for the Crown — not for the Seignior — and it waste be so granted at the rates of the other lands in the seigniory. These were vague words, which might do when the officers of a despotic master had but to refer to him on all occasions to find out his will ; but they are words altogether too uncertain for any legal purpose now. The fact was, the Seigniors were by law at liberty to do what they pleased, in the way of granting their land d tilre de redevance, or refusing so to do and insisting on cash. This Arret purported to take from them the right of so refusing. But it did not take from them the right of making any bargain that any Habitant might be willing to make with them, — whether as to rate oTdues or otherwise. Supposing, indeed, any Seignior, instead of refusing a grant, to have insisted on some enormous rule of rent, such as the Habitant coulu not in reason be called upon to give, that might well enough have been taken, Tccordine to the spirit of the law, for a refusal ; and the Governor and Intendant might then have granted the land : that is to say, if really the Arret had been ever acted upon — as I will presently show there is no reason to believe it ever was. But I repeat; the Arret did not make it illegal to dispose of land otherwise than by grant d ceiis. It was only in case, upon application, the Seignior refused to grant d litre de redevance, that the law became applicable, and his land grantable by the Governor and Intendant ; in which case the dues were to be paid to the Crown and not to him. But this ArrH was coupled with another, to be found on page 246 of the same Volume ; and how is it that those who are so anxious to enforce (as they pretend) the first, show no anxiety to enforce the second also ? This second ArrH sets forth, that the King had been informed that the Censitairet did not live on their grants ; 2* 20 and this al'..i was contrary to Hi,s Mujnsty'.^ intentions ; and lie therefore by, this Anil orderud tliiit ull Cewsj/rriris must kcop hearth and homn upon, and must clear tlipir yrnntH; niul that in cnso ofl^cir Inihiro no to do, upon a simple Cotlilicate from tho ('urc niid (-'aptiiiu of tlit) Cotv <•♦ sur lot rvr(ificatn iifn Cnrca rt Capitairvn (h la " Co'/e") tiint Miu'li and h\u'Ii Ilatiita, a stato of cultivation (•VoHini*; les diln ffabitaiia ntiroiU etc un an utms fuirr feu rl lira aur Irura trrres, '* ft ne lea ivirnnt. point misfs en r«^c./j,") their lands should ho at onc(» oschoatrdto tho domain of llin iSt'iy;nioi, by 'nd^mcnts (Ordnmianrrs) to bo rendered in that behalf by the Iiitendant. .y nunibi'r of Crusilnirea not keepiny hearth and home coiild bo, by an I'rjh . >ceedni}^, ojoctcd (rom their hoidin<,'. This Arn't, unlikfi the other, was fietpiently acted upon. SometinieB the Intendant wna kind enouph to };;ranl delay; at otiior.x, ho escheated the land without any delay at all, according; to the terniw rf the Arret. The two Arrets, it is obvious to romaik, wore tar from being equally fltriuReut. When the 8eij5ni, is interesting as showing that in 1716 the Crown had sent orders to the colony, to cease granting seigniories* The despatch conveying these orders is not printed ; tliougl', curiously enough, an uninteresting e.xtract from a letter of the same dale ai)pears in the collection. I pass on, then, to speak of the terms of the grant.'' the promulgation in Canada, of the Arrets of Marly. made after 1712, the date of I have already stated, and any body who will study the grants may veiify the assertion, that none of the grants made before this date imply the condition to sub- concede in any manner or to any body. The only obligations are on the grantees themselves ; and those to whom they may grant, to do certain other things. There is no obligation to sub-gian at all. — Coming, now, to the grants since that period, I find that they are ninety in number, of which thirty-five are not hero to be counted, as being either not in Canada, or as revoked, or for other causes. Of the fifty-five which remain, fifty-one iiave been printed, and 1 have procured copies of three others ; so that we have the terms of fifty-four. These form nearly one fifth of the total number of grants now in force, and they cover some three millions of arpents, or three-tenths of all the land granted en Jlef. In 1716, as I have stated, the King prohibited the granting of more seigniories in Canada. And from the date of the publication of the Arrets of Marly, to that of the enforcement of this order, five seigniories only were granted. One of these, granted in 1713, (and printed on page 454 of the First Volume laid before this House,) seems never to nave been taken possession of. Another, of the same dale (printed on page 455 of the same Volume.) was that of an Augmentation of Belceil. SingularW enough, these are printed as embodying an unintelligible combination of the ^/and censiw tenures ; the grants purporting to be enjief, and yet subject to a nominal cens. I suppose this to be a clerical error. But it is of no consequence 22 for my prenont argument. All I need obsorvo m to thefle grant* in, that like the oKler grants, thoy contain no cluuau hinting ul any obligation tu sub-grant. The other three K^antK of iIiIh period, however do contain clauses, which, if nanctioned by tlio Crown, wouiil havo changed greatly thocharactor of the grants, aa compared with preoiMling (jrantx. The iirett of thuno in ord»r of time wan the grant, in 1713, of a small Augmentation of a Soiizniory in the OiHtrict of Quebec; und is printed oti pago 04 of the same Volume. '1 liiis grant providus that the grantee shall concede the saul liiiuls ut redevances of twenty so/jand ii capon for each arpent of front by forty in depth, und six dcniers of cent, without jiower to insert in the said concessions cither any sum.suf money or any other charge than that of the mere title of redevancef, and those thereui abore mentioned, agreeably to the intention of his Majesty. Here re-appeared the idea which Raudot, when Intendant, had desired to carry out by an Edict ; but which the King would not carry out. The year following, another grant was maile, of the large seigniory ol Mille Ttles, in the District of Montreal. And here again a like clause appears ; but with this remarkable variation, that whereas in the grant last above mentioned the rate is fixed at twenty koLi and a capon par arpent 9I front hyjurty in depth, in this, of Mille Isles, the tixed price is twenty .s >^and a capon for each arpent by thirty. But what is more remarkable \i>, that this clause was left out in the Brevet by which the King ratiKed the grant in the year 1716 ; showing that the King never had ordered and did not even sanction its insertion. This JJrevet of Uatification is not printed ; but I have had the good fortune to be able to peruse an authentic copy of it, and so to ascertain the fact, that, while it purports to recite at full length all the conditions of this grants the clause in question is omitted from it. The last in date, of these three grants, is that of the seigniory of the Lake of Two Mountains to the Seminary of St. Sulpice. This grant contains the same clau«e as the preceding, except that the rate is calculated on a depth of forty arpenta instead of thirty. And now we arrive at another fact ol the utmost interest and importan«;e. From the extracts Irom these titles, printed some years ago in the Appendix to the Report of the Seigniorial Tenure Commissioners, — and from copiea of the titles themselves which 1 have myself procured, — I find that in the /yreve^ of Ratification of this grant by the King, which was issued in 171S, this clause was — not indeed wholly omitted — but very materially altered, by the King. In the first grant by the Governor and Intendant, the clause reads as I have stated. But in the Brevet in question — the Letters Patent of the King — ii is made to read: — ** On condition * * of conceding the said lands which shall be U7iclearcd (quisermit ** en bois debouty on the terms specified in the first grant, but witli the added clause — " permitting them, nevertheless, to sell or giant at higher dties (d redevances *' jilus fortes) any lands whereof there may be as much as a fourth part cleared.^' It is, then, perfectly apparent, that when the King saw this grant, he did not choose to make the terms so stringent. He said, you must grant your wild lands at this rate, but you may do what you please with any lands which have been partially cleared. — I shall show presently, that some years later His Majesty went much further in the way of relaxation, of even this modified requirement, in favor of these grantees, and with reference to this very Seigniory. In the meantime, it is clear that in these grants the King would not insert this clause. It is not in the ratification of Millc Isles at all, and in that of Two Moun- tains it is cut down to half its original meaning. As to his intentions on this head, some further evidence is to be drawn from the fact, that on the very day of the date of the Arrets ofMarly, he ratified (by a 5rcref of Ratification, to which I have already alluded, and ol which one of my clients has furnished me with a copy) as many as eleven anterior grants ; adding therein new clauses not to be found in the originals, for the purpose of reserving land for forts, &c. ; but not putting in this clause, — and this too, notwithstanding the Brevet in question, purports to set forth in detail all the conditions under which the grantees were to hold. Again, five years later, in 1716, 1 have ascertained that he did precisely the same thing in two other Brevets of Ratification then granted, for concessions originally made in 1702, of the two sei- gniorieiS of Soulanges and Vaudreuil. One of these last mentioned documents is printed on page 240 or the Firtt Volume laid before this House. The other, I have prooured. In one word, the cane i:^ clear, that the inaertion of this clause by the Governor and Intendant in these three instunces, was their own unauthorized act, — dictated, no doubt, by a wish on their part to carry out a policy of control over the Seigniors, tar beyond any thing warranted by the Arrit* of Marly, or even contemplated by the King ; and that tlie King in fact never even aanctioned it in any way. I say never; and the next step in the proof of this, is to be found in the circurastancus of the next grant made after that of Two Mountains. I refer to the grant of an Augmentation of St. Jean or Ma.skinong6 (I hardly know by which name the Auymuntation ought to be called) granted to the Ursuline ladies of Three RiverH, in I7'i7; up to which year no grants had been made since 1717. I have already montioneu that all further grants had been stopped in this latter year; but in \Tt reside upon their grants, and the Seigniors are not " anxious to reunite them to their domains ; and when such re-union is demanded, *' those who are in possession cannot recover back the sums of inonev paid by •* them. ranee, or " We are therefore of opinion that by way of mantaining the Arrets o[' ihe " Conseil d^Elat of 1711, it would be well to render another, prohibiting Seigniors, •' and all oth^ proprietors, from selling wild land, on any pretext whatsoever ; " under penalty against the Seigniors and proprietors of all lands ko sold, of the '* nullity of the deeds of sale, the restitution of the price thereof, and deprivation " of all ritrht of property in the said lands, which should be de plein droit reunited " to the King's domain, and reconeeded, by us, in his name. " It is true that generally the Seigniors concede, or pretend to concede, their *< lands gratis ; but those who evade the provisions of Ihe Arret of the Council, •' take means to obtain payment of the value of such lands, without its appearing " upon the face of the deed ; either by obtaining obligations from the grantees for " sums pretended to be due them for other considerations, or under color of some '* inconsiderable clearing without cultivation, or under pretence of natural prairie '' land found upon the grant. "If it had pleased M. Hocquart to adjudicate upon all the contestations arising " from the abuses which we have had the honor to bring unUer your notice, he '* would have disturbed a number of iamilies and have givi-n occat^ion to consider- " able litigation. He has deemed that the grantees, not having taken advantage " of the provisions of ihe AiretH of the Council which were favorable to them, it " was altogether their own fault if they have paid sums of money for the grants " made to them, and that they are not entitled to recover tSem back, according to ♦* the maxim of law : Volenti nan fit injuria. 26 " We Velieve that it is for the a<'"antage both of the Seigniors and of the " Habitans, to allow matters to remain in their present state, awaiting the Arrit of " the Council, which we have the honor to request ; and not to alter ihe practice " which has heretofore obtained. It would nevertheless appear to us equitable, *' that in the event of clearings or natural prairie land being found, the Seigniors " should derive tlie advantage thereof ; and that in the grants made by them, such *' clearings and prairie lands should be indicated, as well as the amounts received " by them from the grantees. " The wild lands are becoming valuable in this colony, inasmuch as the grantees *' in the front ranges require wood, and are under the necessity of asking for grants ** of land in the third and fourth ranges, to supply this want. The generality of " the Habitans are not aware of the provisions of the .4rrc'f of the Council touching '' them in relation to this matter. Mr. Hocquart has caused some of the principal " among them to be informed upon the subject, without causing publication anew " of the Arret. Before doing so, he awaits the orders which we shall receive from " you during the ensuing year." It, is only justice to Messrs. Beauharnois and Hocquart to observe, that in all this they do not propose to destroy existing contracts: but adhere to the sound principle, volenti non Jit injuria. The proposal they made, was to render the sale of wild lands a kind of crime, to be visited by the penalties of nullity, and so forth. As to the ilrrt'^ of Marly, their understanding of it was most raanilestly, just that which I have given to it — nothing more nor less. It told the Halntant, if the Seignior re- fused him, to go before the Governor and Intendant, and get from them a conces- sion ; but it still left him in this position, that if he chose to go and make a contract with the Seignior, he must put up with the consequence. So understanding, they go on to recommend that for the past, every thing should be left as it was ; and then they propose the new law, which they think should be made about wild lands. — If, moreover, any proof were wanting that the Arret of Marly had fallen into desuetude, this letter would furnish it; for it would appear that in 1730, it was BO little known, tliat Hocquart had to explain its provisions to some of the cliitt' Habitans, — a mode of piocedure, perhaps less open to comment then, than the like conduct on the part of a public functionary of like rank would be now. In reply to this despatch we have next, on page 23 of the same Volume, a letter, or rather extract from a letter, addressed by the Minister ♦© Messrs. Beau- harnois and Hocquart, reminding them that they had been somewhat remiss in the matter of the making up of the papier terrier, or Crown rent-roll of the colony, and expressing a disposition to resort to a line of policy not very closely corresponding with that recommended by them. In their answer to this, of October, 1731, the next in order (page 24) of the extracts under review, these gentlemen excuse themselves for their want of despatch as to the terrier ; and say that the fault was not theirs, but that of some of the vas- sals of the Crown ; and they go on to ask that what they had suggested might be done without waiting for this; adding — " In respect of tne concessions accorded to " the Habitans by the Seigniors, M. Hocquart has governed himself, up to the " present time, by the Arret of the 6th July, 1711, and since he has been in Canada, " has pronounced the reunion of more than two hundred concessions to the domain " of the Seignior, in default of the Habitans observing the duty of keeping hearth " and home." From which we see that these Ministers of tne Crown — who had never acted on the first Arret of 1711, who had never granted a Seignior's land to a Censitaire, had acted on the second Arret of the same date, in two hundred cases. The first Arret, in fact, never was acted on as law ; the second was con- stantly so acted on. The first representations of Baudot in 1707 and 1708, as we have seen, were scar- cely, ifat all, acted upon, in the framing ot'the Arrets of Marly in 1711 ; but these re- presentations of 1730, by Beauharnois and Hocquart, renewed in 1731, produced full fruit in the Arret of 1732, which was passed in exact accordance with their suggestions. This Ar7-et (to be found on page 228 of the Second of the Volumes before this House) orders a new coraminatory publication of the two Arrets of Marly ; and, to prevent the double abuse of sales of wild land by Seignior or Cen- 27 and of the he ArrH of he practice equitable, e Seigniors them, such ts received de grantees ; for grants enerality of il touching le principal ation anew !ceive from atinallthia J principle, lie of wild rth. As to that which Seignior re- 1 a conces- } a contract nding, they t was ; and about wild had fallen .730, it was |f the cliifl' an the like Volume, a ?srs. Beau- miss in the olony, and esponding 24) of the despatch f the vas- might be jcorded to ip to the Canada, e domain ig hearth ■who had s land to hundred Iwas con- lere scar- Ithese re- :)roduced [ith their 7'olumes \rrHs of or Ceur sitaire, expressly prohibits " all Seigniors and other proprietors (tous Seigneurs et " autres proprietaires) from selling any land in forest (tcrre en bois debout,) on pain " of nullity o( the contracts of sale, and of restitution of the price King, the result was a reply, under date oftlie6th of M? .1732, from the Cv, .tO de Maurepas to the Governor and Intendant — of which the ^ Uow- ing is a literal translation : — " I have received the letter which you vrrote to me, on the 21st of October of " last year, with the paper which accompanied it on the subject of the contestation " between the Seminary of St. Sulpice, and the Dame D'Argenteuil. On the " leport which I have made of the whole matter to the King, His Majesty is plea- ** sed to leave to the Dame D'Argenteuil the enjoyment of the Seigniory in ques- " tion. conformably to the boundary line fixed by the Arret of the Conseil Superieur " of viiebec, on the 5th October 1722, on condition that she settle it {qv^elle " Vetablira) and that she do not attract to it the trade of the Indians, and .so injuriously '* affect the propagation of the faith. You will take care to explain to her the inten- '' tions of Hie Majesty, and will not fail to give effect to them." 28 Thus it appears that Mad. D'Aillebousf was to have the seigniory on certain conditions ; but these did not obh'ge her to sub-grant on any particular terms. The report had gone home, that this lady iiad begun to clear upon her seigniory ; and the King replied that she was to continue to do so, but was not to draw to her settle- ment the Indian trade — so counteracting her neighbours' efforts in spiritual matters. This, and no more, the King insisted on. His (Jovernor aiul Inteiidant had been inserting in their grants the clause requiring concession at lixed rales. The King had not done so, — did not do so in this case. In the meantime, Messrs. Beauharnois and llocquarl had begun to put into their grants a new clause — the following: — *'d la charge * * tie /aire inserer parciUes *' conditions dans les concessions qu'ilfera d ses tcnanciers aiuv cens d rentes el rede- *' vanrcs accoutumes par arpent de terre dc front sur quarante de profoundeur,'' — *' on condition * * of causing to be inserted the like conditions," (this clause fol- lows several others, requirinij the grantee to preserve oak timber, give notice of mines, keep hearth and home, allow rouds, and oo forth) oa condition, 1 say of the Seignior's causing the )ike charges to be inserted " in the concessions he shall " make to his tenants at the cens et rentes and dues accustomed per arpent of land ol " front by forty of depth." This clause is vague — ambiguous even ; may be read to mo.'.n, that the grantees shall sub-grant at soma cens accoutumes ; or, as merely meaning, that when they shall so sub-grant, they are to put into their deeds certain clauses, held necessary on grounds of public policy. Beauharnois and Hocquart may have meant to put upon it the former meaning. But that is not the question. The clause is to be read and made out, as it stands ; not explained into a eomethin? else, by any consideration from without. Limiting the terms of a grunt, and this in derogation of the common law, the rule of law is clear,— that any ambisruily in it is to be interpreted favorably towards the grantee, restrictivcly of the limitation to be imposed. Vague as it thus is, this clause was put by Messrc. Beauharnois and Hocquart, and their successors as Governors and Tntendants here, into i'orty-flve of the sub- sisting grants of seigniories in Lower Canada. Three olher grants, those of Grande Riviere in 1750, an Augmentation of Riviere Quelle in the same year, and an Augmentation of Rimouski in 1751, — though granted here by the Covernor and Intendant,— do not contain it, but simply declare the i^rantees to hold on the terms of their older grants. Another grant, during the same period, was made by the King himself ; the second grant of the seigniory of Beauharnois, in 1750 ; and this also contains no such clause, but answers word for word to the earlier grant of 17!29, already remarked upon. So that, between 173) and 1760, there were these lour grants in Lower Canada made without this clause ; and forty-five with it. But I come now to perhaps the most important point of all. How did the King deal with this clause ? If, in ratifying the grants which contained it, he qualified or explained it avray, or wholly left it out, tlieve can be no doubt as to his meaning in the premises. And that he did so, I shall have no difficulty in proving. I begin by taking up the case of one of thcoe foriy-live grant; , as to which we have (in the I'ourth Volume, so often cited) some most interesting correspondence, — the grant of the Augmentation of Two Mountains to the Seminary of Montreal. I need not repeat here what I have already said as to the circumstances of the grant of Two Mountains in 1717, and its Ratification by the King in 1718, on easier terms than those first proposed by the Governor and Intendant ; nor yet, as to the after controversy that had arisen between the Seminary and the Seignioress of Argenteuil, as to the boundary between their properties, and the consequent decision of the King as to the terms on which the latter was to hold the Seigniory "' Argenteuil. The material new fact is, that in 1733, a grant was made by Beauhar- nois and Hocquart to the Seminary, ol a large Augmentation of their Seigniory ; and in that grant they inserted — not the clause fixing a rate of v.ens, which was lirst inserted in the grant of the Seigniory in 1717, nor yet the modification of it which the King had put into his ratification, of 1718 ; but this last, new, ambiguous clause above quoted. 29 y on ceitain irms. The j;niory ; and ,0 hersettle- jal matters, t liacl been The Kin- lut into their 'er par idles ntes el rede- bundeiir,'^— s clause fol- ve notice of 1 say ot the ns lie shall •nt of land ot ,n, that the ?, that when iauses, held have meant ! clause is to Ise, by any 1 derogation I it is to be italion to be d Hocquart, of the sub- se of GraiiJe ar, and an overnor and n the terms lade by the and this rant of 1729, these lour [) it. lid the King lie qualified lis meaning ling. whieh we bspondence, Montreal. :)f the grant on easier as to the Ignioress of W decision iigniory ••' ly Beauhar- fSeigniory ; Iwhich was ication of it imbiguouB I was aware, before I saw the correspondence I am about to remark upon, that the King, H 1735, did, by the terms of his Ratification of this last grant, materially change the tenor of this clause. For the fact had been brought out, by the publica- tion in the Appendix to the Report of the Seigniorial Tenure Commissioners, of extracts from the grant and ratification — showing such to have been the case. But till I read this correspondence, I was not aware how deliberately and advisedly this had been done *, how attentively the matter was canvasseil ; how explicitly the King had put it of recortl on the occasion, that he would not do that which his servantK in the colony were so bent on getting done. To come, then, to the (IriU document of the series, en page 2.5 of the Fou.lh Volume. It ia a despatch Ironi the Minister (his name not given) to Messrs, Beauharnais and Hocquart, and is dated the 6th May, 1734. It opens thus : — " M. PAbbe Couturier, Superior-general of the Seminary of Saint Sulpice, has applied for the conhrmation of the giant which you made by order of the King, to that Seminary, on the 'i6lh September of last year ; but he at the same time prays that it may please His Majesty to explain some clauses inserted in that grant as well as in that which was made in 1717 to the same Seminary, and even to change others agreeably to the draught of a patent (BrcreO which he has presented me. He has asked th.at the boundary line fixed for the Seigniory of the Seminary be altered, and that the same direction be laid down for it as for that of the Sieuis de Langloiscrie and Petit ; and he has represented the necessity of doing so, to avoid the contestations which might arise from diversity of tli- directions of the lines of thoso seigniories; that the clause which oblige? he Seminary to preserve the oak timber lit for the building of the King's ships be restrictetl to such oak trees as may be found on the parts of the seigniory which the ecclcsid&tics of the Seminary may reserve for the principal manor house or domain, a restriction which he has represented as necessary for the settlement of the private grants to be made by the Seminary ; that the clause he suppressed which provides the penalty of re-uniou to the King's domain, in default of actual settlement {(Pctahlirfm el Iku) within the year and day, on t^^e grant ; that the clause be also suppressed which imports (parte) that the private grants shall be made at the usual ecus ct rentes lor each arpent in front by forty arpents in depth ; and as the same claiise is found in the grant of 1717, he asks that it likewise be cancelled ; that the clause be also suppressed, as useless, which provides that the beaches shall be left free to all fisheis : that the clause be likewise struck out, which dsclares that if the King should hereafter want any parts of the land lor the purpooij of erecting thereon forts, batteries, p/acrad'armci', magazines and public works. His Majesty may take them without being held lo any indemnification. ; and ho has remarked that this clause had been insetted in the grant ot 1717, but was omitted in the patent of confirmation of 1718 ; — that the clause inserted as well in the grant of 1733 as in that of 1717, which declares that the ecclesiastics of Saint Sulpice shall hold their lands of His Majesty, subject to '• tlie usual rights and dues, be interpreted, and restricted to simple fealty and ho- " mage at each new reign, releasing the Seminary, when need may be, from all *' dues of amortisseme7it, prestation dViommes vieants et mourants, and others, by '' reason of these grants ; and finally that there be added a discharge from the obli- " gation to buid a stone tort on the land granted in 1717, and an extension of that '• land to six leagues in depth.'' On all these demands, the report of the Governor and Inte.idant Is called for; and it is added that a copy of the drrft prepared by the Seminar) , and of their obser- vations in support of it, accompany the despatch. It is unfortunate, to say t'le least, — with a view to the right understanding of the whole matter, — that these all important documents are not printed. I have tried lo obtain a copy of them in another quarter ; but have not yet eucceeded. The answer of Beaiduunois and Hocquart, however, is printed, an long — on pages 29 and toUowing of our Fourth Volume. Much of it is of no immediate im- portance, as regards our present subject. I cite, therefore, from it, for the present, only such parts as are. 30 The clause of the grant threatening re-union to the domain, in default of set- tlement, — I observe en passant, — in most explicitly declared to be comminatory. The Governor and Intendantiii so many words say, "the Ecclesiastics of the Sem- " inary need give themselves no uneasiness abcut it." As to the clause more particularly under discussion, I translate their language as exactly as I can. It is tiius ; — *' We do not know the reasons which induced his Majesty to fix, in the Letters " Piitent (lirtvel) of 1718, the depth of the grants at forty arpents, and the amount *' oi ihe cens ct rentes. It was thought it would be agreeable to his intentions to " insert only, in that of 1733, — at the usual cens, rentes and dues, for each arpent " of land in front by forty arpents in depth. '* The observation on the justice and equity of proportioning the rroperty, wliich may be more valuable in one place " than another, merits consideration ; and it appears to us that his Majesty might " content himself with merely having inserted in the new Brevet to be issued, — at " the usual cens, rentes and dues, for each arpent of land. " This vague expression will leave the Seminary free to grant more or less in depth, and at more or less cens et rentes in proportfon to the extent of the lands, and even to their value. And as the usages are different in almost every seigniory, the term " usual " will only restrain the ecclesiastics from granting, ordinarily, less than twenty arpents in depth, and from exacting higher rentes than twenty sols for every twenty arpents in superficies, and one capon or its ecjuivalent in wheat. Wilh regard to the cens, as it is a very trifiing due, which has been presumed to be established only to mark the direct seigniory, and which carries with it lo(h et ventes, the usual amount in Canada is from six deniers up to one . ' fo- each arpent in front by the whole depth of the particular grants, whatever that depth may be. " The statement in the memorial, that the Seigniors in Canada, as every " where else, have the right to grant, a cens et rentes, whatever quantity of land " and subject to whatever charges they please, is not correct as to the charges ; <• the unilbrm practice being to grant at the charges above explained, or more " frequently below them. If the right alleged were admitted, it might be abused " by making grants, which ought to be, as it were, gratuitous, (quasi-graluites) " degenerate into mere contracts of sale." It is impossible not to notice here, the strange style in which this document deals with the clause of the Brevet of 1718, as to the qualified obligation thereby imposed, of sub-granting wild lands in lots of a fixed depth, and at a fixed rate. The writers do not know how His Majesty came to fix upon that depth and rate ! Why, the fact — as we have seen — is, that the King never had fixe'' ehher. It was the then Governor and Intendant, who did all that was done in th&c direction. The King had merely relaxed the rigor of their clause ; so showing it to have been theirs, not his. In every other instance, to far as we can find, he had utterly ignored the clause. Not can one help noticing the frank admission made, that the Ecclesiastics were right in their proposition, that of right there ought not to be any requirement made for the sub-granting of lots of any prescribed viepth, or at any fixed rate. True, it is said that the Ecclesiastics were wrong in asserting (as it is manifest they had done, strongly) the absolute right of a Seignior in Canada, as in France, to grant in any quantities and at any price he pleased ; but all that is said against this pro- position (one as clear in law as man could state) is — what? Why, that a *' uniform practice'" obtained to grant at certain charges, <' or more frequently be- low them." Uniform practice, oi'iener departed from than followed! Undoubtedly, it was usual to grant at low rate ; for land was a drug and cheap. But every thing proves there was no '*' uniform practice" of stipulating any particular rate ; this particular despatch, no less than every other on the subject, that has been printed. 31 But, says the despatch, the proposed " expression vague^' of a customary rent per arpent, will leave the Seminary free to do a good deal. " As the usages are different in almost every seitptiory,'" all it will do will be, to restrain the .Seminary from " ordinarily" granting less than twenty arpents, or charging more than .so much. The aenuitiir is hardly clear ; and the word " ordinarilif^ in hardly without a certain significance of meaning. Was the restridion meant to be absolute, or was it not? If not, it was properly no restriction at all. For, how say what rule is > be followed as to its application ? Yet, that it was not understooil as intended to ue absolute, even by this Governor and Intcndant. we have their own written words to show. The answer of the Minister is to be found in the despatch enclosing the Brnrt of Ratidcation, as granted by the King in 1735, — and which despatch is llic next document given us (see page 33) in the same Volume. The clauses of it, having reference to the matters [ am presently discussing, are as follows : — " The obligation of keeping hearth and home within the year on pain of re- " union to the domain, has been expressed in it, agreeably to your observation ; " but this clause is not to be stnctly enforced, and His Majesty relies on your pru- *' dence in this respect. " He has been pleased to change the clause which you had inserted in your " grant, and which is also found in the grant of the Lake of Two Mountainrs, with " respect to the cens et rentes of the private grants ; and, iu conformity with your " ailvice on this article, it has only been declared in the Brevet, that these giants " shall be made subject to the usual cois, rentes and dues for each arpent of land." It is said here, the King has, as to this latter clause, issued his Letters Patent in terms of your suggestion. But, however courteous and accordant with diploma- tic form, such a statement may have been, it happens not to have been the fact. The extract in question from this instrument, has been printed in the Appendix of tlie Commissioners' Report, (though, by the way, not quite correctly,) and it is not in the terms indicated by this despatch, I have obtained a copy of the document ; and the clause in question, in truth runs thus: — " And on condition * * of causing to be inserted like conditions in the par- " ticular concessions which they will make to their tenants, at the cens, rentes et " redevances per arpent of land, usual in the nnighboring seigniories, regard had to " the quality and sitvxilion of the heritages at the time of 'he particular concessions ; " which also His Majesty wills to be observed for the lands and heritages of the *' seigniory of the Lake of Two Mountains, belonging to the said ecclesiastics, not- " withstanding the fixing of the said cens el redevances, and of the quantity of land " in each concession, set forth in the said Brevet of 1718, to which His Majesty '' has derogated." The " expression vague," then, of Messrs. Beauharnois and Hocquart, is not taken. It is made still more vague. I should rather say, it is made clear and unmietakeable. The King had been told that hardly any two Seigniories followed like rultjs. He qualifies the term " usual" {accoutumes) by express reference to neighbouring Seigniories, presumably varying in this respect. He will not at all limit the measure of the lots to be granted. He will not allude to any usual rates, without explaining that they are of course to vary with the quality and value of the lots to be granted, at the times of the concessions to be made of each. What was all this, but in effect, to bid the Seminary make their own bargains, as occasion should serve? The limit really put upon them ; what was it more than this, that if they should charge too high rates, they were to be liable to suit before the Governor and Intendant? If any man agreed with them as to any rate, — was it meant to let him on the one hand keep the land, and on the other get relieved from payment ? The law does not — common sense and justice do not — lightly pronounce the nullity of a contract. A contract must be contra bonos moires, or ex- plicitly prohibited by law on pain of nullity; or it is not null. He who has waived his right, by making a contract that he need not have made, such contract not being by law null, must abide the result. Volenti nan fit injuria. So ruled this very Go- 32 vemor and Intendant, in regard to this very mutter. One nullity only, they had themselves created, — the nulUltj of all mlcs of vnld land by ■whomsoever made. Is even that nullity of force now? " Is wild land escheated to the Crown, de pUindroit, whenever sold ? — Contracts ntjver ihrentoned with nullity, by anything purporting to rejiii as law, are they null f Or rather — for that Ik the question here raised — are they tJ be m-untnined as valid conlracis Jigain.st the gr.anlor, so as to veet the land in the grantee ; and yet set aside uh null iu favor of the grantee, bo as to free him from his obligation to pay, as he has voluntarily promised ? Hut to return. I have .said, there were Ibrty-live graiito in Lower Canada, made from 1731 to 17G0, and having in them (as issued here) this ambiguous clause. We have seen how the King, rn pleinc ronnaiamncr de cavte, saw fit to deal with one of them. How did he deal with the rest ? In the Second of the Volumes laid before Parliament, at page 239, will be found his Brevet of Ratilicalion of one— that of Nouvelle Longueuil ; bearing date in 1735, some montha after that of the Augmentation of Two Mountains above ad- verted to. It is a Brevet drawn in the style, and as nearly as may be in the words, of those of somewhat earlier dates, of which 1 have made mention ; and like them, purport.'* to recite au lovp; the ()l)ligations of the grantee. But it does not contain this clause. Precisely as in former ca.ses the King had lefl out the unambiguous clause then put in by his oflicers,- -eo now, did he leave out this. And this case is no exception to the rule. I have been able to obtain in all, twelve other T^rewAv of Ratilicalicm of different grants, out of this total number of Ibrty-five; and in every one of them the ea^•e is the same. They are those of Rigaud, granted in 1733: an Augmentation of Berthicr, ui 1734; Noyan, in 1735 ; the Augmentation of Lavajtrie, in 1735; L'Aillebout, in 1737; De Ramsay, m 1740 ; I he Augmentation of Monuoir, in 1740 ; the Augmentation of Sorel, in 1740 ; the Augmentation of Lauoraieand Dautre, in 1740; St. Hyacinthe, in 1749; Bleury, in 1751 ; and Sabrevois, in 1751. 1 have not been able to find one, — I do not, cannot believe there is one, — that fails to omit the clause. I have shown, then, — to recount the facts a.s they stand, from the day of the date of the Arrets of Marly,— that on that day the King certainly ratified eleven grants, in terms that imposed new charges on several of the grantees, but without inserting any clause at all bearing on this matter ; that in 1716, he did the same thing as regarded two more grants; that iu the same year he ratified the grant of Millo Isles, (issued here by his lieutenants with the clause of the fixed rate,) in tci ms not imposing that clause on the grantee ; that in 1718, he materially relaxed its .stringency, when ratifying the grant of Two Mountains; that iu 1729, he granted Beauharnois, without it; that in 1731, he granted the Augmentation of Terrebonne, known as Desplaines, not merely without any such clause, but, as one may say — absolutely without clause or restriction ; that in 1732, he in effect granted Argen- teuil, with no such restriction; that in 1733, he ratified the Ursulines' grant of an Augmentation of St. Jean or Maskinonge, again omitting the clause of the fixed rate ; that in 1735, in the case of the Augmentation of Two Mountains, he cut down almost to nothing the newer ambiguous clause by that lime contrived by his lieute- nant.s, as to usual rates, and wholly struck out from the Two Mountains grant of 1718, the stricter clause then lefl: in that grant; that in thirteen other instances, ranging from 1733 to 1751, (being all the other instances as to which I have been able to find out what he did with their grants,) he uniformly omhted this ambiguous ••lause of his Canadian servants' insertion ; and that in 175D, he issued his second grant of Beauharnois,- -still. as ever, omitting it. Is there, can there be, a doubt of the fact, that neither the one clause nor the other ever in truth had the Royal sanction ? Or can there be a doubt that neither the Governors and Intcndants here, nor yet Ihe King and his Ministers in France, over took the Arrets of Marly, to have iixeci do of cens — much less to have made contracts for any higher rate, illegal and n . i' These clauses were put in, to en- able the Governor and Intendant to exercise a power known and felt not to have been given them by the Arrets of Marly. Their insertion was never sanctioned. The King never meant to grant them — never did grant them — the power they thus sought to get. 33 One other point, in reference to tliis correBpomlence o( 1734-5 about the grant of the Augmentation of Two Mountains, may call tor a wonl of remark. The Se- minary, we have seen, complained of the clause riMjuirini; tlieui to leave the beaches free with the exception of hucIi as they shouM require lor their own fish- eries. In their letter, Messrs. Bcnuharnoifl Jinii Hociinart luid entered into Bome explanaliona aa to the droit dc pcchr in Canaila, ns to whii;h I may havo to speak hereafter ; and had in guarded tenntt recoinrncnded the maintenunco of this clause. But what answer did the King make ? '* Thn clause concerning the freedom of '' the beaches has been omitted {relranrhee.) V'ou have observed thattliis clause, " according to the construction put upon it in Canada, otdy meant lliat the Sei- *' gniors should be bound to grant tUoir tenants the rii^ht of fishing; opposite their " lands, on condition oi'tlieir paying a certain rate either in fish or in money ; and " you add that the liberty of hulling, to the tenants, must be favorable to thn sett le- " ment of the laiule, which would bo less in demand if the new tenants were dc- " nied this right, by means of which they obtain a livelihood at the commencement " of their clearings; but it is for this reason that it has not appeared necessary to '< express in ilie Brevet the obligation of granting thai libeity to the tenants; tlie " matter, in fact, is one for private agreement between them and the Seignior " (c'fsf Id, en cffet, unc convpntion parlirvlicre cidrr cux ttle Scignmr)', and besides, " the clause is not in the Brevet of 1718." If proof could be wanting, as to the meaning or efToct of the omission in a Brevet of Ratification of a clause inserted in thelirst j[u that! hiriiMolf, iiiul tliiit ho iiiut pluiiily tohl tho Uurundiiiit that hu meant to fMifurue thill Airct in tho lmsu ; unit ho thun prooueilK to fino llio Dulunilant (ilty Livrea — tio siiiull Hum in tlionu (layn — for his iinpcititiencu in during to (]Uu»tion bin, tho Intoiuiant's luitliority ami impurtiulily ! Wht-roupon, Ntill not without reason, feaiin;,', I NU|>po.Etal dn ifoj/, of da Arrit -not under the Arret of Marly, — but under an -- .,, of date of tho 2uil of June, 172U, — a special evidently predicateil on special ciicumslances of controversy between tho parlies. By this /Irr^/, tho King in Council had declared the widow Petit to be entitled to a deed of this particular land ; and hml ordered the Governor and Inten- dant to grant it to her, if the Ijadiea of the Hotel iJieu Bliould persist in their resis- tance to her claim. — They did persist. — The urgent but vain elforls of the Phiintilf ta bring them to a compliance, are set forth at great length ; and the grant was made accordingly. J t is the one only grant in the King's name, that has been found, — made by a Governor and liitendant wiihin the censice of a granted Seigniory. There ia no other printed, — I venture to say, no other of record. It is a fact not wholly without significance, that neither of these Arrets names any rate of dues. The notion of a uniform rule as to that matter, started by Raudot in 1707 and 1708, is no where— save in his despatches— to be found. A third Ordonnance of an Intendant, M. Dupuy, rendered Nov. 16, 1727, (see page 180 of the same Volume) has been cited, as containing an important leference to this general sulject. It will be found, however, that it has really none at all. The case hi one of tliose, to which I have already made somo reference, — turning wholly on the question of the rate .;t which debts incuired during the currency of the monnaie dta carles were to be paid. Certain Ceiisituircs of Bellechasse naturally wanted to pay their dues, accrued and accruing under deeds which h;id been passed during that period in certain terms, subject to the reduction of a fourth, to convert them, as they claimed, into money of France. Tho Seignior as naturally wanted to be paid without such reduction. In pnrt of his argument, which is given at great length as part of the recital of the Ordonnance, he urges that of all kinds of debts, •Seigniorial dues ought not lightly to be taken to come within the range of the re- duction in question, "because," says he, " the King having willed in order to the 37 latter, fla no other nieunt tu lant (ilty (|IU>r«tiuil witliout \UH canst) tuniliiiit'd usciifnity, nil- rod t(i int meant itliin the III," Hays iuquis of tlid ii.irno ) tht) Miiicl iUlll tlliH projudico procedure ) l;ir Irorn I Jinlyo of idant may iilh^wijre •Is ho liail icli of the .) [mint — jnnance of , — printed (lid in the ivif of the lint it id under an a 8pecial ween the L'lit to bo id Inien- |;ir resis- Phiintilf Ivas made [found, — dgniory. is names Haudot 27, (see jference [e at all. -turning rency of jatu rally passed Iconvert jwanted |at great debts, Ihe re- to the '^ more prompt settlement of the country that the Seigniors here should grant their '* lands lit a low price, (donnasa^rU Us Urrea A bag prij',) thero is liardly any land " granted at mun^ than" ho much, and much that \n L>rantt>d far lower, though covered with wnoil, and so tortli. Add to which, ^ay.<< lu*, pu.ohin^ his arj^unient furiiier, low as tlii'sti their duos are, the Stiignior.s have heavy burthnnn to bear, for all .sorls of objects of public utility ; and it is absurd to supiKwo that tiio King moans tiit;m to form an order of iiohlpaac Iw^re, as ho surely does, burthcned thus, and yet subject to u cutting down of dues .so much too li;/iil lor such ends. Uul all this l)roves nothing ; except that this gentleman saw fit to nrijo this argument in a case where it really had no legal bearing. Good or bad, as fact or argument, it 'S his mere statement made for a special purpose uniler iiecuiiur circuinstanees. Tho Juilgrncnl did n'>t turn upon it, — and neither embodies nor at all indicates any ex- pression of the Intendant'ii notions (supposing even them to signify) as to the matter. A fourth (JrrfoJiMujirc has been cited ; rendered by Mr. ilocquart on the 23id of January 1738, and which is to be found on page 170 of the eamo Volume; the Or(/()7i?iana' in liict which was piinted during the last Session ol Parliament at TOroiilo, as bearing on this question, But, liUe the ollieiH I have remarked upon, it will be found to have really nothing to do with it, Several Huhitans of (iaudar- villo in this case impleaded their Seigniorese, the Delle. I'euvret, demaniling — not a grant of lands which she had refused to make— but *' tillen in due fum of tho " lands she had conceded them, {litrfs in lioiivv forme des Urrta qu-cUe Icur a con- " ccdu's,) and that, upon the footing of the titles of the other lands of the said Sei- "giiioiy.-' Her reply was, that she was quite willing to pass 'Meeds to the HabUnnt " Plaint ill';*, of tho new lands she had granted, the i^ame to bo taken inunediately " behind the first grants of the eaiil seigniory, — and at the ctnn, lentts and seignio- " rial lines wliirdi tho Intendanl should pleatie to indicate (ct aiix CfJis, vtntea ** el dniiin ifcii!;ncniiuu.v iju'il nous plaita rigler.^') Hereupon, the Plaintiifs objected by their answer — and this manifestly was thetsole point in seiious dispute between the parties— that behind the first range of grants there was u swamp, and that their lots ought to be marked off in rear of itr To this the Seignioross in turn made objection ; and here the Intendant had to decide. The (JranJ Voyer visited the ground, and lejioited. The Intendant settled the point in favor of-lho Seigiiioress's pretention; and, so doing — and in terms of her express consent, of record in the cause — directed that the grants should be " at the ce»(S,re/i/e» ordained " by His Majesty, to wit: one sol of ecus per arpent of front, and one sol of rente •* per arpent in supeificies, and ti capon or twenty sob at tho choice of the said " tSeignioress, per arpent of front." — " Ordained by His JVlajesty." How ? When? dpropua of what? There is nothing to show. It may have been, that such orders had been sent out, in reference to grants en censive, within lire domain of the Crown ; though the fact is at least noticeable here, that these rates are not tiiose which, as we know from other documents now publiished, were fixed lor grants in the censive of the Crown, about the same period. To this consideration I shall have to advert presently : and I pass from it therefore now, merely observing as I do so, that it is certain that at this very period the Governor and Intendant were fixing variant rates of dues, not identical with this rate nor with each other, for ceiisivr grants Vr'ithin the Crown domain; and, that the case, as an authoritative decision, amounts to nothing, because — as I have said — it purports to have been on this point a mere Judgment by consent. Fir aught we know, the Seignioref.s may have gained by it, may have got higher rates i!'.ari those of her older grants. Nothing in the case indicates that they were lower. One more Ordoiinance I cite in this connexion ; not as making against my view, (lor I have found none that do,) but as the one other, which I have found, indicative of any material control exercised by an Intendant over the terms ol a grant a ccns made by a Seignior, It is another Ordonnance of Mr. Hocquart, under date of the 23rd of February, 1748, and is to be found at page 202 of the same Volume. In this case, the Fabrique of Berthier impleaded the Seignioress, to obtain from her a notarial deed to a lot held by them for the last thirty-eight years, under a billet de concession. The Defendant declared her willingness to pass the ileed, but demanded to be allowed to insert in it certain clauses, — one to the effect that the land, if ever alienated by the Fabrique, should become chargeable in her favor with a certain rate of dues, stated by her to be that of the other lands in her ii 38 Seigniory, — and some other clauses of a kind not likely to have been contemplated at the time of the granting of the billet de conccxsion. To these latter clauses the Fabrique gave no consent ; ind the Intendant, rightly no doubt, disallowect them, — and directed the passing of a deed thai should merely stipulate for payment of du es by any party acquiring from the Fabrique. The rate named in the Judgment ia not identical with that proposed by the Seignioress, as the rale usual in her sei- gniory; the former being partly payable in capons, and the latter in wheat; and no reason is given for the variance. Indeed, it reads as though made by inad- vertence. Be this, however, as it may, so much at least is clear, that this Ordon- nance, equally with the others I have been commenting on, is not a case ever so remotely coming within the purview of the enactments of the ArrvL^ of Marly. I say more. I dare not undertake to weary this Honorable House with com- ments on every Ordonnance and AitH in detail ; thus over and over again to prove a negative. But this I must say, after thus remarking on these cases, — the lew I have found, of a tenor which has seemed to me to call for notice here, — that I have most carefully studied every printed Edit, Arret and Ordonnance laid before this Honorable House in connection with this whole subject, and every other that I hakVe been able to find ; that 1 have arranged them all in order of date ; have read and re-read them all, so arranged ; have made a written abstract of them all ; and, though I will not say that the Edit, Arrdt or Ordonnance does not exist, which shows this procedure by Habitant against Seignior, provided for by this Arret of Marly, in some stray instance to have been resorted to and carried out, I will and do say, that after every efibrt made I have not found it. I do firmly believe that it ia no where to be found. And not only do I find no proof of this procedure under this Arret of Marly having ever been carried out; I fail equally to find a case of the enforcement of the alter Arret of 1732, which prohibited all sale of wild land, by whomsoever made, under pain of nullity and escheat. Both, so far as one can see, were mere threats. I will not say they were never meant for more. But that they were no more, I cannot doubt. Indeed, that this part of the first >lrrt'/ of Marly had fallen into desuet^ide, ia fur- ther to some extent evidenced by the tenor of the Declaration of the French King, of the year 1743, to be found on page 230 of the Second Volume so often quoted. By that Declaration the King undertook to regulate the course to be followed by the Governor and Intendant, and in pioceedings had before them, in regard to the mat- ter of the granting and escheating of land. But there is not in it, nor yet in the King's subsequent Declaration of 1747, (on page 142 of the Third Volume laid before Parliament) explanatory of it, — any reference to this peculiar procedure (most of all requiring regulation, one would say, if then a procedure really ever taken) for the quasi escheat of land part ofa granted Seigniory, and its giant by the Crown to the Habitant, prosecutor in the cause. It was not a procedure periously thought about. I would not be misunderstood. My position is not, that the Governors and In- tendants let the Seigniors clone. They let no one alone. They were for managing everything and everybody; for not allowing wild land to be sold by any one ; lor not letting men of any class make their own bargains or deal freely about anything. I dare say they interfered with Seigniors. Very likely — the Arrets of Marly not coming up to their notion of the extent or kind of interference they were inclined to resort to, — they interpreted thnm more or less to be what they were not. Some >jl the Arrets I have remarked upon, are indicative of this sort of thing. And very possibly a vague impression as to what might be done by an intendant in any given case, under color of his notions of these Arrets, or representations as to what was the King's pleasure, may have had more or less of effect at one time or an- other, in leading Seigniors to concede at lower rates or under less onerous charges and reserves than they otherwise would have done. The same kind of considera- tion, no doubt, influenced other classes of men as to other matters. But such influence was no influence of law ; changed no man's tenure of his land ; affected in no way the legal incidents attaching to a man's property. And without any such influence operating to that end, it was impossible the rates of concession of land should have been high. By 1663, we have seen that not fa ui tv F di S( ot at 80 (ind 39 far from three millions of arpenls of tho land now ao held, had been granted en fief ^ under those of the titles of that period which still remain in force ; and perhaps twice that quantity had in all been granted un 8 always noen proportioned to the veritable product of the estate granted " d cens, when the parties have made real grunts d cetis, and not sales disguised " under the name, and that it is not in its nature a mere fictitious, honorific due." The cens et rentes here in question, iio less than the cens ct rentes of old subsisting in France under our Custom of Paris, bear, and ever have borne, this legal charac- ter ; are as to amount and kind, whatever the parties may have agreed to make them ; represent the consideration of the grant, in terms of the contract establish- ing the grant. To turn to facts. The terms of a few grants en censive, made befire 1G63, are to be found in the First of the Volumes laid before Parliament. In 1G39, for instance, (see page 351,) a piece of land close to Quebec was grarrted at one denier, the twelfth part of a half-penny of our currency, per arpent. In 1647 (page 12) a tract of a quarter of a league by a league in depth was granted at the same rate ; but with tlxe proviso, ! ^11 40 that such rate per arpent was to be paid " lorsqu^U sera en valevr 8eulemmt,—as it " shall be brought into cultivation only," — a curious passing indication of the idea then entertained of the value of the twelfih part of the coin now passing as a half- penny. Two years after, in 1649, (page 382) land at Three Rivers was granted at the enhanced rate ot three deniers per arpent; and in the same year (page 344) two months later, other land, to be taken at Thtee Rivers or Quebec, was granted at the further advance of six deniers per arpent. These grants, and some others like them, are grants by the Company of Now France. Almost at the same date, in 1648, I find mention in tho recitals of an Arret. (on page 176 of the Second Volume of the Edits et Ordonnances,) of a grant d cens by a Seignior, at the rate of twelve deniers per arpent of cleared or meadow land, together with a quart of well salted eels. And it may be added, by the way, that this grant (thus early made) stipulated the droit de retrait, or right of pre- emption by the Seignior, in case of sale ot the land by the grantee. I was desirous to have had it in my power to lay before this House some- thing like a statement of the extent of range of the variations observable at different periods and in diti'erent parts of the Province ; but they are bo almost infinite, that 1 soon felt it to be quiie impossible, with the very little time 1 was able to devote to this particular branch ot research. A friend, to whom I applied a few days since to aid me in this respect, was able to spend a very short time in an examination of a limited number of old grants in the vaults of the Prothonotary's Office at Montreal. Taking the first in alphabetic order, of the names of the Notaries of the old time, whose minutes where there deposited — that of one Adhemar, — and striking on the year 1674, as remote enough to fall within Mr. Raudot's times of innocence, he examined as many of that Notary's deeds as the short time he could give to the matter allowed. From their state and style of writing he was unable to examine many in that time ; but all that he could examine showed an almost incredible ab- sence of rule or usage, as well at that date as \t others, — whether as to amount or kinds of dues or as to the quantities granted, or as to the clauses and reserves attached to grants. Hereafter— so soon as time shall allow — I will establish this fact (for it is a certain fact) beyond the possibility of doubt, by ascertaining and laying before the public the terms of a sufficient number of these all-varying deeds. For thf! moment, I must be content to cite four; the first four that my friend chanced to ex xmine, and of which I hold authenticated copies in my hands. They are of dat'.s falling within eight consecutive days of September, 1674 ; the first, being of thd 5th, the eecond, of the 12th, and the third and fourth, of the 13th, of that month ; In fact, I believe them to be the four consecutive deeds of concession which it was that Notary's fortune to pass in those eight days. The first, second and fourth, are of grants in B.itiscan ; the third is of a grant either in Batiscan or Cap de la Mag- deleine. Either seigniory belonged to the Jesuit fathers ; presumably not the most exacting, or irregular in procedure, of the Seigniors of the time. The first of these grants is one of forty arpents by forty ; sixteen hundred square arpents. The )'early dues are stated at thirty Livres Tournois, ten capons, and ten deniers (ten twelfths of a half-penny) of cem. Valuing the capons at fifteen sols a-piece, the money rate per arpent is something over half a sol — something over a arthing of our currency. The second of these grants is of four arpents by an unstated depth ; the rate, one sol Tournois per arpent, one capon per twenty arpents, and four deniers, (one-third of a half-penny) of cens : in all — upon the same valuation of the capon — about one sol and three quarters per arpent, more than treble that of the grant of the week before. The third is of two arpents by forty ; the rate, as though the parties had not liked ever twice to do the same thing in the same way, or on like terms, is stated at half a boisseau of wheat, two capons and two deniers of cens. The fourth — a grant of sixty feet square near the mill of Batiscan — is for three Livres Tournois, and one denier of cens; a rate of more than one sol for every foot of front by sixty feet of depth. Slim by| mil Fi\ 2ic 41 ttuantilies — amounts — rate — styles of rate — could scarcely liavo varied more. Again, to take another kind of proof, and from another and later time. In 1707 and I70S, wufind M. Raudot complaininn; of the e.\traordinary diversity everywhere prevailing; sonding home a tabic to exhibit it ; and proposing, hy way ot remedy (see pagtj S of the Fourth Volume laid before this House) the adoption of a rule of universal application, of the rate of " a sof of rew/c per superficial arpent, and a *' capon or twenty sols at tiie payer's choice, per arpent of frontage." As we have 8een, the suggestion was not adopted. In 171G, when the subject was again under review, nothing approaching to it appears to have been suggested by iMr. IJegon, or thought of by any one else. Between 1734, however, and 1753, we have copies of .«ome ten grants en <:cn- aive, (printed in the First and Fourth of the Volumes laid before Parliament,) made by the Governor and Intendant for the Crown. And here, at all events, if unifor- mity of rate could have been the rule any where, one would expect to find it. Five of these grants, from 1734 to 1750, (Vol. 4, page 27, and Vol. 1, pages 242, 243, 217, 248 and 249) are at the same rate, being all grants near Detroit. This new rate is one sul of cens per arpent of front, twenty sols for every twenty arpents of extent, and a quarter of a minot of wheal per arpent of front by forty arpents. A sixth grant at the same place, in 175^, (Vol. 1, page 25J,) is made nominally at the same rate, but the depth being sixty arpents, the real rate per arpent is, b-o much lower. A seventh — of the Isle aux Cochons, in Lake Erie — in 1752, (Vol. 1, page 251, is made M'ith no reference to this rule, at two sols of cens, four Livrcs of rente, and a rainot of wheat, for the entire grant — being twenty arpents by half a league. The eighth and ninth of these grants are ai Port St. Frederic, in 1741 and 1744, (Vol. 1, pages 245 and 246,) and the rate is an advance — not inconsiderable, according to the notions of those times — on that of the four grants at Detroit lirst referred to. It is one sol of cens per arpent of front, twenty sols of rente per twenty arpents, and hatj a minot of wheat (instead of a quarter) per forty arpents. And the tenth grant of the number, at La Presentation, in 1751, (Vol. 1, page 250,) being of an arpent and a half square, for convenience of a saw-mill built by the grauiee, is at live sols of rente, and six dcnicrs of cens. No observance, therefore, of a fixed rule, oven in the censive of the Crown ; the Governor and Intendant, granting ; and through the period presumably that of the nearest approach to regularity of system ever attained under the French Gov- ernment. ?d square and ten ;een sols rate, one ne-third Dout one week rad not Itated at In truth, uniformity ot rule and absolutism have very little to do with one another. We have seen already that even in the four cases, between 1713 and 1727, in which the Governors and Intcndants attempted, by their fixed rate clause, to enforce a rule on irrantees of vSeigniories, they could not bring themselves to make that rule one ;»nd the same, — but, by prescribing three diflerent depths of grants in three out of the four caies, laid down in truth three different rules, for three several Seigniories. The recitals of numbers of the Ordonnances and Arrcls, as we lind them in the Second of the Volutpes laid before this Honourable House, all tend to the same conclusion. Over and over, we find the Intendantg taking cognizance of rates not at all alike ; and constantly enforcing them, just ns tlie contracts chanced to set them forth. Sometimes, the Arrets clearly show more than one rate in a Seigniory. In one, that occurs to mo, (to be found on pace 165 ot this Second Volume.) three such rates are incidently referred to as co-existent in one and the same Seigniory ; and this not as a matter at all extraordinary — as in truth it was not. Further, to turn to still another description of prooi'. In the table on the subject, printed as part of the Appendix to the Seigniorial Tenure Commissioners' Report, (see pRges 159 and following of the Third of the Volumes before Parliament,) are stated, in all, the teims of some forty-seven grants enccnsivc, of dates prior to 1760, made in eighteen Seigniories. And these grants exhibit soYae forty variances of rate. In one Seigniory alone, six or seven of these variances are shown ; in another, five ; in several others, two, three or four. 42 But to what end heap proof on proof, of a fact so certain,— so every where patent on the face of every document we have, that at all refers to it ; of a fact so consonant with every probability arising out of the antecedent law of the land, — so cenainjy made known as a fact, to the Crown by its Governors and Intendants, — so certainly recognized and sanctioned by the Crown ? There can nothing bo proved, if this is not. I pass to another consideration. I said, not long since, that the Seigniors, if at all more controlled by the authorities than the law warranted, were at all events not the only parties so controlled. But that is not all I must say. They were the parties least so controlled. Why, the very obligation imposed on so mnny of them by their deeds, was an obligation to aid in controlling the class below them, — to compel that class to live on their lands, to reserve oak timber for the King, and so forth. Before, as well as after the ^rre/s of Marly, the grants made to that class were constantly escheated for failure so to settle them. — The complaint of the Intendanta was, that the Seigniors were only too little zealous in enforcing this control. The ^rrSls of Marly threatened a penalty hard of enforcement and not prnc'ically enforced, against the Seignior, and for the CensHaire ; but contrived the shortest and most summary mode possible — a mode constantly resorted to — of enforcing its penalty against the Censitaire, and for the Seignior. The ^rrSt of 1732 pretended, — not to annul isimply a Seignior's sales of wild land, — but all such sales made by any one. If ever enforced, we may take it for certain, that the Censitaires* sales would not have beer, the sales to escape the forfeiture. The Censitaires were not then the powerful or favored class. Even where favored, it was seldom to an extent that would be thought much of, in days like ours. For example, in 1706(1 refer to page 35 of the Second Volume laid before this House) Mr. Raudot was called on to interpret a Clause, general if would seem in the grants made by the Seminary, in their Seigniory of Montreal, (and in those days, by the way, not uncommon else- where,) by which that body had reserved to themselves the right to take without payment any quantity of wood they pleased on their Censitaires' land. The Seminary expressly consented, as a favor, to limit this reserve, to thr right of cutting- down for their own fire wood one arpent in every sixty, to be chosen by themselves, near the clearings of the Censitaires, and for their buildings or other public works any further quantity they might require. — And this offer was accepted ; and by such consent of parties, Mr. Raudot pronounced accord- ingly. At all dates, we find the Intendants strictly enforcing the prohibition to fish against the Habitants, unless by leave of their Seignior, from whom they had to acquire the right — of course for value. The same strict enforcement was uniform, of the Seigniors' right of banality, of which I shall have to speak more hereafter, and by virtue of which no man was allowed to resort to any other than his Seignior's grist mill. And even as to Corvees, or the obligation to involuntary labor at the Seignior's requirement, notwithstanding the Ordonnance of 1716, printed last year at Toronto (and to be found on page 57 of the Second Volume now before this House,) under which it has been contended that all Corvees were then prohibited, — and notwithstanding the dislike of them expressed to the Government at home, in 1707, 17G8 and 1716 by Messrs. Raudot and Begon, — not even herein was the Censitaire in fact relieved. Everywhere I find them enforced. Nay, as late even as 1723, (see page 85 of the same Volume,) I find an extra day of Corvee ordered by the Intendant, for all the Habiians of 43 Longueuil, on the ex parte demand of the Seignior — the Censitaires not so much as summoned to make answer to the demand before judgment rendered. And this control and these interferences were not merely resorted to, in matters where the Seignior's interests may be said to have dictated them. In 1709, for instance, — I quote now Irom page xli of the Second Volume o( Edits et Ordonnances, publislied in 1806, — Mr. Raudot, whose especial mania for interference with all sorts of people and things I have so often had to notice, issued his ukase, " forbidding the Habitans of the neighborhood of Montreal to " keep more than two horses or mares and one colt, as their doing so would " prevent their raising horned cattle and sheep, and would lead to a scarcity of " other animals." From this absurd caprice of an Intendant, I pass to a piece of serious legislation by the King, as to which again thrre can be no mistake. In 174'5, — I cite from page 151 of the First Volume of the Editset Ordonnances, published in 1803, — the King by an Ordonnanre. forbade the Habitans throughout the country, to build any house or stabic vhether of stone or wood, on any piece of land of less extent than an ar; ■• and a half by from thirty to forty deep, unless it were with .. the limits of .ome iourg- or village declared such by the Governor and Inte.Jant i -mA this, on pain of demolition of such building and 100 Livres of fine. And from the time of its promulgation dovi^n to 1760, that Ordonnance with all its severity — a severity pressing only on the Habitant class — was, as is well known, most rightly enforced. And it did not quite come up to the ideas cherished by the functionaries of the then Guvernment, as to the extent and oppressiveness of the control that ought to be brought to bear on the unfortunate class of men for whom it was intended. By all means whatever, they were to be forced to abide the life of risk and hardship then falling to the lot of the rural settler, — neither suffered to hold only so much land as ihey might want, nor under any pretext to leave their forest wilderness for ;he easier life of the town. By 1749 (seepage Ixxxvii of the Second Volume of Edits et Ordonnances, of 1806) an Intendant's Ordon- nance, " with intent to advance the cultivation of the country, forbids the " Habitans who have land in the country, from coming to settle in town, without " leave of the Intendant granted in writing ; and orders all persons of the town " letting houses or rooms to any whom they shall suspect to be Habitans of the " country, to declare the same to the Lieutenant General of Police," — of course that they be sent back, punished or unpunished, as occasion shall require. Control ! Every one, 1 repeat, was controlled, as happily none can be now. But the weight of the control pressed on the Censitaire, The Seignior in comparison was free. Such as it was, moreover, that control is of the past ; to all intents, as regards the law of the land, is as though it had never been. No man's tenure of his property is affected by it ; neither Censitaire''s, nor Seignior's. Both hold as proprietors ; their rights defined and protected equally, by the law. — For my clients, I am here, not to ask for a return, in any the very slightest particular, towards the old system under which they were (as I have shown) the comparatively favored class. I recall that past, as it was; only that I may prote.Ht on their behalf against the monstrous error and injustice of any attempt now to subject them (and them only) to its influence, — or rather to the in- fluence of a system of arbitrary, despotic interference, ether and far worse than that past ever inflicted on their predecessors, — SMch as may not, cannot be made to affect any class whatever, where (as with us) the law nlike and equally protects all classes, all property, all rights. 44 I proceed to another portion of my arEument. I ha* 6aid, that the propo- sition on which alonfl this Bill can for an instant be ilefe ed, is ilie proposition, that the Seiguior.s of Lower Canada are not truly proprietors, but trustees bounil to concede at some low rate, and under lew or no conditions or restrictions ; and that this alleged trustee capacity of theirs, if it be the fact, must aris-o either from something in the tenor of the antecedent law of France, as interpretative of their position ; or from something done when their grants were made, or afterwards, down to the cession of this country to the British Crown ; or from something done since that cession. Unless I am much mistaken, I have shown, that alike the tenor of the old law, the terms of their grants, the action, legislative and other- wise, of the French Crown, and the whole course and character of the jurispru- dence (so to speak) of the country, while under the French Ciown, establish in terms the contrary proposition ; prove that, to the date of the cession, they not only were proprietors, but were even the proprietors who held by the higher and more perfect and favored tenure, — were in fact emphatically the proprietors of the favored class. Pas.^ing now to the period whicli has elapsed since the ces- sion of the country to the British Crown, I believe that my turther proposition, that nothing has been done since the cession to take from them their proprietor quality, does not require much argument for its support. I shall easily show that the history of this whole matter since the cession, is such, as to suflice of itself to assure to them that quality, with all its incidents, were it even doubtful (as it is not; how lar it attached to them before. But, before occupying myself with this part of my subject, I perhaps ought to offer some remarks on a point which mny be said to suggest itself incidentally, as one passes from the consideration of the French period of our history, to our own. It is this ; how far what has been said and written since the cession, can be suilered to affect our inferences on this matter, drawn from what we have before us of all that was said and written previously ; how far, in a word, liie expressed opinions of men of mark since the cession, can go to prove the exis- tence before that date, of a state of things in Canada, different from that which 1 have (as I think) established, by the examination of the grants, Arrets, Ordon- nances, despatches and other documents of all kinds, of date before the cession. The truth is, that the tradition (so to speak) against which I argue, is attri- butable to statements made since the cession of the country. It has grown up since that period ; and it may not be uninteresting to show how it has grown up ; and that it has done so in a manner and under circumstances to attach no importance whatever to it. At first sight, indeed, this must seem tolerably ob- vious ; for it is a maxim of law, and of common sense too, that the best evidence alone is to be taken. If it be the fact, that from the tenor of the law of France, of the Seignior's grants, direct from the French JKing or through his officers in the colony, and the legislation and jurisprudence of the country under the French Crown, one has to assign to the Seigniors of Lower Canada the quality of proprietors — as I have shown it to attach to them ; if this, I say, be proved by the best — the only real evidence we can obtain ; it is not necessary to show how any counter-impression may or may not have since grown up. But, evident as this is, I may be allowed, 1 trust, in consideration of the extent to which it has latterly prevailed, to offer some observations by way of accounting for its origin and progress. Perhaps there never was a country in so peculiarly false a position with respect to its traditions of its own past, as Lower Canada. On the occasion of the cession, the high officers who had administered the government left the country : with them they took its confidential archives ; with them.went, too, the superior judicial functionaries, and a large proportion of the men of higher rank ue, is atlri- 45 and belter education ; leaving behind them, comparatively few who were not of * the less educated class, or at any rale of the class less capable of prescrvino; in ' the country a correct tradition as to the spirit of its old institutions. New rulers arrived in the Province, not speaking the tongue of those among>i, whom tlicy came, and whom they had lo govern ; wholly strangers to their laws, usages, and modes of thoiiglit and feeling ; bringing with them the maxims and opinions of the niition of all others the least resembling that which had first settleil Canada ; not at all the men to seize — or even to try to seize— the peculiarities of the law they came to super- cede ; whothtras to the prerogative of the French Crown, the confusion of legis- lative, judicial and executive functions pervading its whole system, the uncertain and purely con)minatory character habitually attaching to it, or the vast and complex delajl of laws and rights of property subsisting under it. All this, I say, they were not likely to understand, or make the effort to understand. The law of England, their law, one need hardly observe, is essentially a law of unwritten custom ; and most of al', perhaps, with regard to that particular description ofEngli-'h real property, which answered most nearly to what they here found subsisting as land held en censive. In England, copyhold pro|ierty is almost entirely — perhnps I should say, is entirely and essentially — governed by unwritten customs peculiar to the different manors and holiling;!. The very term " Custom," as they found it in use here, was ate.m calculated to mislead them. The Custom of Paris here established, and the other Customs locally prevalent in France, were not unwritten customs, like those of an English manor, or the great, general body of unwritten custom known as the Common Law of Eng- land. They were written documents, enacted by authority — Statutes, in English ' phrase, >iot Customs. Indeed, in Canada there was even less of resort to unwritten usage, as regarded the terms of the holding of censive lands, than in old France. In France, undoubtedly, in many cases, rates of ccn* and other dues could only bo traced back to local unwritten usages which, as it were, supplemented the known written Customs of the land. But in Canada there was no dark anti- quity to peer int.) ; here every thing was new, liad had its origin within a date that could be reached ; every grant d ecus was by an authentic instrument, the precise tenor of which could be ascertained ; or if in particular instances it hap- pened that this was not the case, it was merely that the parties had tru^ted each other's faith, and so entered into a contract which they might possibly have some practical difficulty in proving and enforcing to the letter ; hut the terms of which were yet to be ascertained and enforced in ail such cases, as well as might be, in common course of law. All this, I repeat, was not calculated to lead to a very correct first impression, <>n the part of these new rulers of this C( untry. Inclined naturally to see in the Canadian Seigniory an English Manor, and in its Censitaires a body of English Ci pyholdert', it was not possible lor them to avoid attaching too much weight to the notiun of custoinary rates and obligations, and too little to the terms of the actual contracts. They hardly could realize how entirely in Canada the exis- tence of these written laws and written contracts dispensed with — precluded, one might say — reference to unwritten custom in this class of cases. ■ J' And this was not all. If they had been ever so disposed to study Canadian law, — as they were not, — they would have (bund it hard to do so to much purpose. Books of such law were not plenty to their hand ; nor of inviting bulk, or style, or language. Of the model treatises on French law, to which at the present day lawyers of all countries resort, by far the greater part did not then I 1 46 exist. What hooka there were, were the older, larger, in every sense heavier volumes, of an earlier age. They were little likely to find readers in men, inclined neither to fancy their language nor their law. The Provincial records, moreover, as I have said, were in the same foreign tongue, in a hand-writing not easy to decipher, imperfect, in disorder; and there were few or no persons in the country, likely much to help the authorities in the attempt to find out what they amounted to. Besides, the first Courts in the country, after the cession, by courtesy called Courts of Law, were Military Courts, made up of soldier-judges ; and as, no duubt, it is true that the lawyer is apt to be an indifferent soldier, it is no less true that the soldier is apt not to ne much of a lawyer. And even this was not all. These Courts, thus set to dedifre and administer the law of the land, were set to declare and administer they knew not what law. The general impression with the new, English ruling closs, of course was, that a great deal (/f English law was to be introduced ; and it was a question that no one could answer, how far French law, how far English law, how far a mixture of the two ill some way or other to be worked up, was to be the rule. It was under these circumstances that an jJrret, the only one ol the kind which I find cited, as making against my clients' interests, and of which I have now to speak, was rendered. I refer to the JlrrSl of the 20th of April 1762, printed on the la^t page of the Fourth of the Volumes laid before this Honorable House. It purports to be taken from the Register of Jlrrels of the Military Council of Montreal ; such Council composed of Colonel Haldimand, the Baron do Munster, and Captains Prevot and Wharton ; four highly respectable otficers of Her Majesty's army, I have no doubt. And it reads thus : — " Be'.ween the Sieur Jean Baptiste Le Due, seignior of Isle Perrot, Appel- " lant from the sentence of the Militia Court (,Chambre des Milices) of Pointe- " Claire, of the fifteenth March last, of the one part ; — " And Joseph Hunaut, an inhabitant of Isle Perrot aforesaid, Bcspondent " of the other part ; — " Having seen the sentence appealed from, by which the said Sieur Le " Due is adjudged (condamne) to receive in future the rents of the land which " the Respondent holds in his Seigniory at the rate of thirty sols a year and " half a minot of wheat, the Court not having the power to amend any o! the " clauses contained in the deed of conceesion executed before Maitre Lepailleur, "notary, on the 5th Aug. 1718; the petition of appeal presented to this " Council by the said Sieur Le Due, the Appellant, answered on the 19th " March last, and notified on the 3rd inst. ; a written defence furnished by the " Respondent, and the deed of concession referred to j and having heard the " parties ; — " The Council, convinced that the clause inserted in the said deed, which " binds the lessee (preneur) to pay yearly half a minot of wheat and ten sols for " each ari)ent, is an error of the notary, the usual rate at which lands are granted *' in this country being one sol /or eacharpent in superficies and half a minot of " wheat for each arpent in front by twenty in depths orders that in future the " rents of the land in question shall be paid at the rate of fifty-four sols in money " and a minot and a half of wheat a-year." 47 Now, what is Ihis Judgment worth ? Four gentlemen, not lawyers, reverse a sentence which every lawyer must say was perfectly sound and right ; and condemn a Censitaire, who by his written contract was to pay thirty sols and half a minot of wheat only, to pay fifty-four sols and a minot and a half of wheat! The Court below had maintained the contract ; the Seignior, for some extraordinary reason, had appealed ; and, what is more extraordinary, the Court maintained the appeal, — not, be it observed, reducing the rent, but raiding it, so as actually to give the Seignior more than his written contract established in his favor. And they did thitt, not on proof of circumstances, showing the deed to have been wrong, as they took it to be ; but merely on the ground of the supposed existence of a customary rale bo fixed and invariable as of itself to prove the clause of the deed an error. And this, in a deed of forty-four years standing! And thsugh, as we have seen, at all times, as well after as before the time of its date, all manner of varying rates had ever prevailed — the Go- vernora and Intendants themselves testifying. And though the very rate which they coolly declared to be the one leg.»l rate of " concessions in ihis country,'''' absolutely was not so much as one of the various rates which we know to have been prevalent, in the Crown censives immediately before the cession. I have shown that most of the Detroit grants .tf the Crown, at this period, were made at a nominal cens ; with a sol of rente per arpent, and a qua', Ur of a minot of wheat for every arpent by /o//y ; some, however, fixing this same quantity ot wheat for every arpent by sixty ; and I have shown that there were Royal grants during the same period at Fort St. Frederic, where the rate was the like cenSi the same sol per arpent,«nd the half of a minot of wheat,per forty arpents. And we have hsre the declaration (par parenthese) that any rate below thj yet higher allowance of a half minot per twenty arpents, is so repudiated by custom, that though stipulated before notaries forty-four years ago, a Court of law is to pronouuce the deed wrong and raise the rate to this new standard. The Judgment is merely as unjust and mistaken from first to last, as its authors could well have made it. It furnishes one further proof, that in fact there was no fixed, known rate ofcuncesdion ; and it proves, for all matters presently in issue, nothing more. To return, however, to the matter more immediately under consideration — the question of the rise and progress of the mistaken impression which has grown up, as to the existence of this supposed fixed rate, and so forth. Till 1772, 1 am not aware of the appearence in print of any work purport- ing to set forth the tenor of the old French laws and customs of Canada. There was then printed in London, for Parliamentary purposes, (Parliament being then on the point of discussing what became the Quebec Act of 1774,) a remarkably well drawn, though short, abstract of those laws and iisages, which had been sent home by Governor Carleton, from a draft prepared by a committee of French Canadian gentlemen. About the same time there appeared also a publication by Mr. Maseres, who had been Attorney General here some years previously ; and which contained, not indeed anything like a connected statement of Canadian law, but several papers and documents having more or less bearing on Canadian law, and as awhile, of considerable interest. The other publications of that time, connected with the discussion of the Quebec Act so far as I am aware, were not of a kind to call for mention ; as they hardly, if at all, tended to throw light on any point of present interest. And it was not till 3 years later, in 1775, that Mr. Cugnet's well known (though now rather scarce) treatises — valuable, though much too short and slight cf constri)ction^*were published in thia country. 48 Tlie imperfc'ctii)f» and inaccuracy of slntcmcnt which more or less mark these works, in reference to the present subjocf, I shall have to note presently For the moment, I observe merely, that llioy appeared after a Itipso of from twelve to fil'ioon years afier the cesriion of the country to the IJriliNh Crown j that within three years after tliul event the King's Declaration (of 17()3) had nssiirei! HisMajesiy'a subjects, ol the ititrdfluclion, as nearly as mly,ht be, of the laws of England ; and that a!)out the same time it had been ortlered that the grantin:jof Crown Lruub in Canada waa to be in free and common soccage, that is to say, inidor the En;jlish law. All this time, therefore, people were kept in uncertainty as to the very existence of the old laws of the Jatid ; besides that they had hardly any means of ascertaining (had they wished it ever so much) what those laws wi;re. Of the Seigniors, in particular, few helil even the titles of their SeigMiories ; and many, no doubt, had never seen them, and had no kind of knowledge of their terinn. To those who are not familiar with the law and usages of this part of the Province, it may neem strange that people should not be in the habit of keeping their own deeds. JJut it is well known, to those who are, that sucli is the case. Deeds are pas-^ed, as matter of course, before Notaries, — public functionaries, who preserve the originals, and whose certified copies of Kuch originrls are always authentic, proving themselves in oil Courts of law, whenever produced. In the same way, co[)ies of a Koyal grant or other public document, ctrlified by the proper oflicer, serve every purpose of an original. Thus, nothing is commoner than fur persons not to keep wha* one would call their most valuable j)apers ; and it is not uncommon for them to become stran;:ely ignorant of what they contain. There is even a peculiarity in the position of a Seignior, that makes this habit one into which lie is peculiarly apt to lall ; for in all those classes of action which a Seignior ordinarily haste institute in maintenance of his rights, he is under no necessity of showing his title. It is enough, if he allege and show himself to be the Seignior de facto in possession ol such and such a Seigniory. Under all these circumstances, I repeat, there can be no wonder that the tradition which gained ground in the popular mind, should have been a tradition wideof the truth. It would rather have been strange, if the fact had been the other way; for the mass of the peoplf, threatened with the loss of their laws and language, and apprehensive even for their faith, under the rule of strangers alien to themselves in all these respects, would naturally incline to cherish too favorable notionsof the past ; and the more educated classes would as naturally share, direct, develope and intensify this feeling. The past could not be remem- bered as it was ; was painted of brighter color than the truth jits bad forgotten, — good, that it never had, attribute/! to it. Till the times of the discussion of the Quebee Act, however, we have nothing, to show satisfactorily, how this particular matter was dealt with, or spoken of. Let us see how the writers of that time treated it. Maseres has lieen spoken of, as an authority for the since current impres- sion. The first document in his book (the book I have already mentioned) is a draft of a Report drawn by him, when Attorney General in 1769, and proposed by him for adoj)tion by the Governor and Executive Council, — but which was not by them adopted, — on "the state of the laws and the administration of justice" in this Province. In the main, it is a strongly written expose oi i)\Q evils arising out of the then existing uncertainty as to the state of the law — as between the contllcting Frencii and English systems ; and the writer argues ably and forcibly in favor of an entirely different policy, for their removal, from that adopted by the Quebec Act. All that he says on the point here under discussion, in this document indeed the only passage in his book, that I find, having reference to it, is the following : — "Leases," says he, (on page 21) in the course of his 49 recital of the miscliiefs of the existing state of things, " have likewise been made " of land near Quebec for tweiity»one years by the Society of Jesuiliji in this ♦« Province, thoiigli by the French law they ran o ily be irindo for nine years. " This ha.s been done upon a MU[)[)ositi(in that the restraints upon the power o( " leasing land imposed on the owners of them l)y llio Custom of Paris, of which *' this ia one, have no longer any legal existence. Upon the same principle " many owners of Sj'gtiiories, Cana'iianj as well as Enijlishmen, have made " grants of uncleared lands upon their SeiKiiories for hi<;licr qtilt-rents than they " were allowed to lake in the time of the trench (loveniment, without rogfcrd " to a rule or custom that was in force at the tinjo of the conquest, that restrains " them in this particular. And as the Seigniors transgress the French ws in " this respect, upon a supposition that they are abolished or superseded by the ** lawa of England, so the freeholders or peasants of the Province transgress tiiem ** in other instances upon thu same supposition. For example, there was a law '' made by the King concerning the laiidtj of this Province, ordaining that no '' man should build a new dwelling house in the country (that is, out of towns or " villages) without having sixty French arpents, or about fifty Fnglihh acres, of " land adjoining to it, and that if upon the ileatti of a freeholder and the partition '' of his lands amongst his sons the share of each son came to less than the said " sixty arpents of land, the whole was to be sold and tlie money prodnce I by " the sale divided among the chddren. This was intended to prevent the children " from setting tiiemsolves in a supine and indolent manner upon their little " portions of land, which were not sufficii^nt to maintain them, and to oblige them « to set about clearing new lands (of which they had a right to demand of thts " Seigniors suiricient qu'rntities at very easy quit-rents, by whieh means they « would provide better for their own maintainancc and become more useful to " the public. But now this law is entirely disregarded ; and the children of the « freeholders all over the Province settle upon their little portions of their father'j " land, of thirty, twenty, and sometimes of ten acres, and build little huts upon " them, as if no such law had ever been knovvti here ; and when they are <« reminded of it by their Seignior and exhorted to take and clear new tracts of " land, they reply that ihey understand that by the English law every man may " build a house upon his own land whenever no pleases, let the size be ever so « small. This is an unfortunate practice, and contributes very much to the great " increase of idleness, drunkenness and beggary, which is too visible in this "Province." It is obvious to remark, upon the passing reference, here made to this sup- posed " rule or custom" as to luit-rents, how much more vague and slight it is than the after reference to the Ordonnance of the French Kingofl7J<5, pro- hibitory of building by Habitans on lamls of less size than an arpent and a half by thirty or forty, of which I have already spoken. Yet even this latter law is loosely and inaccurately paraphrased ; and the added sentence, relative to the sale of land whenever division had to be made between the "sons" of a deceased proprietor, forme .. no part of it, — indeed, never was the law, as it is loosely stated to have been. It is manifest that this paragraph was written argu- men'.atively, for an end quite other than that of precisely stating- the tenor of the old French law on any of these points, indeed, with no care for such accuracy, and as an inev. table consequence, not accurately. Even iu\ it stands, it fails to indicate the notion of u 'jniform rate. And, louse as it is, it is not at all borne out by facts ; by the known tenor of those documents of the antecedent period, which embody the laws at which he glances. I pass to the abstract of French Canadian law, of which also I have spoken, sent to England by the Governor, and there printed in 1772. In this work is to be iound the first distinct printed mention that we find, of the Jlrrit* ) 50 of Marly of 171 1. Atnl it occurs (on pngo Gf)) in precisely the connection in vvliich, accoriliiig to tho view I have taken of this whole bu')j '; I bIiouIiI expect to find it ; that is to say, it occiirs at that part of tho work which treats of the limit Bet liy the Custom of Paris to tho rit;ht of the Seignior to alienate in any way portions of JiiHyie/, without tho incurring of mutation fines in favor of his Superior Lord. That limit tho compilers of this work correctly state (as I havo already done) at th») two thirds of tho whole extent of the fiff i adding, Htill correctly, that if that limit ho exceeded, the parly acquiring will at oneo hold of Buch Superior Lord — of courso on payment of the proper fine. This explained, thtiy add : — " It is to he ohserved that this prohihition by tho Custom to alienate more " than the two-thirds, is no obstacle to concessions tending to clearance, because " these are rather an amelioration than an alienation of the part of the /c/. " Accordingly, the Sovereign, by an »/7;rt;7 of tl o Council of State of the tith " July, 17 11, directed the Seigniors of this Province without reserve, (a ordonne •' aux Seigneurs dans cette Province sans nucune reserve) to concede the lands " which should be demanded of them ; in default of which they were to be con- " ceded by tho Governor and Intendant, and reunited to the King's domain." On pige29 of the same work, the compilers speak of the tenure en censive. And here, if indeed they had known of any uniform rate, or even fixed maximum of rale, for grants under that tenure, they were bound to state it. But they do no such thing. All they say is this : — •' ans, censive, or fondde terre is an annual " payment which is made by the possessors of a heritage held under this charge, " to the Seigneur Censier, that is to say to the Seignior of the ^<"/ from which " the heritage is held, in acknowledgement of his direct peigniory (dirette leig- *' neurit.) This due (redevance) consists in money, grain, fowls or other articles in kind (autre espice.)''^ tver. No bint here — none throughout the work — at any limit or restriction what- On page 13, however, of a subsequent part of the same Volume, consisting of 4. recital of important j?rr^/;?, &c., the King's Ordonnance ol 1145, so often mentioned, prohibitory of building-ino lots under a certain size, is of course given, as an important pa: t of the old law. And further on, upon page 2 of the last part of the Volume, and as introductory to a resume of what arc printed as the Police Laws (Loiz de Police) in force before 1760, occur the following remarks, indicative of the importance attached to that Ordonnance as part of the past public law of Canada : — " The laws of which we here give a synopsis were generally followed, "with the exception of some few ariides of little importance, which were " changed by later laws. It were to be wished for the general good of the Fro- " vince, that government would insist on their execution. The non-observance " of some of them for nine or ten years past, has ali'eady caused considerable " harm as to the clearance of lands ; and vvitlu ut desiring to enter into any de- " tail, we can testify that the mere non-enforcement of the ^rril of the Conseil " d^Etat oCihe 28th April, H-lS, is one of the principal causes of the dearth "which we have suffered for some time past. That ^rrSt prohibited Habiinnis " from establishing themselves on less than a arpent and a half in Iront by thirty " or forty in depth. It was enacted because children in dividing the property " of their parents established themselves, each on his portion of the sanie land, " insufficient for subsistence ; a practice hurtful alike as regarded the subsis- " tence of the towns, and the clearance of the country. Tho former govern- 51 " ment conanlercil this rnntter ho important, llint they cn\iseil to he ilcmolished all " houses Imilt in opposition to this ^^rrtlf ; notwiihslriiitlinf; wliich, nothinp; nt " present is ho common as oatahlixhrnents of this sort." FoMowing tliis introchictory noticp, and printed at tho hrnd of these hn'x de Police, are tlm two jjrrt'ls of Marly of 1711, and the .Irrtt of 17H2, pruhihitory of all sale of wild land. Tho compilers h.id no need to s:iy particularly, as to these, that hinco 17()0, they had not Iteen oiif»)rced. Thi-ro li;id hccn no Court or functionary vested with the powers of llu^ Gnvernor and Iniendaiitof ilie old li(ne, toenforce the first ; and no Captains of the 0)/f, to do ilieir part towards carryin>j out the summary procedure enacted hy the second. And as to the third, it would have heon t^tranjje indeed, if undi.-r Kn^lish rule wild land could have been thouglit of hy any Court or Judi^e or functionary, as an unsaleable commodity. Cugnet, then, is the remaining writer of this poriod, of whom I have to speak. And tho passage from his book, in relation to this matter, (pagcn 44 and 45 of the Loix de Jiefs,) reads thus : — " The rules of conceasion (le.s regies de conceder) in this Province are one " sol of cens for each arpeni of frontage, fo'ty sols for each arpent of frontage by " forty of depth in Jlrgcnt Tournois, currency of France, one fat capon for " each arpent of frontage, or twenty sols Toitrnois, at the choice and (iption of " the Seignior, or one half minot of wheat for each arpcnl hy the depth of forty, " 39 seigniorial ground rent, (de rtnfefonn ere it 4e;gnntor was bound to produce " his titles to the Seigneur, and in forty days after exhibiting the same, the Sei- '' gneur, in case of a mutation by sale, and even upon Donations inter vivos, from " a Collaieral Branch or Stranger, was entitled to the Alienation Fine called droits " de /o(/s i.' t'c?jte, (Art. 73,) which is the twelfdi penny or a twelfth part of the " price or value of the Land." A donation inter vivos from a collateral branch or stranger, givin? rise to lods et ventes, to be calculated on the value of the land given ! Authority had need be in demand, when a writer thus rash in his misuse of words, misquoting Arrets, mis-stating usage, mis-reciting the very alphabet of the law, must be pressed into the service. 55 Of Mr. DeLanaudiere'a unewers laid before tlie Couucil, and the resolutions of that body, it is enough here to say that I find in them no statements at all confir- matory of these peculiar views. Mr. Mabane's Reasons of dissent contain a few words, which have been cited ai» evidence. Among other things, he says, — see pages 23 and 24 of the French version of the same Volume, — that the proposed change " would not only be a sacrifice of the •' King's rights, but would defeat the wise intentions and beneficent effects of the " Arrets of 1711 and 1732, and of ihe Declaration ot 1743. by which the Seignior is " obliged to grant to such persona as may apply lor them, for the purpose of improve- " menr, lands in concession, subject only to the rents and dues accustomed and stipu- '* lated (atix rentes ct droits accoutiimes et stipules) and upon his refusal the (jovernor '* is authorized on the part of the Crown and for its benefit, lo the exclusion of the " Seignior for ever, to concede the lands so applied for. By the same laws" he proceeds, '■ the Seigniors ate forbidden, under pain of nullity and a reunion to the '* Crown, of the latul attempted to be sold, to sell any part of their lands uncleared or " en bois debout, dispositions of law highly favorable, to the improvement ol the *• Col'-ov/' &c. It must be admitted that Mr. Mabane was less unguarded in his use of words, than Mr. Williams. His statements are far enough from being correct ; for, (as I have already observed) the Declaration of 1743 contains no reference to this matter of the Censitair^'s^ claim to concessions of wild land; and under the Arr t of 1711, it was not the Governor, but the Governor atid Intendant conjointly, to whom in the case supposed the power to concede was given; and by the Arret of 1732, not the Seignior alone, but everyboi'y, was forbidden to sell wild land. But at all events, he treats us to no parenthetic asseition of the uniform rate theory. On the contrary, from his use of the phrase " accustomed and stipulated," one would rather infer that the notorious fact of the variety of the rates stipulated, was present to his recollection as he wrote. Nearly four years later in date, we come to another document of considerable importance in relation to this matter. A number of Habitans of Longueuil appear to have petitioned the House, complaining of certain conduct on the part ot their Seignior. The petition itself is not printed ; so that I can only state its purport from the abstract given of it in the Attorney General's report upon it — the document I am about to remark upon. It is there said of it : ** The petition brings forward questions for public discussion, upon which " there are various opinions. The second clause states that Mr. Grant, in open " defiance of the ancient ordinances of the Kings of France, has arbitrarily increased " the icnts of three lots ol land which he has conceded to his tenants since he be- " came their Seignior ; and the remaining clauses complain that he has increased *< the reditus paid by the petitioners for lands conceded by his predecessors," This petition was referred by the Governor to the then Attorney General (Mr. Monk) for report ; and his report on it, nnier date of the 27th of February 1794, to be found on page 93 of the English version of the Third of the Volumes laid before this House, is another of the documents which have been cited as confirmatory of the opinion I am combating. Is it really so ? In the first place, it states the tenor of the first .///rcf of Marly, in quite other terms than those of Mr. Williams's report of 1790. « The Royal Edict" says the Attorney General, " of the fith of July 1711 enacted, that every " Seignior should concede, upon application, such quantities of ungranted lands *' as any inhabitant should ask, within the limits of his Seigniory, d iitre dere- ^' devance, et sans exiger d^ux aucune somme d^argent ,• and in case of the *• Seignior's refusal, the same edict authorized the Governor and Intendant to " grant the land required, aux mSmes droits imposes sur Its autres terres conce- ^^dhsdanslesditesSeigneuries." A paraphrase, copying verbatim the e«en- tial words of the jirrSt ; and precisely accordant with the view I have beer» maintaining, in regard to it. i T; 56 The report proceeds : — " There does not however appear among the records of the Provinre, any " Edict of the French King fixing (he exact qvunivm of the rcdiUis or cms et " rentes seigneuriales ; but priir to the conquest, a rule taken from the conccs- •* sions made by the Crown, where the King was the immediate Seignitr, was " much followed. By this rule, to render any one estimate applicable to the " whole province, the cens is fixed at one sol argent tournois, or a half penny, " for every acre in breadth by forty in depth, and one capon or ten pence " sterling at the Seignior's option, or half a bushel of wheat where \hc rediius " '-/as made in grain. ''• There are two Judgments, one of the Intendant Begon of the 18th April, « 1710, and the other of the Intendant H\ quart of the 20th July 1733, in *' some degree confirming this customary le^ulalion but it must however be " remarked, that this rule was not absolutely general, and that the rediius in " the district of Montreal has always been greater than that of the district of " Quebec. It was perhaps impossible, from .diflerence of fcoil, situation and " climate ; and upon the whole, I do not think that any pteneral rent was by " law established, and I conceive the Edict of 6th July 1711 to be the only " guide for determining the question." Still, of course, other than confirmatory of the high authority of Mr. Wil- liams. And evidently, I might add, taken from the statement on the same matter, of Cugnet's book, on which I have already commented. Even to the misprint of the date of the Bogon Judgment of 1713, the two agree. Cugnet's two citations cannot possibly have been verified. Had they been so, they could not have been reproduced. But this matters comparatively little. The important point of the case, is the fact, that Mr. Monk, (as Cugnet had done before him) admits distinctly the non-existence of any authoritatively fixed rate, before 1760. I continue to cite the words of the report : — " This Edict clearly shows an intention, in the Legislature of the day, to " compel the Seigniors to grant tliiir unconceded lands to the inhabitants, and " in my apprehension to grant them at the customary rent in their respective " Seigniories, because that is declared to be the standard by which the Intendant, " who conceded in case of the Seignior's refusal, was direcled to estimate the " legal reditus which he was authorized to establish. " I am therefore of opinion, that the present Seigniors of C " instance a right to exact from their tenants more than ♦< reditus fixed by their predecessors before the conquest ; and " t/i7Ms in each Seigniory is a matter of fact established by " ancient deeds of concession. And if it was then in the " compel liis lord to grant his land to him as he had gran " through the intervention of the Court of the Intendant, ihefe " Btill are his legal right ; the edict of the 6ih July 1711 is still anada have in no the accustomary that the legal re- the evidence of tenant's power to ted it to others, terms were and in force. " As to the clauses of the petition complaining that the Seignior has arbi- " trarily increase:i the rediius paid for lands formerly granted to the petitionerp, " I am clearly of opinion, that in ail cases of leases or concessions already mode " by the Seigniors to their tenants, the reditus fixed by the deeds of concession *< can never be increased under any pretence whatsoever. But it is a question 57 " whether ilie petitioTiera have at present a legal mode of redress against ihe " innovations of which they complain. " As the law stood bed re the conquest, the tenant, in caycs similar lo the " present, would have found an immediate remedy upon application to the Court " of the Intendant ; and I am of o))inion that the present Courts of the Province " are adequate to the purpose of affording them cffiectual relief." Not having the petition lo refer to, one cannot lie suie as to llie precise intent of this opinion, on some points. I'art, at least, of the complaint, seems to have been, that the Seignior was exacting from parties who held under conces- sions made by his predecessors, more than the terms of their grants warranted. As to that charge (the one last reported on in the extract I have read) there can be no question of the correctness of the opinion given, ihit such exaction was illegal, and that the parties had their remedy. As to the other part of the complaint, it is not so dear whai it was, or what redress the peiitionners had asked, or even liow far tiie Attorney General meant to go in the expression of his opinion in the premises. His words may be twisted intomenning — I believe they have been cited as though they did mean — that even from tenants who had agreed to pay a higher rate than was common befi re the conquest, such higher rate could not be recovered. But I cannot pay the writer so poor a compliment, as to believe him to have so meant them. His argument amounts to this. No one rate was ever fixed. The jJrrel of Marly alone, which fixed none, must guide us. I infer from it an intention on the part of the legislator to enable jtarties to compel Seigniors to grant at the rates theretofore usual in their respective Seigniories. And I therefore think that a Seignior has no right lo stand out for a higher rate, when parlies call on him for giants. — But, ?upp»>sc a party not to have stood out upon this supposed right, but to have made his bargain at such higher rate, does it follow that the bargain is to be just so far set aside as to relief him from such rate, and no further, — no one pretending that any law ever said it should be? One has no right to say that any lawyer can have meant to advance so monstrous a doctrine,— unless, indeed, his words were too clear (as here they are not) to make u possible to put any oiher sense upon them. Giving the expressions here used, then, the other meaning ; understanding them logo no further than toadvancethc doctrine, that people could enfoicc concession at some customary rate, to be established according to circumstances for each case; a single remark will suffice. Not to repeat the considerations of fact, which I have already urged, as to the constant recognitions under the French Government, of all sorts < f rates as prevailing everywhere, the commina- tory character of this Jlirel of Marly, the manifest expressions of the King's will, subsequently to its promulgation, that no uniformity of rale or contract was to be enforced under it, and so forth, — considerations of fact, decisive of the whole question, in the sense adverse to the conclusions I combat, — I observe that it proceeds on a further mistaken impression, into which, alter correctly reciting the JlrrSt of Marly, it is most unaccountable that the writer should have fallen, as to the procedure which alone \\\x^\. Arret indicated ;ii;d alUxAid. " Ij it " was in the tenant's power," says the report, '' to compel his lord to grant his "land to him as he had granted il toothers, through the intervention of the " Court of the Intendant, these terms were, and still are, his legal right." It never was. The Arret was express. The sole recourse was to Governor and Intendant together. That recourse, if ever practically enforced or available, had, at all events, ceased to exist, from the day on which there had ceased to be a Governor and Intendant in the land, to give effect to it. i i : ^i 1 I 1 f i i ! 1 1 ; 1 1 ( \ : 1 58 But to return from this digression. I have remarked on every authority I have been able to find, that either has been, or (so far as my researches go) can be cited in support of this tradition, during these first thirty-four years of the history of Canada after its cession to Great Britain. And to what do they amount 1 An absurd, unjust, illegal sentence passed by four military men in 1762; a careless, passing phrase or two of Masercs, in 1769; some loose, inaccurate sentences, and references to Jlrrels, by (-ngnet, in 1775; some extravagant mistakes made in 1790; an Attorney General's opinion, not countenancing them, in 1794. A kw years later, in 1803 and 1806, we reach the time of the printing of the two well-known volumes of our Edits et Ordonnances. And from that time, there have been before the public, in print, in those volumes, most of the successive comminatory Arrets of the French King as to the escheating of Seigniories, on which I have had occasion to remark ; and the Anils oi Marly, with the untrue recital on the face ot one of them, that the taking of money for land by Seigniors, was "entirely contrary to the clauses of the titles of their " concessions, whereby they are permitted only to concede lands subject to dues " (d Hire de redevancey^ ; but there has not been before the public, that context — so to speak — of the ArrSts^ title deeds, and other documents of the period, which I have had the advantage of being here able to bring to bear upon their interpretation. In the absence of the proof these furnish, it could not but be, that such recitals as these two volumes contain, should have tended most power- fully to confirm the impression, that the old state of the law and jurisprudence of the Province, as to all these matters, was anything but what it really was. Still following down the history of the Province ; considering the long feuds of its contending parties; the natural influences on the feelings, views and lan- guage of what was inevitably the popular party in the land, — of ttie passing of the Imperial Trade and Tenures' Acts, in 1822 and 1825 ; the fact, undoubted, that this whole matter had for long years before been, and has ever since been, and is, a leading matter of political faith and profession ; that it could not but be a pleasant style of address to the many debto;3 of the few — to become a popular doctrine with the many — that their indebtedness to the few ought not to be, and of right was not, what the i'ew held it, — that lands held by the few were not pro- perly theirs, but were held under a sort of trust for them, the many; and that, with all these influences at work, the full half of the very facts of ttie case lay buried, so to speak ; I cannot affect to wonder at the fact — which I admit — of the gradual settling down of the minds of most men, into the impression against which I have now to contend ; an impression, however, be it noted well, not at all consofiant with the tenor, during all this period, of the jurisprudence of the Courts of Law, — the course of policy of the Executive and Legislature, — the inferences fairly to be drawn as to the effect, in equity and law, of this period of our history, upon this question. We come, then, to the further proposition I have laid down ; that since the cession of this country to the British Crown, there has nothing occurred to abate my clients rights, or in any wise unfavorably aflect their position, such as I have established it, as proprietors not holding under any kind of trust ; that on the contrary, the jurisprudence of the Courts of Law, the action of the Exe- cutive and Legislative powers, — all that for these ninety-three years past has gine to make up the history of this matter, — has gone to strengthen this their position; would suffice to assure them in it now, were there even a doubt (as there is not) how far it attached to them before. One thing must be tolerably apparent. By the cession, an instant end was put, for the lime at any rate, to that whole system of interference and control whi sure phri con Las^ poin no allov hority I ;hc9 go) yeara of vliat do military ) ; some 1 1775; opinion, rintingof rom that St of the mating of f Marly, loney for I of their !t to dues it context e period, pon their t but be, St power- iprudence was. ong feuds and lan- ng of the led, that een, and but be a popular be, and not pro- land that, case lay Idmit — of against 11, not at e of the re, — the eriod of hat since lurred to such as that on le Exe- ^ast has ^is their IS there ind was 1 control 59 which had previously pressed, oomewhat (it may be) upon the Seignior, but most Burely far more heavily upon the Censitaire. IJoth had become, lo use the brief phrase of the capitulation, "subjects of the King." They could no lonpor be so controlled, either as to person or as to property. The inalienable light at Common Law, the majnr prerogative (goto speak) of the British subject, bad settled that point, beyond question or appeal. The Ha bitnni oi' \hc cOies de Montreal could no longer be told by an Inlendant how many horses, mares, or colts, he might be allowed iukee|); nor the Habitant of Longueuil be condemned unheard, to the rendering of corvees not stipulated by his deed ; nor the Habitant of whatever parish be forbidden to choose a town life, without written leave. Prevented under the Ordonnance of H+n, from building house or stable on land of any less width or depth than suited the pleasure of the French King, he became free to build wha and where he pleased. The ^rref of 1732, making the sale of wild land, whether by him or by the Seignior, illegal, on pain of nullity and escheat, — if indeed it ever was, for any practical purpose, law, — ceased so to be. The. provision of the one Arril of Marly, under which a Governor and Inlendant might grant a Seignior's land, in the King's name, to the complaining applicant whom the Seignior should have refused, — if, again, ever matter of practically enforced law, — also ceased so to be ; for (besides that it was repugnant to prin- ciple,) there was no Court or body through whom it could be put in force. And the corresponding provision of the other »^rr6t of Marly, under which the Habi- innVs land could be — and had been — etchealed on mere certificate, and without his being heard or summoned, also lapsed ; for (besides that it, too, was in dero- gation of common right) there had ceased to exist in the land,<.he machinery to give effect to it And the passing of the Quebec Act in 1774-, made no change in this be- half. These powers of control, exorbitant of the Common Public Law, could not be, were not, in whole or part revived. Indeed, as regards this peculiar procedure for the granting by the Crown, of a Seignior's land, the case is most especially clear. For, though the Courts of Common Pleas, at first, and afterwardd the Courts of King's Bench, were invested with the judicial powers formerly held by the Intendant, they never were in- X'esled, — no Court or body ever was invested, — with any power, judicial or other- wise, that before the cession had been held by ihe Governor and Intendant jointly. I am aware that this; omission has been spoken of, as a sort of oversight. But I apprehend that, duly considered, it will be apparent enough that it was no such thing. This power, on the Crown's behalf to grant whot was not the Crown's to grant, was no judicial power. There was involved in its exercise, the ^uasz'-adjudication (at private suit) of an implied escheat to the Crown, and the executive act beside?, of a grant by the Crown to such party, of the land so impliedly escheated. A King of France might vest such powers in his Governor and Intendant, the two officers who together represented all his ow(i despotism, executive and judicial. But a King of England could not. Under English rule, escheat to the Crown is a matter 60 no means over by any law provided, to give efl'ect to the French King'n will, signified in 1711, that the Seigniors of Canada — proprietors holding their land under no snch condition — should not exact money for it while uncleared, but should ['rant it ^^ diitrc dercdevance,^'* by tenure of rcf/evancc, for the conside- ration of dues infuluro. Nor is this negative evidence, our Courts. all. I turn to the jiositivc jurisprudence of One thing is notorious. The standing complaint of all the complainers against what are called the exactions or usurpations of Seigniors, has ever been of tlic seigniorial character of that jurisprudence. It has passed into a by-word with them, that all our Courts have constantly been seigniorial ; and many, no doubt, have been led into the mistake of fancying that the Judges, as a general rule, must have been Seigniors, or in some way interested on the Seigniors' side. Secure in this notoriety of the general course of the deciaions of our Courts, I shall content myself with a passing remark or two, as to a very few onlj', of the most leading cases. Six are specially referred to, and the proceedings in them given more or less fully, in the Appendix to the Report of the Commissioners of inquiry into the Seigniorial Tenure, printed in 1843. The first in order of time, is that of Johnson vs. Hutchins ; adjudged upon in 1818 by the Court of Queen's Bench for the District of Montreal, and afterwards in 1821 by the Court of Appeals. (See pages 88 and fo'lowing, of the English — 110 and followng, of the French version, of the Third of the Volumch laid before this House.) The Plaintiff in this case was the Seignior of Argenteuil. A previous Seignior had some time before granted a block of some thousands of acres of wild land in that Seigniory, by a deed, on the face of which it was set forth that he received for such grant a large amount of ready money ; and by which he stipulated the extremely small yearly quit-rent of one half penny for every forty acres, adding a release of the grantee from all future claim on his part, to lods et venies, or the enforcement of any other seigniorial burthens. Some years after, the Seigniory was seized and sold under judicial process. And the new Seignior sued the holder of a part of the land thus granted ; seeking to recover from him some years' arrears of cens et rentes, calculated not at the rate of a half penny per forty acres, but at that of three bushels of wheat and five shillings currency per ninety acres — the rale paid for most of the neighbouring lands; together with the fines for not having shown his deeds, and all Zorfs ef vew/es or mutation fines accrued on the several sales of the property which had taken place. The Defendant, of course, set up the title, under which the original grantee from the Plaintiff'^ predecessor, held ; and said, your predecessor agreed, when he so granted to my predecessor, that in consideration of the large sum of money paid, the quit-rent on this grant was to be the small quit-rent siipulated by the deed ; and that lods et vcntes were never to accrue upon it. I therefore, can be made to pay no higher yearly rent, and am liable f >r no lods et ventes. The Seignior in reply pleaded, that the act of the former Seignior vvas illegal ; that he could not soahenate his land as to bar lods et veiitcs upon h, or even prevent its being charged with the usual and proper rate oCcem et rtntes. It was proved in the cause, that (irrespective of the particular grant of this tract) the lands in the seigniory were by no means all granted at one rate ; but that the rate above mentioned was that charged on most of them. The Court condemned the ;vv Seignior 61 Defendant to pay his arrears of cens et rentes at the ruling rate thus establinhed, and the fines for not having exhibited his title-deeds ; implying thereby, of course, that they held him liable to pay lods et vcntes. The Judgment was appealed from, and in 18'2 1 reversed, in so faronly as related to tills rate of ctn* c/ rentes ; the Court of Appeals holding tlir» (juit-rent filipiilated to be, by operation of law, ccns, recognitive of the tenure of the land en censire of the seigniory, and necessarily importing liability \o lods et ventes on all sales of tlu land ; but not admitting of alteration in amount, from that borne on the face of the deed creating it. Tlif) pale of this wild land by the former Seiirnior (for, thus no nullity ; as the Arret ot 17H2, if li a Ptde. and at a cash iw, would have inade price, it Wa^} WaB th^t.^ nu ituimj ^ u» ^nv^ j^iia^l \ji xf^^, ■& ti^w, kvi-'it^v* iictvu jiitiiJ^ it. The quit-renl stipulated was ihe only rate of reus, that could be lecovered ; and could not be altered, to bring it into conlonnily with any riilinir or coniinoii rate. The whole restriction on tiio Seignior's power to alienate, liuld to obtuiii, was tins: thiit, idienatiiiLj tncensive — giving to \n< vendee llie (lualily of Censitain\ he could not (by private contract witli such Ceimitairc) prevent the ordinary IcL^al mcidtnis ol the lemire en censive iVoni attaching to the p;rant, — could not tree ihe land Jroni liability towards the domain of bis seigniory, for loiis et veitlts. — Had tlie aiiL-natioii, indeed, been held not to be a grant en censive, — it must in law have been taken ior a sale of a pan of the J/*-/ or seigniory; liie acquirer, a co-va!j^al with the vendor; the sale, and all alter sales, ol" the land, chargeable with the heavier mutaiioii fine of the (I'lint, or fifth part of the price, to the Crown as the Seignior Dominant, or Superior Lord. The second of the cases in question, isthatof Duchesnay 7'.?. Hamilton, decided by tho Court of Queen's Bench hir the District of Quebec, in 1826, and to be found on pages S4 and following, of the French — 106 and following, ol'the English version,, of the same Volume. it was an action instituted by an Advocate not very likely to be absurdly wrong in his view of the law that governed it — a gentleman more, perhaps, than almo.^t any other of his day, the admitted ornament and honor of the proleesion in Lower Canada — the late Mr. Chief Justice Vallieres. Tho action was against certain parties holding land in the Seigniory of Fossambault ; to require them to pass a deed acknowledging such lands to be charged with eenset rcntis at the rate oi' four pence currency per arpcnt, as well as with other seigniorial burdens, as the neigh- bouring lands were; and to pay threee years' arrears ot such ccns el iciiteif. The Defetulant pleaded, that when he acquired the land, no such rent was stipulated or mentioned as charged on it, by the I'laintitf, or by the party of whom the land was bought ; that he had ever been and was willing to take a deed of the land at the rate of one soi per arpent, being that at which a great par' of the lands in the Seigniory had been granted ; and that the rate demanded, of lour pence currency, was a higher rate than by law could be demanded : a Seignioi having by law no right to grant at a rate higher than that of the old rates in his Seigniory. Eiit he was expressly condemned to take title as demanded; and to pay the lluee years' arrears in question, at the rate demanded ; being double the rate lixed by the Kill now before this Honoiable House, as the maximum rate legally chargeatile by a Seigrdor — the rate to vvhich all higher rates ever stipulated are to be cut down, 'i'he Court of Queen's Bench so lixed this very rate, by a Judgment nevtir appealed from. Can it be, that it is proposed, by Act of Parliament, to cut il down, for all time to come, by one half? The thir.l case I have to notice, is that of McCallum vs. Grey, adjudicated upon by the Court of Queen's Bench for the District of Montreal, in 1828. This action was bro'jght by the owner of one of the Seigniories within the township of Sher- rington, held by a peculiar tenure to be ]irer-ently adverted to ; and was a Petitory Action, to turn out the Defendant from tho occupation of a lot of land in the Seig- niory. It was a hard action — not to say a very hard one. The fact was pleaded and clearly shown in evidence, that the Plaintiff, having reason to apprehend that his lands might be taken possession of by parties claimant under adverse title, had ^n effect induced the DefcDdaat to go upon the lot in question upon a clear under- ff I 62 Matuliiig, that he slioulil iiavc the Inml on easy terms. This, of itself, was adccisivo con.sidcnitiuii iti tliu vni^e ; for if niio man ;;til niiothor to go and .settle on his land with 11 pr()Inl^^() lo let him liavo tint land on favomble terms, he cannot afferwiiriN, hy acionnnmi Petitory Action, turn liini out cf it. Tho Jud;,'ment, accordinijly, was for iln' Dflendant ; hut in iiivinjj .i; : ii.-t lor llit'ir Jiidirn'ent,the Court, aiU'rr«!citiriy this HUllicient reason, went on with -(11 may bo called an obiter dictum — n I'nrtlier reason, nut neeeswary to tlieir concit mi, lo tlie ellect lliat moreover, "every »nb- "ject of Hid l\liije.-.ty \h enlilled to demand, ami ohtain, from every or any Seiynior "lioldintj wa.sle and nii^ranled /aiidH in Ins Seifrniory ,a lot or concession ofa portion "of said wa^tc am! ini^ranlcd lands, to he by every such Bubject, his iieirs and " a8gifj;ns, held and poKHenyed as his and their own proper cBtate, for ever, upon tho *' condition of cnilivatini,' and improvinjr tlie same, and of paying and allowing to " every such Seignior the rcabonable, visual and ordiimry lonte, dnew, profitd and "acknowledgments, which, hy tho feudal teimre in force in this Province, are paid, ''made and allowtid to snch Seigniors by their tenants or Ccnsitairts, for all such " and similar lots ol laml ;" by reason ol all which, they disraissed the Plaintiff's Action. Now, it is to be observed, that even admitting this comidcrant ever so unrc- serveiily, it is far Irom alirrmiiig (on ihe contrary, it does not ho much as counten- ance) iho notion ofu lived or maximum rate I'oi the whole country,— much less, the notion that contiacis entered into for higher rates, are not therealier to be enforced, as made. But it was, besitles, a I'oniidcrant, not necessary as a reason for the Judgment given ; and it is an obvious anti universally admitted rule, that reasoning not iiecessaij to a Jiid;^rnent, is not to be held part of such Judgment. Indeed, as regards tliif; particular ease, whatever may or may ni t he the law -as to any other Seigniory, it is at least certain ihat the Seigniory in this Judgmeni referred to, was iield by such a tcnuie as to be out ol the puiview of this supposed rule ol law. This caise is referred to, in the report of the Seigniorial Tenure Commif<8ioner3, as the "single instance," so liir as they were aware, in which a Seigtnor had been mi&uccessful in contest againi-t a Ceiisitaiie, upon any point connected with this matter of the rights of Seignior and CtnsjVaj're under the ^/TeSucoiid Volume ol Lower Canada Reports. The concexsiou (in the Seigniory of Bonr? Louis) had hero been made at tho rate jjcr arpontof one sul or hall-penny of Seigniorial rois et rcnlc properly socallod, and of ooni>t> irredeetnuble, and of Heven suls or three pence half-[)enny more of " " ur by rhe Do- renlt coitdtiluec, oi rcdeeinahle rent nit)//t' (•o//,v/i/i(('f, made the casts one rather more advanlajreous for the defence than that of liamilton r.s". l.amoureux, wliere the whole rent wad Siiijni rial, — ihe Court ,i-k wliat is the law 1 'I'lial in In nay, what in it practically? Mow do the Coiirlw hold il ? What willtln'y tMiibrie? What will they set asidi;? If I'or ninety ycart and rnoi-e. Courts h ivn ;.'iino on eiiforcint! all contracts of n particular kind, — il in ii nninl'cr of iniixirtant rnscM. ably ar;,Micd and solemnly iiJjiid;L;ed, they have iidlii'ied to one .-ui'l ih'" wanu.' t.lyle of dcci.sion, — by wl at riLilil dare I'onnsid ti-ll his (-.licnl that such .Iccisioii is not law? It amucs a rr.oal daii'.fcrous Htate of the public mind, wlicn men liub'ly run down what the Courtri of L.iw have (or agi'« lu'M as law, 'I'lu! land wliose Judires are dislrusted. where men fear or liono Itial any day may witness a reversal of the .lud<;mfnt» of a century, is a land whcro all properly and all contracts must be unsale; where man cannot tru.st man. But, besides all that the chansc of public law conpeqnont on the cession of this county to the Cuiwn ol (Jroat llritain, has done, and all that this jurisprudence since has done, to confirm and etrerigthen my clients' position, there is yet more. Grants of Seiirniories have been made since the cession, by the Britiph Crown ; v affected, equally with those of earlier date, by this HiM. Two of these prants areof IVlnrrny Ray and Mount Murtny : of the same date (176^^ and on the same terms. The toriner isto be found on pa^ze 94 ol'the Kiigiish version of the 'i'liird ile|)ort of the Special Committee named by the then House of Assembly, on ihe Seigniorial Tenure, in 1851. Il is by (Jovemor Murray ; and after ncknowledjiing the " faithful services" of the granteCj an officer of His Ma- jesiy'u Army, luns thus: — '' I do hereby give, grant and concede unto the paid Captain John Nairne, his heirs, executors and adminisMalors for ever, all that extent of land lying on the north side of the Hiver St. Lawrence from ihe Cap tivr Oyea, limit of the Parish of Eboulemens, to the South side of the river ot Mulhaif and for three leagues back, to he known hereafter, at the special request of said Captain John Nairne, by Mie name of Murray's Bay; firmly to hoKI the tame to himself, his heirs, executors and administrators for ever, or until His Majesty's pleasure is further known, for and in consideration of the possessor's paying liege homage to His Majesty, his heirs and successors, at His Castle of St. I.cwis in Quebec, on each mutation of properly, and by way of acknowledgment a piece of giild of the value often shillings, with one year's rent ol'the ilomain reserved, as customary in this country, together with the Woods and Rivers, or other appurtenances " within the said extent ; right of fishing and fowling on the ^amc therein " included, without hindrance or molestation ; all kinds of traffic with the Indians " of the back country, hereby specially excepted." Do or do not these terms convey the idea of an ubriolutc property, to bo vested in the grantee ? — Was it, or was it not, present to the mind of ihe grantor, (writing and thinking- the King'>^ English,) that the ]-aily to whom this grant was thus made, with no reservation except that of trade with the Indians, was thereby I'onstituted a propriet(.r in feii simple, holding for himself and no other ? vV'as it understood by grantor or grantee, or any one, i hat nothing was conveyed, hut some sort of trust to sub-grant on soma terras or other — neither trust norteiius of any sort being hinted at? The Mount Mnrrny grant, I have said, was of the same date and tenor, though not printed. I have, however, an authentic copy of the Letters Patent of 1815, under the Great Sjal of the ProviTico, by which it was confirmo,! — still in the name terms. And I understand, though I havu not seen the Letters Patent, that the grant oflVIurray Bay also was confirmed at the same time and by an Instrument of the like tenor. 5 66 The right of the Crown to granttlins absohitelyin nO'Z, and to ratify Rurh grants in 1815, I pieMiinio will bo aiiniiltcd to bn flear ; fqiiiiily with this lanfjiiairo of the grants lliemoeives ; unless, indeed, law and lanjiuaire be lield alike in.-crulable. Tliese two grantf were made in vivliie of the undoubted Prerogative of llie BrilififiUrown. 1 come now to some others of latei d;ite, made in most pecnliav teims, under peculiar cirf-umstarices, and in literal eM-niiion of a I'rovincial Statute. The iSeiirniory of l.aSalle. in what is now the County of Hnntinn;don, was many years aero held by a j^entlenian who seemn to have ci:;ier not known or not cared wlit're llie rear line of his Seigniory ran ; as he ;;rantei to number of lluhitmis a 1 arize extent of the wild lands of the f'iown lyinij beyond it. iSome timeafler, in 1809, these Crown lands wen- creeled ink) the Township of Sherrini;- I'-n, and yranted to certain applicanls, by Letters Patent, in Free and Common Soccar tiie loss to result to themselves from this obligation ; and, with regard to all that part of their lands not occupied by tenants of La Salle, they were to hold the san;c witji the iullest right to do anything and everything they pleased with it. ''lie words of the 3rd Section of the Act are : — of time, as was to be expected, a frightful luimber oi u instituted by these "ranteee of the Crown, to ej(!ct from liicir " And be it further enacted by the autliorily aforesaid, that when the said *' Letters Patent" (meaning the Letteis i'litent orignrally granting in Free and <'onrmon Socciige) '' shall have been in , ;rl revoked in mam)er afoiesaid, it shall " and may be lawful ibr the (jovernor, Lieutenant Covernor or Persoir adminis- tering the Goverumeni, by other Letters Patent under the (!rcat Seal of this Province, to regraiit to the said giantees or their legal representatives, in Fuf and Seignioiy, vn franc dUv, wrili all Seigniorial rights, privileges arrd preroaa- lives, as well the said lands lU'cupied as aforesaid bv the said persons claimiiifj as tenants of La Salle, or of the said adjoining Seigniories, save and except t'e Clergy Reserves comprised therein, as any other lands withiir the said Towrr- ship, in respect of which the said Letters Patent shall have been revoked and " annulled in the manner hereinbefore mentioned ; with power to the said grantees " or to their legal representatives respectively, without limitation or restriction to alienate or dispose of such lands or any part thereof, either freely or absolutely, or for such rents, reservatio•^s and acknowledgements, and on such terms .incl conditions, or in such other iii;:nner as they shall think proper; together Avith the right of exacting, recovering, and receiving nW such cms et rentes, lods ct rentes, redcvances and other seigniorial dues and riirhts whatever, which shall or may have accrued or become payable since the said '2'2nd day ofFebruary, 1809, by the said persons claiming as Tenants of La Salle under and by viilue of the deeds of ginnts, titrcs dc concession, or by virtue of any other right or title, by or irnder which they have held or now hold such lands." Under this Act, and by Letters Patent reciting its very words, which explicitly set forth the grantee's right to do Aviiat he will with so much of tlie laud granted ; to part with it ev Jranr. alcii, or en Jiff, or en rnliire, at any price, an(i on any terms, ■ — the whole grant to be free o{' Quint or Seiizniorial burilien towards the Cinwn, — four Seigtrioties were granted, those of Thwaite, St. Jiimes, St. (ieorge, and St. Normand. Even since the Union, an Augmentation has been granted on the same terms, to one of these Seigniories, (if not, as I believe, to all,) consisting of the Clergy Reserve Lots in and near it ; (ioverumeiit llieieby agaitt iiranling land peigniorally. with this power expressly recogni/ed on the grantee's part, not merely to hold the land absolutely as his own property, but even to determine without reserve or limitation, the tenure under wliieh it should be held, if he should eeefit to alienate it. The Bill before this Honorable House treats even the lioldera 67 snrli grants aiit;iiairo of n.?criitiible. vtivc of I lie st jxHMiliai' cial8taliite. , w!\s many )i' not caruil number of I if. Nome )f Slierriiii;- 1(1 ConiiiHiii number of t from tlicir liiy, rcPuH- ise, the Art ntecs ol llie II franc iiliU' live j)os!ri',s- illc, on the es, accrued MiiTiiont, for rdtoiilllbiif. Id the tsiinic III it. TUr. icii the said in l<"ice and lid, it isliall )!! ad mill is- •>cal of iIhk .'cs, ill Firf [id prcidua- s chiiining except t'« ;aid Town- vokcd and id fxiantoi's restriction jabsolutely, terms .iiicl etlier Avith ftcs, Unis tt h shall or ary, 1809, rtne of the Itle, by or explicitly trnuited ; kny terms, |Cin\vn, — and St. Itlie same W of the Itinir land jt merely Hetermitie lie ehimld holdtMB of these Sci^nioricf!, as something eliort of proprietors, perhaps, as others. Wiih as good reason. And it has not been with reference to these Shcrrinijtnn pcijfnioiiea only, that |i"rislation htis recoiiiiized Seiijfiiiors in Canaila as proprietors holding I'oi" them- selves, and under no trust limilation. The Trade and Tenures' Acts, the work of Imperial leirislation, not popular (I adniil) in Lower Canada, but yet law and law, which Provincial legislation can- not coiistitutioiially louidi, — have declared every Sei;jnior to be entitleil, upon mere payment to the Crown, of the value of ifs pecuniary ri^^hls over his Seiirniory, fo obtain cominufafion, as between the Crown and liiinseli, of the tenure of his Sei- •rniory. This done, he becomes at oiict;, under those Acts, owner of his iniu;raiiteil lands, I'lee from the biiithons of their lormer tenure. Jhit this legislation ot neces- sity implies that those burthens were to the Crown alone — the burthens from which ftie !Seii,Miior so buys relief; that they did not comprehend any burthen ,in the nature oi an unex])re,-.-, purposes and intents whatever." The next section oi the Ordinance, in the tame spirit, ifocs on to provide, <' that all and fiinn;ular the said fwfs and Seigniories * ♦ • and ail and every " the said domains, lands, buildings, messuages, tenements and hereditaments, " 6ei2;niorial dues and dnties, monies, debts, hypotlicqius, ve ■! securities, arrears of *' locls et rentes, cens et rmtis, and other neignioiial dues, goons, chattels and move- '* able property whatsoever, shall be, and the same are hereby vested in the said '< Corporation * * * as the true and lawful owners and proprietors of the pame, " and of every pari and pavepj thereof, to the only iise, benefit and bohouf of the " said Seminary or Corporation and their successors lor ever, for the purposes " aforesaid," &c. There is here — there is in this Ordinance — no trace of the notion, tliat these Seigniories were held under trust for foitlement, or subject to limitation aa to the terms on which land within them could legally be sub-granted, — or as to the re- serves, of land or otherwise, that could le.,sed these Acts, |hey please : ne of these |as they saw They are cc them. — their rights intracts of a |t2fro\vn the may part the law, lents of its hen and on [arliaments lent of, tho tin in their of all the Ithroiiphout lientf, for hit trustee le defence In one word, from the cession in 1760 to this day, by the Common Public Law of the British Empire, the jurisprudence of the Courts, the acts of the Crown, and the legislation of Parliament, Imperial and Provincial, the whole system of inter- ference and control, of the French regime, alike as to Seignior and Ceiuitaire, has been set aside and reversed. The antagonist principle has been unreservedly adopted and curried out. Men have been free to make ami modify their contracts as they chose ; to mA\, buy, grant, take — deal in all things with their own — as they might see lit. Such is the spirit of all Englisli law aud legitijation, whether as to lands held in free and common soccage, or en franc aleu, or under the obligations of the fief or censive tenures. There can be no exception to the rules, that make property and contract sacred, and men free to hold the one, ♦ j frarne and give effect to the other. Novp, under all these circumstances of this present case ; doing one's best to put out of view that state of the oid law ot France on which I have insisted as the true view to be taken of it, — the tenor and character of the old grants under which my clients (those of them who hold under French grants) own their property, — the true intent and meaning of all that the King of France ever did, legislatively or other- wise, in respect of those grants and of their rights under them, — and the jurispru- dence of his Courts, as fixing all that down to the cession of the counliy was on these matters law ; I say, putting all these things, to the utmost of one's power, out of sight ; doing our utmost to believe that there once was a time, when — the country being governed by the French King — Seigniors were not proprietors iu their own riglit, but trustees, bound to grant their lands on some terms or other, as to rate, reserves, or what not ; need I ask, whether the state of things so supposed to have then prevailed, is the state of things that prevails now, or towards which in this latter half ot the nineteenth century we here are to go back? Is it that, in which this Legislature can declare this country to be, or towards which it can try to carry it back a single step? Have these ninety-three years' prescription done r "thing? Ninety-three years, during which all kinds of property have passed from hand to hand, under all kinds of contracts, and been affected in all kinds of ways known to the law, under security of the great under-lying maxim ot all English law, written or unwritten, that none shall be disseized of his freehold, or abated of any his claims of property or right, otherwise than iu due course of law. Under the English Crown, and by English law, it was never possible to pretend to put into force either the Arret of 1711, or that of 1732, of both of which it has lately been the fashion to talk so much and so inaccurately. Attempted in the case of Guichaud rs. Jones, the attempt failed; and at ail events no one, I feel well assured, will venture to contend that a sale of wild land is null, or that wild land sold is escheated de plein droit lo Her Majesty. Yet, if it is not, — if the Arret of 1732 is effete, how has that of 1711 escaped the like fate '? For ninety-three years, there has been no machinery to effect either of the two escheats which it threate- ned ; the absolute escheat of the unsettled Seigniory ; or the ^wasi-escheat and aftergrant of the land, part of a Seigniory, which a Seignior might have refused to grant. During all this period, the jurisprudeii'je of all our Courts has maintained all contracts, whether of sale or grant, aud at whatever rates. During all this period, the actiou of the Crovvn and Legislature has harmonized with that of the Courts; has in nowise contravened their decisions; on the contrary, has lent all countenance to them; has constantly affirmed their principle, the principle of all British law and rule, — that in a British country men are men, not children, — their property their own, not their rulers', — their contracts, what they choose lo make them, not what their rulers may choose to wish to have them made. Can it be, that now, — with all men's position, properties and rights, determined by these ninety-three years' uniformity of precedent and rule, — it is seriously proposed to go back towards a fancied former state of things; to take up, not the system which prevailed in 1711, iu its entirety, but merely a small liraction of it, or rather what is wrongly said to have been such fraction of it, — for (as I have shown) this control- ling of the Seignior was in those days more of a pretence than of a reality ; to take up just so much of it as shall press hardly, unjustly, on a small class of the community, whose misfortune it is that they have fev/ votes and little influence ; and in so doing, to ignore all that far larger and more real remainder of the system, which in its day pressed on the larger class, and the revival of wliich against that larger class, insanity itself would hardly dream of ? 70 It were lo destroy the whole fiibric of tlie relation." between man and man. AH the relations in life of the proprietor, Seignior or Ccvsitaire, are predicated (.n the value of his rights of property, as the jurisprudence of the Courts, authoritative- ly establishing the law of the land, has determined and guaranteed ihein. I gave so much for my Seigniory, borrowed so much on the security of it, bound myself in all manner of ways to ail manner of obligations by reason of hs being mine ; be- cause I knew that the revenue arising from the ccns et /enfcs and dues stipulated to accrue on the granted part of it, amounted to so much ; because I knew that the average of its lods ct vcntes came to so much more ; because I knew that it con- tained such and such an extent of ungranted land, of certain value, and from which I could derive so much by lumbering on it, cultivating it, or otherwise ; because I knew that hs mills yielded so much revenue, and had (attached to them) such and such rights; because 1 knew that this and that water power within it, which otherwise might have competed with those I myself should use, were not the property of the Censitaire holder of the land adjacent, and could not be used in competition with mine. Another bought land in my seigniory, precisely so much below what otherwise would have been its worth ; because it was burthened with a certain known rate of cejis et rentes; because, whenever sold, lods ct vrntes were to be paid upon the sale ; because such and such reserves in favor of the Seignior were charged upon it; because the valuable water power in iVoiit of it formed no part of h. Is all this state of things to be reversed ? Are our respective rights and obligations to be legislatively annulled ? Is the property that I bought because it was valuable, to have its value taken from it ? Are rights that another did not buy, — rights doublnig, trebling the value of the property, lor which he paid a low price just because he did not buy them, — to be given to him, at my expense ? And is tlii- to be done, nioieuver, notwithstanding that on the faith of the declared law of the land the Crown in due course took its lifih part of the high price that I so paid, as being its legal right upon that my honest purchase, — or perhaps even sold to me my Seigniory, at such high price, as being the honest value of the rights legally attaching io it ? I refer to no imaginary cases. The Crown does take its Quint on the sale of every Seigniory ; it has — and lately — sold Seigniorial property at the value predi- cated on this received state of the law, which is now threatened with legislati 'e reversal. One of the clients for whom I here speak, came to this country but a few years sfnce, to settle and invest his means here. Before buying the Seigniory which at this moment (unfortunately perhaps for him) is his property, he took advice — the best professional advice to be obtained — as to the nature of Seigniorial pniporty. The Seigniory he thought of buying, was in part grunted at rates ranging hfyoiid the maximum now talked ol, and in great part was wild, uni^anled land, lie was advised, of course, of the tenor of the jurisprudenco of our C !)mts ; bought at ilie price '.hereon predicated ; paid the Crown the fifth part of iliiit price ; iho Crown took such payment; and this Bill now threatens — I dare not .say wiiat reduction of the value of his property, thus bought in reliance on the law, thu.s in part paid for to the (Jrown. Anoilicr of my clients owns a Seigniory on which there was not (I believe) a .settler at the time of the session of this country to the Crown ; a Seigniory, every Censi/a/re of which holds urrder grants of later date than the days of the French government, atrd, (as nratter of course, I might say) at rates exceeding — most of them lar exceeding — this two pence currency per arpeni, which by some woirdeiful arithenietic has been cvphereil out to repre.seiit that unknown quantity, the undis- coverable tixed rate of the olden time. He was the purchaser of his Seigniory at Sheriff's sale ; and the Plaintifi procecuting the sale was no other tharr the Ciown. He paid the Cr.)wn, not the nrere Quint, but the entire purclia.se money; and that purchase money was the price — the market price — of these high rents, which this Jiill would make illegal. The Crown took that price, for tho.'^e rents ; which, as vendor, it most surely then held out as legal rents. This Bill threatens that buyer, with something little short ol the destruction of the value of tire properly which the Crown so sold him, for which he so paid the Crown. and man. sdicateil c.n Ihoritaiive- in. I giive d myself in mine ; be- tipulated to 3\v tliat tlie that it con- , and from otherwise ; ed to tht'm) r within it, e, wert! not t be used in ?ly so much iiened with 7s ct VPiites favor of the er in front I ? Arc our ;he property Are rights roperty, for iven to him, tliat on the lifih part of st purchase, ' the honest llie sale of mine predi- legisiati 'e a few years ■y which at idvice — the properly. iil; l)cyoiid . lie was trill at the the ('rown eduction of art paid for believe) a nry, every f\e French I — most of wonderlhl I the undis- h'gniory at lie Clown, and tliat .'liich this I which, as lliat buyer, }ny which 71 What each of these i>enilemen bought and paid for, they arc not to be allowed to have. No Court of Law, by possibility, couKI be brougiit to abridge either of them, of one iota of the ri;,dita sought to be taken fiom them. Hut it is proposetl n cut down those rights by Act of Parliament; leaving thein — wronged, impoverished losers by such abridgment of their legal rights — to jiray thereafter, at their proper cost, risk, and peril, fur an uncertain, insutKcient, illusory shadow of a so-called indemnity. Is this justice ? Is this law ? The measure of right to be meted forth by the British Crown, to British subjects ? Can such a measure be laid before the Crown lor sanction? Can the Ciowa jjive it the name and force of law? The down cannot — will not. I have characterized tliis measure, as one that cannot possibly be defended for an instant, unless upon the ground — which I have proved to be untenable — that my clients are not in very truth proprietors, but public trustees — so in default that no mercy should be shown them ; as a measure that unsettles their contracts, abates their legal rights, despoils them in great part of their property, inflicts upon them loss of every kind, and offers them no indemnity, but such as is a very mockery of the term. And to prove this, I proceed now to take up — and, as rapidly as I can, to comment upon — the leading clauses of this Bill. It is intituled " An Act to define Seigniorial Rights in Lcwer CanaJ*, and to facilitate the Redeinptioi. ihereof"; anil it begins by declaring that it is tlesirable, to facilitate the commutation of lands held en rolure iu the several Seigniories of Lower Canada, by more ample and etiectual legislative provisions than are now in force," and further, " to define the Seigniorial rights to which such lands will in future be subject, and to restore, in so far as circumstances will allow, all such legal remedies as the Ccnsilaire 'ormeily possessed against all encroachment or exaction on the part of the Seignior, as well as those ot which the Seignior could avail himself for the maintenance of his rights." Now as to any facilitating of the redemption of Seignioiial rights, I have not a word to say against it. I repeat, emphatically and sincerely, that I am here to say no word against any redemption of therigb's of Seigniors. IVIy clients are anxious to have their property relieved from the ouium of an unpopular tenure ; anil would rejoice, as citizens and as pro- prietors, to see it change its form. At the same lime, it is not their business, — and speaking as I here do for them, it is not mine, — to suggest the mode in which this is to be done. The proprietor has no liiiht to urge any particular mode of proce- dure as tiuit by which (for great ends of public policy) the form and character of his property is to be changed. His right is merely, to insist that the change be not made to his loss; that for what the public take from him, the public see that lie bo indemnified. Others here propose a change of llie tenure, as a cliange which the public i iterest demands. My clients, provided only that they be indemnified, — that their rights, before being abrogated, are redeemed, — have no objection to olfer. Against any change of the tenure, on this principle to be effected, (no matter what tiie machinery,) tlieydo not desire me to say — and if they did, I would not say — a single word. But when it is proposed, as here it is, to define Seigniorial rights, and wlier.,, besides deliniug. it is further proposed to alter, by restoring — with modi- fication always — one knows not how much of certain alleged jiiovisions of old laws admitted not now to be law, I have iny objections. Define my clients' rights? They are not doubtful. The tenor of their titles is not doubtful ; the tenor of their contracts with their Ceii^ilaires is not doubtful; the law, as applicable to the inter- pretation and enforcement of their contract.^, is not doubtful. There is nothing doubtful about file matter. The very mistaken impression that has assumed the form of a popular doubt as to the matter, is not doubtful; but is plainly, clearly, an impression having no ba.si>' of fact or law to rest upon. And, restore in part the past? The past never is r;;;-;ored. Everything changes, onward. The further changes we have to make, must be — not backward, towards the past, but — onward to the future. If every document which has been laid before this House and the country do not utterly deceive, if every historical authority be not at fault, no part ot that state of tilings which prevailed before the cession of this country to the Hiilish Crown, and which that cession abrogated, was of such a character as to make U possible one should be willing (weie it possible) to go back to it. What we have to do, is to go honestly forward; fiuther amending, in the spirit of the age, the ?talo of thinu"^ we have. i! 7« But this First Section of this Bill, aa it proceeds to its enacting poriion, sayors only of retrogression, not at all of progress. It proposes lo repeal ihe two Provin- cial Acts of 1315 and 1849, of which I spoke a lew moments since, for the facili- tating ol the optional commutation of the tenure. And the Bill contains no provi- sion in any of hrs after clauses, lor the fiicilitatinjii: or even allowing hereafter of such optional commutation, by mutual consent of tlie parlies, as these Acts provided tor. My clients regret that this eliould be pro,)osed. These Acis provide for voluntary commutation, by mutual agreement, between themselves and their Censilaives. Why should this be made impossihle ? Why should the machinery for commutation, which Ilie existing law allows, be taken away ? Is this, part of a Bill to facilitate the redemption of Seigniorial rights? To that end, there is needed no defmiton of rights that by law are clear,— no restoration of forms and moiles of legal process that are obsolete and forgotten, — no repealing of Btatmes that already put it into men's power, by mutual agreement, tc effect such redemp- tion. Rights must be taken as they are ; their redemption on terms fair to both parties, whether ascertained so to be by their mutual consent or otherwise, must bo made easy ; those legal processes and those only, that are best calculated to effect this end, and are suited to the spirit and principles of the age, must be provided, as the means by which it is to take elfect. iSo much for the First Section of this Bill. 111. I tlKl Avii jurl thij de| mci "hi From the Second to the Fifteenth Sections, it is taken up with provisions by •which it is proposed to regulate the matter of the sub-granting or conceasion of the lands not at present sub-granted, in the Seigniorios. The Second Section provides;—* " II. That from and after the passing of this Act, all and every the judicial " powers and authority vested in and granted to the Governor and the Intendant of " New France or Canada, by XheAriH of His mont Christian Majesty, the King of " France, dated at Marly, the 6th of July, 1711, in relation to lands in New Fiance *' or Canada aforesaid, conceded in Seigniories, and by any laws in force in Ca- ** nada at the time of the cession of the country to Great Britain, shall and may be " exeici.-ed by the Superior Court of Lower Canada, and by the Judges ol the " said Couit, or by the Circuit Courts, due regard being had to the extensions, ** restrictions and modifications of the said judicial powers and authority made by " this Act." « , That is to say, all these powers, be they what they may, are vested not merely in the Superior Court, but in each individual Judge thereof and also in every single Juilge of the Circuit Court. The phrases used are " the Judges" of the Superior Court, and '* the Circuit Courts ;" but it will be seen presently, that the summary procedure contemplated may be taken before any one Judge of the Superior Court, and therefore never would be taken before the two or three Judge8 who alone can form a quorum of that Court itself; and the Circuit Court existing for Lower Canada, (as I need not .say, except for the information of gentlemen from Upper Canada not conversant with our system,) though nominally a Court consist- ing of several Judges, never sits as such, — but must always sit and art as a Court of one Judge only. The proposal is, to vePt all the powers as to all land conceded en fief, th;it were ever vested in the Governor and Intendant together, that is to say, in the two officers of the French Crown who together embodied all its despotic authoriiy, the one the head of it:^ military and state executive, the otlier its hiuhest civil, financial, police and judicial functionary, — to ve.'^t all these powers, 1 say, in any and eveiy single Judge in Lower Canada, whether of the Superior or Circuit Court. I venture to express the opinion, that this is not to restore the past. The il/ re/s, one after aiiothtr, show that the Intendants jefilou^ly guarded from all encroachment by inferior Judges, the high powers vested in themselves, — much move those yet higher powers entrusted only to the Governors and them.se Ives acting conjointly. These were powers )ar transcending any mere judicial autho- rity. The Intendant — absolute Chancellor, Chief Justice, and what not, as he was — could not himself exercise them alone; anymore than the Governor. No- thing short of the direct interference of the whole embodied absolutism of the French King, could put them into operation. And yet it is proposed— calling them w to that end, "judicial powers" ns in truth tliey were not — to plane them in the hands of every single Jiulf^e ol" the Circuit Couit : o( every incumbent of a judicial office, the qnalification for which in five years' staruliriir at the Bar. luid ii willing- ness to accept a judicial position of inadequate eniolunicnt and not of the higher grrade; for without ineaiiinjz the siiiihlest disrespect to tlie uentUnien who tiold that position, — and 1 have the highest respect lor everyone of them, and only regret that the, einolurnent and rank of their jiosition are not more in accordance with what I believe to be their personal deserts, — it yet is an indispntiihle fact, that the jurisdiction entrusted to them is the interior jurisdiction only, of iheeoimtry. Under this clause, as worded, I do not see hut tliat any one of these gentlemen might decree the escheat to the Ciown, of an entire .Seigiuory ; and ceitaiiily the high power — half state, half judicial — to escheat and grant away Seigniories piecemeal, IS meant to be conferred on each of them. A gam I say, theie is not here any restoring of any feature of the past. Indeed, the concluding words of the Section make it clear that no restoration ia meant ; for it is there said that this power is only to hu exercised, " regard being " had to the extensions, restrictions, and modifications of the said judicial poweis " and authority made by this Act." Not merely are they to be exercised by any one of a score or more ol lunctionarics, in place of being e:.elusively the function of two acting together; not only are they to devolve on functionaries of a rank less elevated; but they are not to be exercised as of old, at all. They are to be extended, restricted and modified, — to he converted into other powers; and then, and then only, put into force, — new powers, by new machinery, to new ends. I read the next Section, as the first of 4hose clauses that together set forth the extent and nature of these innovations, which it is proposed to make, under color of a restoration of the past. "III. And in order to facilitate the exercise of the said judicial powers and "authority — Be it enacted. That no Seignior shall hereafter concede to anyone '.' individual any extent of wild land, exceeding 120 superficial arpents, otherwise " than by two or more separate deeds of concession, bearing date at least two years " from each other, or unless the excess over the said quantity of 120 arpenis be *• conceded to the father, mother or tutor for the use of one or more minor children ; *' and in the latter case, the extent of land conceded for each such minor shall not " exceed 120 superfioi^\l arpents, and the minor in lavor of whom each concession **fihall be made, shall be named in the deed of concession." That this Honorable House may understand the meaning of these words "wild land," as they here occur, I must beg its aitention to the Eighty-ninth Section, neaily the last Section of the Bill, and one of its interpretation clauses. It is thereby provided : — *' LXXXIX. The words 'wild lands,' or 'wild land,' whenever they occur in " this Act, shall bo construed to apply not only to all wood lands or lands other- " wise in thfir natural state, but also 'o all land in part settled or cleared, or other- " wise improved by any other person than the Seignior of the censivc withm which *' such land shall lie, if such land so settled, or in part cleared or improved, be not " yet conceded." In other words, supposing any land in a Seigniory, not theretofore sub-granted by the Seignior, to he partly settled or cleared, or otherwise improved; if this have been done by any one but the Seignior, or a party acting at his instance and for him, — fijr [ lake it lor granttd, that it is not meant by the words used, to require that he should himself have been the clearinir settler. — such land is to be considered "wild land," within the meaning of this Hill. But Jieed I go into argument, to show that no such idea as this wa.s entertained in 1718, when the French King limited the obligation of the Seminary of IVlontreal to concede at a certain rate, to wild land, (" en 6o/s f/<6oui,"— land ii\ forest) and expressly saved their right to (leal as they would with any land, a fourth part of which should be cleared (" dont it y aura un quart de dSfrirhe") no matter by whom or how ? Or, in 1730, when Messrs. Beauharnois and Hocquart, writing in a spirit of hostility to the Seigniors, (see page 22 of the Fourth Volume laid before this House,) proposed to let them •^.«\ '•♦V^ 74 liike iho full ndvantage of all clearitiijs, and of all natural meadows, ("c/es lUfrichc' mi-nis el dea jirmros naturtUvs,") wiierever to be loiind within tlieir Seigiiiories ? Or ill n'.i5, when the Kinir expressly refused lo tie down the Seminary ever so looaely, to any usual rate that should limit their rij,'lit to take advantage oi whatever, lo"- any cause, niiylit he the reasonable excess of value of one lot of land over 'nollnr? is it a revival ot old law, or a niockinion to remark uj)on, was one ( it may be roineinbered) of llj74, by the Jesuit fathers, ot forty arpents by forty. At all tjmes, giants were made fn^ely, of all possible dimensions. No law or ArrcL ever ))roposed in this respect to regulate or limit them. It is proposed at last to do so ; to do so, by piovisions that every where leave all possible room lor fraudulent evasion by grantor or grantee, or both, and all possible latitude for the disijielion (or indiscretion, r.s the case may be) of the one Judge by whom all (.lisputes about iliein are, summarily and without appeal, to be adjudged upon. liut I proceed to the Fifth and Sixth Sections ; which read thus : — " V. No .Seignior shall establish by any Deed or Contract of Concession, on any wild lands which shall hereafter be conceded, any rights, charges, condi- tions, or reservations other than that of having the land surveyed and bounded at the expense ofthe ro/ic«;ss/onaire, — of keeping house and home on the land so conceded, within a year from tiie date of the Deed of Concession, and of pay- " ment by the voncesaionnain' of an annual rent not exceeding in any case the sum ' ' ot pence currency lor every superficial arpent of the land conceded. s di'frirhc' iyniuries ? y ever so whatever, liiiul over 8, tliiU is and such to mean — uh->|raiite(l )iiy to the ikl or not, vv, not by illeil wilil, I el«e, an(i is not ; to luive road je ijrraiiteil jme I'athiM-, otn.in with tllioir iivi!, )l get more lo door to ily ot'siiiali 1, in these d. extent tlian I village lot, lutrc vsbie) its hohvj: re strange of date lie down the King we find V tage by so 10 concos- niore than ■n cenu'we ibcred) of :;s, grants j)r()iK)Scd ■so ; to do raiidulciit discrelion disputes in, eoncti- lunded at \e hmd eo of pay- tlie Sinn led. 75 " Vr. All «iich concessions shall ho made in the terms of the form A annexed " to thiH Act, or in terms of like import, and fliall bt! considered, lor all legal purpo>e8, as a constituted rent (, 'e " cons/if'^'c) redeemable at any time, representing the value of the immovea.,.d ^' cliurged tlierewiih, and carrying with it the privdeges oi' baillcur cicfonda." Again I read clauses of innovatory legislation. There never was law in force in the days of ihe Kreiich Government, that thus limited the conditions, which the iScignior might put into his giants, it the LensHiiivi were willing to have them there. Ko lar from it, the ISeigmcr by the terms of his own grant was commonly oliligcd to insert a number otdiher conditions limitative o| his Cmsitaire's rights. As to his own power of i.iseiting more tlian he was so obliged to stipulate, ihero can be no (|iieslion. !, of eon se, do not mean to say thai the public law ol the land at the preseiil day will allow the stipulating of conditions ol a servile character, or otherwise inconsistent wiih what is held to be public light; nor indeed, that stipu- lations ever could be made, in contraveniion ol whatsoever might for the lime be held as public law. Hut lor practical puijioses, sue*' reatrictions on the right of the tSeignior lo stipulate on his own beliali in his conc( .on ell for nothing, will yield no loth. If on (he other hand, the rent be small, the laml at once becomes worth much, sells rerulily at a fair l)rice, yields a liiir rt'liniilo the Seignior in Ihe slia])e of lods. Kaudot propostd to take away on the one hand ; but also at the same tune to give on the other-. This Hill piO[)oses ihrrt the rent shall be a certain sum of nr"ney, — a blank sum, small enorigli of course, — and th-it the land shall he held en franc aieu, that is to say, by a lennre that shnll yield no /(;(i.v at all. llaudol's projuij^al, as we have seen, was too much ail invasion of the right of property, lo be acted orr in those days. Is this proposal one to be acted on ia these? I look, too, at the form of the deed which the Seigirior is to give, — annexed lo this IJill. And 1 find that as a tiring of course it reqiines of him as grantor, unre- seivedly to guarantee to the grantee the quiet possession of his grant. As grantor, I am not to get the value of the land I gi-aiil. My price for my land, the law is to limit. lint my liabiliiy, as having grarrted it, the law is to leave unlimited. Tied down as to quantity, and conditions, and jjrice. — not myself alienating my land, — in fact having it taken from me, — 1 am to be just a.s unreservedly liable to the man who takes it from me, if he is troirbled in his possession, as though 1 had s(dil or granted it lo him for a fair value, of my own free will. And, as if to keep lip throughout, lire style of satire in which the whole is drawn, my rent, (of blank amount,) 1 am told, is to be •' considered for all legal purposes as a «onsliluled 76 ** rent (rente conatiluie) redeemable at utiy time, represeniing tlie value of tlie " iMiinoveabltj oliiirjjed therewith." It is to bo roiiHidered to represent suoh vuiue. Why \A it not to do ho? Why am I not to have that value? My predocejsora had it, under tiuj French Crown. My riifhl ia, to have it now. Once rnoie I aay; citiuses like these could not have entered into the mind of mnn, unle.«s by reasun (d thf! doctrine, in nil its length and breftdlh and I'ulnesb, thill iho SfigiiiorH are wronjT.iioinij trustees, to whom no mercy is lo be iliowii. Tluit doctiini; disnrovcd, — and disproved jt is, — these clauses, one and all, admit of no word ofdelence or apology. But there 'u more to come. The Seventh and Eighth Sections read:— " VII. All sales, concessions, agreements or stipulations herealter made, " contrary to the preceding provisions, shall be null and of none cfl'ect. " Vlll. Every Seignior who shall receive, directly or indirectly, any sum ol *' money or any other valuable thing as and lor the price or consideration of the "concession of a quantity of wild antl unimproved land, over and above tiie annual " rents and dues, or over and ahove the capital they represent, shall repay such *' surplus to the party who shall have so paiil or given the same, or to his represen- *' tatives; and any person who shall so pay or give any sum of money or any other " valuable thing, shall havo an action lor the recovery thereof with costs in any " Court ofcompefent jurisdiction." Aaain, no restoration of anything that was law before the cession. The one nullity in those days ever thouglit of, as I have shewn, was that threatened by the Airit of 1742, — the nullity of every sale of wild lands, by Cemituire or Seignior. The sale of laud not ab;!olutely wild, — the grant of land, in any state, at high rates or under onerous charges, — were never threatened with nullity. There was one remedy and but one, for the one complaint that the Cewsi/ajre might make ; iirul that remi!.iy was by appeal to \he Governor and Intendant, and the obtaining fion^i lliein of the concession, which the arbitrary will of the King had committed to tlmia (on such cjmplaint made, and not otherwise) the light of granting. But by this threatened legislation, I am told the size of the grants 1 am to make : they are neither to be too large nor too small ; all freedom as to conditions and price of grant, is taken from me ; and if any man lor any cause agree to let me have tlie advantage of other and to my inind better terms of any sort, such agreement — no matter how freely m.ide — is to bo *' null and of none eileet." I cannot bind him to his word. He cannot bind himself. JSiay, in the case, oven, of his having given me any kind of consideration whatsoever, to induce ine to prefer him to another, tor any l^t that may chance to have been particularly in demand, I must give it back to him, or his representatives, whenever he or they shall see fit to ask me so to do. There is such a thing as immoral legislation ; and, as one instance of it, 1 must say that iho Jaw that v/antonly enables men of full age and sound mind to unsay their word, to giH back what they may have freely given, or keep what they may have agreed to give, for that which at the time was an honest consideration, is not moral. The less we have ol such law, the better. I proceed to the Ninth Section ; — " IX. Every Seignior who possesses within his censivc any wild land-i, shall be '*' entitled to dismernher from such wild lands and to preserve for his own private '•■ use, Without baing obliged to concede any part thereof, a domain which shall not " cimsist of inor^i flian superficial arpents ; Provided always, that Seigniors " who have already domains within their ccnsives, intended for their private use, of '•' the saivl quantity of arpents or more, shall not have the right of reserv- " ing for such u-se any part of the wild and unconceded lauds in the same r.ensioe ; " and that Seigniors who^u domains already reserved for their private use, are '* under the said quantity of arpents, shall have the right to reserve only " so much of the wild lands in the said cenme as will complete the said quantity of " arpents." th Wi le pe ICr of no »'f IIOl tou iiui if! r-- (lei had nei I rani be n Innoraiion, Htill. — The old Uiw of the Feudal Tenure, a« wft have seen, required the grantee (i( land enfirflo keep such land himself. Kvery porinisHJon to siib-srrant was a relaxation of the rule. And llial relaxiilion was carried in Canada lu its ntin<'.».t lenjJtth, by tlio /I/7ti of Marly ; nndor which the cianliny ot land was not nifrely permitieJ, but in pMieral t«rni.-, and without ppcciliration of any p;irli<'ul:ire\tent of ie«ervabie domain, direolcd. Hut there ejiuld hav«! been, at the linieol tla- tiainiiig of this Anil, no idea of preventinLf a Seignior from roHerviii;: any extent ol\linnain, no matter what, that he couUl make u-.e ol". When the Kiti'j i^raiilod a Sci^'niory iifhix liMUMi's square, to noblemen of hi>ih rank, — as liir instance, he. did lUanhar- iioin. — was it to be supposeii tluit the MaKinis ile Heauharnois, tlie Uovmiior of liio country, and his brother, men of their position and pretensions, were; meant to be limil»;d to a blank luunbor ol nrpenls lor their domain ? Never. And ihe prantees eCiJeigniorieH were, in the great majority cl in>tancen, men of mark and eons, quence ; (. -, y were of noble rurnily ; many were to be rt;\vardcd lor vaiuabh; service rcn- dereil ; jnany renilered spcrjid service tia a eonsldiiratioii for their triant-^; sonio had their .*^ei;(niories (the Comtis of St. Laurent and D'Orsainville. and the iJuroii- nertcs of Porlncuf anil Longuenil, for example) so specially ennobled as to i;ivc rank to llieir owners in t;ie peerage of Kranee itself; as a body, all were meant to be the noblert of New France, Was it ever meant to eay to them, that tluy must not hoKi and use for themselves, niuie than some lixedmaximun Iniclion ol'lhc. va.>t grants of land, whieli by its letters patent the Crown yave tlinn in full propt-rly lor ever ? The Arrrt of Marly could l\avo n)eant to threaten no more than liiia; you are not to keep these grant.s wikl and unused in youi own bands so as to stop the cloarintj ot the country ; the King's object being to get the country cleared, he enjoiriB on you that you sub-grant it to setllerg, as occasion shall rccpii'-e, in consi- deration ot'dnes to be stipulated, and without insisting upon what luuler the ciicum- etances the King does not choose that intending sell lers be required to give — ])aynient of money in advance. When the Kin;^ said this, he said all that he meant to .say*; more than lie meant to have carried out. The enforcement of the order was left to the two highest functionaries in the country; necessarily with tlie widest ian<,'e of discreiiun as to such enforcement; and we know that they were never indisposed to enlarge that range. Practically, I repeat, no Seignior's domain was ever limited. But now, it is proposed (under pretext always of restorin:; the old stale of things) to fix upon some blank number of arpents, as such limit; to tell the de.?- cendants and representatives of these p'oprietorsof theoldlime, — proprietors, many of tiiern, undcrtitles that only did not quite invest them with sovereign prerogatives within the limits of their properties, — that they are not to retain n.oreth.anso many arpents for themselves, the number not known, but sure not to be extravagant ; and that they must part with all the rest, lo whom, cm such terms, at such prices, as the Legislature — no, I ousht not lo say the Legislature — as any one Judge of the Supe- rior Court or Circuit Court shall determine. Let us see, then, what are 'o be the prerogatives of such Judge, in this pro- posed new capacity, as representing the Governor and the Intendant of the days of French absolutism. They are rather high. The Tenth and Eleventh sections read : — '' X. Any person who. after the passing of this Act. .shall have called upon the '* Seignior of any Seigniory whatsoever to concede lo him or to his minor child, a " lot of land forming part of the wild and nnconceded lands of such Seiuniory, may, ■' if the Seii^nior so called upon refuse or ncirlect to concede such lot of land, surn- " mon and sue such Sei^rnior by action or demand in the form of a declaratory " petition, (reqiiele lihelleti) in the Superior Couit, or beforn any one of the Judiies " thereof sitting in the District, or in the Circuit Court sitting in the Circuit, in " which such lot of land is situate, for the purpose of obliging such Seignior to con- " cede the same. " XL Wlienever the Seignior shall have no domicile in the Seigniory in which " such concession is demanded, the writ of summons and the petition thereunto " anue.xed shall be served upon his agent, or upon tba person charged with th« |i t! ■ m! 78 " rolh'rtion (if llio rents of llin »aiil Sficis()ii liiivinii liis dornicilc in tlin Seii/nittry, llic scivico ot tliM will ofMiim- " iniiiiH and of llut |ii'litiii(i tliHri'iiiilii aini<'\ l>v |)i<^ni(irial rcnli^, for tlit! year •* nt'Xl pri'Ct'diiiir ihiu'Ii Mcivit'c, a ilnly ccitifiod ropy of huvU writ ol summons and " «if the petition llicit'iinlo aiiiu'Vcd." I POi; ndlliinii as to llic Icnutli of limi! to einpso lict\vt'(Mi llm service or piislin;^ of this petition and its pre-'eiitaiioii )o llio .liidt;i>. I suppose it in intfinded, tluMf litre. Ill, It il shall lie llie usual len^^'tli nl lime allnwed lnr retiiin of a Hiimmons. 'I'liis ill the Superior Conit is ten days, wiih an allowance lor Ihe niinil'er of leaLnies to lie tiavelled ; and ill the Circnit Court live ilays, with a like allowance. 'I'iiat is to ^ay, within iVoin live to li'n, or at most tweniy day**- I'y a sntiiinonw that iieetl not lie personal, nor «'V('ii a siiminons made at his domicile, — of tlin issue <»f which lit^ may often not lie made aware,- i-vcry Scit'iiior may lie siimiiKined to aiiNwer for liimsfll, on this matter, (the refusal to coiicedt' his own laud to '* iiiiji jwindii^' va^alioiid, straiiixer, alien, no mallei' who or to any " viiiinr iliihl " o| such person — lioy or ;;iil, no mailer how youn;,',) and iIuh helore the .liid'_'e whoin such person may peiect; and the affair, as the next Section of the Hill advises ns, is then to ho *' determined ill a snmmary nianner.'" unless such .liid^je shall lliink lit to order a plea to lie tyhiil, ami wntleii evidence ic Ikj adduced. I ren'l the clause, lest I In* thought to mis-stale its tenor: — "XII. Kvcry such action or demand shall lie determined in a siimmaiy " manner, unless the Conrl or the .indite, lielure svliom the same is hroiiiiht, nliall ''think lit, for the interests of justice, lo older a plea to he tiled and wiitlen ^5 evidence to he adduced ; and in every such action the said l' in wliitdi il shall bt; moie •' in aceoidrince with equity to order that a lot of land 'itlu'r than the one de- " manded, he (umceded to the I'laintifT. it shall l>e liiwfnl for the said Court or lor " the said .Iniliii.' so to tlo ; and wlien(!VtM- the Seiiinior shall, after the expiration of " tlw! delay allowed, have ne;,'lecte(l to •rraiit a ("oncession Deeil in favor of the " I'laintiH', siic.li JndijmenI shall to all intents and purposes bo for the said IMaintiiF " in ilu! i)laceof a Concession J)ceil of the lot of land designated ttieiein, on thocon- ** ditions therein specilied." And so, when, ns tlie represontive of tlie i-rranteo of any land held en fief (tliat is to say, nobly) whether under ijiaiit from Ihe French Ciowii or from the IMtish Crown — say. an repreaeiitalive ol'the first iirantco of Heauport, Despltines, Mount IVluriay, or St. George in Sherrington — holiler undei jjrants of property as absolute and unreetiictod a? can be expressed in French or En ploasn to tliiiik sticli (•iMii-'i' '• iiion^ in nccoiilaiico willi i'([uily," miiy onltM- iim to K'"iiit any otiu'i lot m lutnl tliaii that ti[U'.d lor. I III ly, pciliaps, not Iim present: 1 may he ill ; llu* nia(U or thf wcnihii may havo (h'lanii'd me; I may have Hiaid away, thiiikin'^' it ol litliu cciiiM'tiiii'iioi) what was iloric, — llu! lot dcinaiuli'ii hi-iii;,' one I did not value. Iliit my one .liiil;;c, it (l(ir whatever canst' ti) his own mind at the monicnl si-ernini.' siilliiifMl) he sii.tll Neo hi 80 to do, may yivo thin " any person " any other part ot my land than the jiart hu so (letnanded. Perhaps it may not matter mneli, as matteisare meant in stand liy this Kill, what pail of my land is yiver* to one, and what part to aiinihi t, or which pails aie to ^'o liist. 'I hey are all to •_'<• ; and will iml he lon^; in ;^>'iiii.;. (Still, llm last leather, says the, proverb, is what iueaks tho horse's liaek, Hnt W(! are iiol come to this last feallier yet. The 'I'liiitcM-nth Seelion is as hillovvs:- "XIII. Whenever it shall appear to the said Conil or .(iid;^'e (Init the lot of land, " NO demanded as a eoncessioii, is not sii.>ee|ilil)|(> ol Cnltiv ation, oi lonns part ol a " monnlain, hill, rock or oilier land, which it mii;lit he n<'ues^iary or advanlau'eoiis '* to reserve lor the inakiii'4 ot inaple snv;ar, eitlutr fur tho use ot' tliosi; who shall *• have ac(|nired that riu'hl nndi'r a'jieeiiieiit with ilie Seii^nioi, oi for the n -e ol Ihe " Censitaiuis ol sneh Sei;^nioiy ;;eiierall\, or for any other olijeet oi |iiiMie nsi In!. ** ness in siiidi Seii;iiiory, it shall lie lawinl lor the saul ('oiiits, or Judges to njeil *' such dLmand." That is to say : it shall not lie lawfnl for my .linlnd to reject the demand, on my itrodiielimi of ihe titles of my sei'jniiii y, showiiii;' dial the land claimed is mine ; on my showiin;' that tin; applicant liaH no nnn'e liirht to it, than any other man on this earth — cm' perhaps, that as a vaualtoiid eras an alien he has (il possihie) less claim to it than most others; on my proviii;,' that it is not only mine liy written title, hnt has a hoiii^e (Biy |)ro()erty) n|)on it, and that it is niider cnltivalion l>y a party holding' ha' me, or at any raN; not denyiii;^ my ri'^lit. If this one .lnd;;e shall Ihiiik that it iloes mil hirni part ol the lands reserved hy mo iiiKh-i the saiMtioii ol llie law as a domain hir my own Use, or ihat I am hy law (this very Hill to he sneh law) oblii^ed to make ciineession ol it.— 1 may not keep it. Unless it pleast- llu; .liuL'e to let me. I may not put in my plea to assert my riu;ht to it ; nor examine ;i witness hroiii^hl aL'aiiif^t nil! in wrilincr. IJnt thi; .linlt^e may, in his diseretion, take from me any other lot of land instead. And if (still in liis limitless d'scietioii) he shall think the lot " not siiseeptil)le of cultivation," or a lot which it would lie "advanla- ** geous to reserve for the makin^r of inaple siijjar," or for any other end that he may regard as an " object of public uset'uhiess," — tliat is to say. if he think the lot likely to be of use as a reserve, to any one but me its owner, — he may reject tho demand ; and, I take it tor granted, may reserve the lot accordingly. The Foutteentli Section carries us a .step further : — " XIV. In all such demande, the exception based upon the alienation tliat the *' lot so ilemandetl hirms part of the lands reserved by the Seignior as a domain lor " his private use, shall be rejected on uneontrailicted proof hy twocie so tually and before witne».sos, whenever and how often soever lie may ask either of us, what lands I claim to have specially reserved lor my domain. Or else, I may find him hereafter brini^in;^ up his two witnestJes, to prove that we would ikjI do so; and thus cuitiinj,' awiiy my defence to any claim he may inalc(! to any land wliat- ever, that he shall choose to claim oi me. It, is haul to think that such a clan.se can be meant in earnest. The land may be part of my rcyerved domain, beyond any kind of question; not a stone's throw frum my manor liouse; but tlie Jiulgc is to take it from mo, if it only be swciin by two witnesses, wlioni I cannnf on the ^pot contradict by otl.ers, that 1 or my agent ever refasetl to show the I'laintili my reserved domain, or tiid not show him that land as p.irt of it. The depositmnn may he false; bui I have no right to insist on their beina taken down in writing, to heip ine in a prosecution for forgery. I do not say, tiiere is a Juiige in Lower Canada, who would refuse to let nu; take Piicli evidence in wrilin-r. 1 believe the Judges would be better than the law, Dot law and Judges alike ought to be above suspicion as to purity. The Bill ;hat leaves to the Judge such discretion an must e.vpose him to siispieioii, ought nevfcr to be law. But lastly, to make it impossible to question the intent of this part of this Bill, its Fifteenth Section (the last afiecting this particular part of it) runs thus: — "XV. And all Judgements rendered upon a demand for a concession, either •' by the Superior Court or a Judge thereof, or by a Circuit Court, shall be final " and without appeal." tab ceri ofti the For anythin?, over fifteen pounds currency. :is I have paid, 1 have my appeal, first I'rom the Circuit Court to tlie Superior Court, autl then from the Superior Court to the Court of Queen's Bench. For anything over fifty pounds currency, I must he sued m the Superior Court; i',iid have my appeal to the Queen's Bench. For anything over five hundred pMiiuls sterling, 1 have my appeal to Her Mrjesty in Her I'rivy Council. In any case bntthis, involving niy real estate or rights in future, be the amount never so sniad, ny appeal lies ol' right to that high tribunal of last resort. Hut, under this bill, by tj.i.s one procedure, my land, the land 1 hold by grant from the Crown ol France or jf fJreat Britain, it may be under the direct sanction of the Legislature of the Province, may be taken from me without legal summons, without written pleading fyled or evidence taken ; by any single Juuge, summarily, finally, without revision or appeal forever. Is thit French law ? is it English? Can it ever be Canadian ? I have arrived at the Second Part of this Bill ; which purports to provide for the Reunion to a Seignior's Domain, of lands granted to Cens'taues but not by the latter duly settled upon. This part of the IJill covers Irom the Si.steenth to the Twenty-eighth Sections, both included. The Sixteenth Section reads as follows : — " XVJ. And in order to facilitate the r-union to the ilomain, of isnch lands or " parcels ol land, in the cases j)rovided for by law, and to render each reunion less " expensive to the Seigniors and to the Censitairi's — Be it enacted, that any Seig- " nior may by one and the same action or demand, in the form of a declaratory '•petition, (rcqui'tc libcllc!^.) sue and summon before the Superior Court, silting ia " the District m which such Seigniory is situate, any number of persons holding " lands in the said Seigniory, on liie coiulition ot se'ttliiig on the same, andofkeep- <' ing house and home {ttnirfcic et lieit) thereu]ion, and who shall have failed to *■ perform any one of the said conditions, anil to tleraand, in and by such action, " the reunion to the doia'in of such Sei.'vniory, within .sucli rear-onable delay as shall " be ordered by the Court, of all the lot,i ofhind, in respect to which such condition " or conditions shiill not ha\e been fulfilled; and it shall be lawful for the said '< Court, to proceed and to give such Judgment in the action as to law and justice " shall appertain, with regard to the reunion of all such lot,«! of laud to the domain " of the Seigni iv in whicli they are .situnte."' Fully to show ile purport, somj remavksi may he n«ce«»ury. ; either of se, I may Dot do so; md wliat- ii a claii.se n, Licyoiid llio Judge iiuf on the liiiiitili iny Icpo-siliorw ill writing, > ill Lower )elieve ihe ighl 10 be scietion us art of this s thus : — thor all be final sion, ei my appeal, ,e Superior currency, I sn's Bench, er Mrjepty or rights in igh tribunal liind 1 hold r the direct ithout legal cle Juiige, h law ? 1b Kovide for not by the Imh to the hinds or leunion less lany Seig- lleclaratory sitting i;i |ns holdinij [of keep- failed to ich action , (ay as shall condition J)r the said Imd justice lie domain 81 The two^rre/s of Maily gave 10 the f/ai>j/anf desirous of becoming a Censi- taite, a certain right of procedure against the Seignior ; and gavn the l^eignior a certain other right of proecdme against the CcnsUaiie. The CcHsilaire by the latter of these two procodiu-es could be tiiriieil out of his holding, without sumiiioiis, upon the ccitilicate of the Curii and Captain of the Cote that lit; did iiDt keen hearth and home upon it. IVow, I do not approve of that summary proceeding. [ do not want to go back in any respect, to the past. Most surely, 1 do not want to revive this procedure. The present had need he made belter for all ; not worse for any. \lu\ what is it proposed by this Hill, to enable the Seignior to do against hi.s Cmsitairc ? After the pmpo-a] to let a man who has no ri^ht to my land, take it from me against my will, by potilion to one Judtr*^. sninniarily and without app.'al ; what am I to be empowered to do with tlie Ciusitaire, to wliom I granKnl land on express condi- tion (among o'her thinns) of sctlling and living on il, but who has failed to perform his contract on the faith of which 1 so graiit'-d ? By this Section I ain to have the great privilege of being allowed to sue any number of such delanlicr ('ansitdires, if 1 ])lease, in one action ; hut this action must Le before the Superior Court, where written pleas and written evidence are rights at Common Law. I liave heard ol persons, thankful for small mercies; hut 1 never met with a well autheniicated case of a man thankful for no mercy at all. This privilege is one, of not the very smallest practical value, li I have not it now, the reason is not more to be traced to the technical dilhculties in the way oCsuciia procc'dnre, tlirm to the cousideratioii hat it was never wo.th any man's while to try to overcome them. It is easier and safer to sue five hundred men — each on averments of fact afifcting himself only — by five hundred several actions, than it would be to sue them all by one. What sort ol a nquete libHlUe coukl I bring into Court, to turn out five handled Censitaires, Jor lailure by each to settle on his lami ? All I could do, would L^ to write out the substance ot iwe hundred separate declarations, one alter anoilier, each complaining of one, bnl all on the same paper. My /vi^uc/f would be only five lnmdred dilferent requclcs tacked logeiher. And I should just have to .-;erve a copy of the whole on each man, instead of serving on each man no more than the one requtte that pro- perly concerned himself. Would if. not be simpler to bring each action .separately ? Besides, if I brought them all iu one, I should have a most unmanageable ac- tion on my hand.s ; and — for it is more than doubtlul whether I could p'^ssibly get Judgment against any one or more of the five hundred, till the cases of ull should be ready for final hearing- — I should further he tolerably sure to have the vi'hole of my procedure hung up before tiie Court for a somewhat intolerable term of time, iiy our system of proccdme, as it stands, (and I see no proposal here, to alter it iu this respect,) any one of several Defendants by pleading would delay the suit against all. IJiit supposing that ditliiiulty avoided, this propo'-al still gives me nothing; for I had better (on other grounds) bring my iivo hundred suits than be hamprretl with one unwieldy proce up my mind to let it take ell'ect, — tho^ land is to be sold; hut sold at my expense, tV>r of course the Defendant will make no outlay for such sale. By the Twenty-fourth Section, the Sheriti is to sell in a certain manner; and by the Twenty-fifth, he is to make his return within a certain delay; but, of course, I am at the expense of all his doings. 6* •j,i t k 84 The Twenty-sixth Section at last lets mo c' » a somethinj5r to protect myself, if I can. '' XXVI. Tlie Seii!;nior, PlaiinifTinthe cause, traj' file in the ot.ice of the said ** Prothnriolary, al any time between the date of ihe Jndgmjnt onlenn!^ such sale " and ihe expiration of the two days iinmtMiiatelv follo»rin:^ 'he ret-Mn made by the " Sherifl' of his pioceudings tliereoii, an Opposition a fin dc conscixer, in order to " obtain payment oi the arrears due to him upon any laud so sold." fl If arrears arediie to me on the land, as j^rc-nmably they will be, I too may fyls my claim in Court, for payment out of any money, that the Sheriflf (after paying himself) may possibly have to pay into Court, from the proceeds of the gale. '^^''' is certainly some thing ; ' This but not a great deal. The Twenty-seventh Section says : — " XXVII. The said Seignior and the other privileged Opposants, if any there " be, sh;ill be the first paid out of the amount arising from such s.ile, according to '' the prelerence of their respective privileo-es; the hypothecary creditors •* collocated according to the order and rank of their respective privileges; shall be iciiiaiMin;. V. ini, ivi....uiii. II. .011,^ from the sale shall be distributed among the " opposing creditors claiming for chirographiral debts, at so much in the pcund, or " according to tlie preference ol the privileges they may he entitled to." The proceeds of the Kale, if any there be, are to be dealt with, that is to f?ay, in common course. I lake it for granted, that my costs, as W3ll as my arrears, are to come out of them, i( possible. But the worst of tiie matter is. that, as the land sold is land on which the Cc.mulaire would not do settlement duty. — as it is sold merely because he has not thouglit it worth while to keep it, 9r uct it kept, — it is ten to one if it sell for the .Sheri/f's charges. My other costs, and m_; arrears, are in small danger of being paid. If I get them, I may write myself foriunute ; if not, rather otheiwise. But there is more heliind. The evicted Censitaire may carray his cause through every appeal ; though the evicted Seignior (ap v.'e have seen) may not through any. So, too, ri.ay any defeated Opjiosant or oilier party, with whom 1 may have had to contend. It is only when '' any person'' wants my Jand. that I am to have no appeal. And suppose me ever eo fcftunate ; no second fight with any one, after my In- terocutory Judgment; no ^! : !tion: no Sheriff's sale; no appeal. Appeal, inc eed, we sliall soon see, 01 the part of the Defendant, will be hardly probable. — Th \ land is again mine. Bm ''it inan I have just evicted, can at once turn round ana get it back, again ; may implead me summarily before any one Judge, and force it from me, at a nominal rent bearing no relation to its value, the blank amount whicn this Kill is yet to li.v in that behalf. Will a sane man take tliis trouble and incur this cost, to get back land, after Ruch delay ; when any one may take it from him, the day after? Of course", the thing will never be attempted. No client would think of it. No Counsel could dare suggest it. Still, the Twenty-eighth Section reads as though a lurking impression had been cntertainetl, that such a thing might be; as tliougli it were determined to make assurance doubly sure, that it should not. It runs thus: — *' XXVIII. Notliing in this Act or any other law contained, shall bcinterpieted " so as to give any Seignior the right of demanding the reunion to his domain, of " any town or villag-5 lot or ewplucvment, nor of any land settled and cultivated or " reserved fur ulting lirewood, although the proprietor should not have house and " home therf i. n." So tl;:;S really, ."'"any man ever were to do so absurd a thing as to institute an action of this kind, all that the Defendant would have to say or prove in order to his ion upo 85 defence, would be, that he had ressived the la'id in question ' jr cn'-.n'- lire- wood"; and this is to be taken to be ;h.'. keeping ol iiearth i-nu home, towh <'.hhi~. contract in e.vp;' -s terms biiuis luni, and which ofo'd uieant (.und was at law tci- forced as meauiu^) noi moro clearing, not mere cultivation, but literal residenc". upon th*'land " acquired, or to be hereafter acquired, by him for his own private u.'^e ; ;' ; ;.ny *'■ agreement made between the Seigniorand the proprietor who hasthe doivi ■ atiU " of any land held by him c2 titre dc ce7is, in any Seigniory whatsoever, .-•h ihe " view of depriving such proprietor ot the right of building mil!.-;, or other ina-nfa'- " turing establishments, (autres udncs.) is hereby declareel to Lie null ; ar:i 'verv " such agrep.nent shall, to all intents and purposes, be hereafter considered as n'ti " having taken place, whether the same be stipulated hereafter, or made before UiO '*■ passing of this Act." The reference to excessive rents, is here out of place; and I suppose rnu.st have found its way into the clause, by some error of copyisi or printer ; and therefore I will not here speak of it. But as respects the remainder of this clause, several con- siderations suggest themselves. It is drawn, as though all that i.s obnoxious in the Seigniorial Tenure, were tha consequence of contracts which Seigniors have insisted on making in contravention of the ancient laws of the ceuntry. Such cannot be the case. The heaviest of the burthens of the Tenure result (independently altogether of contract) from what I may call the Public Law of the Tenure. The lods ct rentes or mutaiior line of a twelfth part of the purcha.se money, payable on every sale, the burthen which moie than any other presses upon the public, and retards improvement, — i3nd the right of banality, or exclusive privilege of grinding grain at the Seigniorial or Hanal Mill, as it here exists and is maintained by our Courts, — are no result ol special contract, but arise out of the la • ; the former, out of the old Common Law of the Custom of Paris; the latter out of the local legislation, for Canada, of the Cnnseil Siipcrieur de Que&ec, and of the French King,. "AiuHt is these, which form the comparatively onerous and objectionable part of the Seigniorial system, as it here exists. The 8G mere fact of a farm being burthened with a gioiiad rent of at moat a few pence per arpeut, is a inattci- of far less moment, — in fact, a matter of no great moment in a fiolilicul point of viuw. Anil as to the other special burthens and reservations stipu- atod by some contracts, they are practically of still less conseqiieiice ; beioir many of them little more than waste paper, not enfoiceJ, nor likely lo be. The luds et venks and banality are wliat press the mott ; and these, as 1 have said, are not the result of Seigniorial cupudity, but of legal enactment. To return, however, from this digression. The true question is : are or are not any particular clauses and reservations, between Seignior and Censilaire, illci^al, — repugnant to Public Law, — so that, although agreed to by the partiey interested, the law will not enforce them ? I( the law gave me the right to make a contract, though the making of such contract may not perhaps be for the public interest, no man has the right to require afterwards that it be held null. It was a legal, binding contract, wlien made ; and such it must remain. Further, the biuden of proving that a con- tract is thus repugnant lo law and null, must rest with those who assert it to be so. Have they, as regards this present matter, cited any text of law that eleclarcs clauses of reservation by a Seignior, null ? Or any Jurisprudence of our Courts, that might be presumed lo show the law so to be ? I'here is no such text of law ; no aui-li .)u- rigprudence. — They are chiracterized as prejudicial to the public. [( so, it may be a public benefit to get rid of them ; but in getting rid of them, we liave at least no right to punish the one, and to reward tlie other, of the two parties who originally agreed to constitute them. Take measures now lo put an er)d to them; put things as they ought to be: but do not say, the public has changed its mind, — what was once lawful, shall be so no longer, — we are going to make a new world, and so doing, we mean lo enrich or ruin whom we may. The enacting part of this Section proposes to deal only with one description of reserve clause in concession deeds, — that, namely, having for object the reservation from the Ccnsituirc, of water-powers on non-navigable rivers. All such water- {)Owers, it is proposed to declare to belong to the Ccnsilaire holding the adjacent and ; all clauses to the contrary in the deeds of concession, it proposes to declare null. Now the question of the rU/. i of property in these minor rivers and streams is tolerably complex; and its soluUon in each case presented, must depend on the par- ticular circumstances of sue h case. It is impossible, in a few lines of an Act of Parliament, to sny anything declaratory of the law about them, without doing the greatest injustice to all sorts of people. Nothing can he more certain, than that under the old French law, when a Seignior (himself liaving the droit de pcclic, or right of fishing^ within his Seig- niory) 2' anted land bordfing a river, to a Censitaire, if he did not in terms grant also the right of fishing tberein, it was presumed that he kept it. The Censitaire, to h;-ye the right, h;ui to get it. If his deed did not show that he had got it, the Seignior was understood lO have retained it. I am not saying that this was as it should be. I am not urging it as a docirineto be now practically enlbrced, as of old it was with all the rigor possible. I cite ihis rule of the old law, merely as showing beyond a doubt, that by law, the Censitaire who held the land did not as of course hold nny right approaching to that of properly in the water running past it,— had not eve, I the right to fish m surh water. The correspondence between Messrs. Weauh;i'T).:!':s and llocquart, and the French Government, of the years 173-1 and 1735, (pa'.-; -s 31 and 32 of the Fourth Volume so often cited,) on which I have al- ready r :nari:ed^ (if authority were wanting) is decisive of this point. The Governor and Int.Midii;.'t, it will be remembered, wished to oblige the Seminary to grant this right of rishtiv to all seuleis; hut the King would not so far change the law, aa at nil to fetter the iree action of the Seminary in that respect. A . onstant (succession of legal decisions in the Province, also attest the rigor with which ihis lule was maintained. Two Urdonnanccs or Judgments, in par- ticular, I may allude io, rendered by M. Begon, ihe one in 17:23, the other in 1730, (see pages 83 and ^33, of the Second Volurne laid before Parliamenl.) in the mat- ter of a soniewhat obstinate dispute between the Seignior of Portneul", and I wo of Ills Censilairas The SeigUior complained of two ofhia Ccnsitaires whose deeds gave thel wo I Th([ havT slaiJ broil relul tishil othel line,! enjo) senstj certdil ber oJ into t| was 111 speci; third and w — Lat l.vxxix were from tl 1 87 them no right to fish in front of their lots ; alleging that they did so fish, and yet would not pay him tho yoaily rent wliich he was willing to tako ior the right. They replied that thoiigh the right had not been expressly granted to them, tlieir iielghhours all had it, and they ought to have ii too. lint the luteiulant hold thurn to have no such ri^ht : and at once condemned them, ciili(.'r to pay the 5>eigiiior or ab- stain trom fishing. Some time after (in 17.'!0) we find the isame parties a^ain brought before the same Intendant ; the Seignidr Retting forth, that they had of "late refused to pay the rent order-d in 17-23, that he hail liiereupon leat-ed the riirht of fishing in front of their lots to another party, and that they persisteil in fishing and otherwise molesting such party. Tliey were at once condemned, on pain ol a heavy fine, to abstain from all fishing and to leave the Seignior's lessee in exclusive enjoyment of his right.— in \'i'd2 and 1733, again, tvro other Judgments in the same sense (see pages 150 and 151 of the same Volume) were rendered with respect to cerldin disputes between the Seignior of St. Francois on lake St. Peter, and a num- ber of his Ccnsitaircs The title ol'thai Seigniory carries it out a quarter of a league into the Lake. The Seiirnior insisted on his exclusive right of fishing there, and it was maintained against his Censitaires, that none but he, and those to whom he should specially grant the right, coukl fish there ; that he could even leujc the right to a third party, lo the exclusion of the Ceimlaires whose land bordered on the Lake, and who were contesting with him the point of their right to CiAi without his leave. — Later still, in 1750, only ten years before the cession of the country, (see pnge Ixxxix of the Second Volume of the Edits ei Ordoanances) the Censilaires of Sorel were forbiden to fish, urrder heavy penalty, unless pursuant to written permission from the Seignior; for which of course they had to pay. 1 allude to these cases, not because tl'.ere is at this day any difficulty about the right of fishing ; but because it is here proposed to yive to every man, what- ever the terms of his grant,— though it be thereby expressly stipulated, even, that he did not take the water, —that tha water is his ; that the stipulation to the con- trary is null; that the man who said, I take the land without the water, who ac- knowledges that he never acquired the water, shall notwithstanding have it given to him ; and that the man who with the consent of his co-cjutraetant reserved it for himself, shall not be suffered to keep it. Was such a reservation contrary to law? The law holding, that even in the absence of any stipulation, a grant of land conveyed so little control over the water-, as not to u'ive the grantee so much as a right to take fish in it ? If it be said, indeed, that the owner of the land ought, on grounds of public policy, to be the owner of the water la front of it, or to have the right (on payment of the lair price) to become so, I can understand the proposrtion. If that is to be adopted as a new principle of public policy, let it be so called. Con- trive the machinery for effecting the required change ; but do not declare away the vested rights of parties, whose relative position, as the law stands, admits of no shade of doubt. I am of course aware, that there is a certain amount of controversy, as to how far the Seignior is owner of these streams. In the case of Boissonnault vs. Oliva, (Stuart's Reports, page 564,) where, however, the precipe point was not material to the decision triven, the learned Judge who stated liie Judgment of the Court, spoke of the waters of non-navigable rivers as Jusliders, belongmg to ine :SeigncuTS Ilaut J, and hinted that as the Seigniors oi Canada. ^ -re practically no longer Haut Jusliders, the Crown alone dispensing all Justice, the Crown had become the owner of all these small streams. The doctrine, that the waters of the smaller rivers were in France the property of the Hants Justiders, is undoubtedly the opin- ion of many writers of high mark : but many again, also ol high mark, think differ- ently. No question arising out of the old law of France, has perhaps been contested more keenly ; or at this time more divides the opinions of the able men who have examirred it. As to which side has the weight of authority, or the abstract truth of tire case, I would not wish (referring to the subject as I do, incidently) to be under- stood as venturing to offer a strong opinion. But certainly, the most satisfactory woi-k I have been able to find on the subject, that of Championniere, holds that these rivers were the property of the Seignior of the Fi(f, or Seigneur Feodal, the true owner of the lami ; and that the Seigneur Ilaut Justicier was no owner either of the land or water, but merely a grandee of more or less importance, who owned the right of levying certain dues (droits tie Justice) on persoirs within his jurisdic- tion, and of dispensicg justice — a profitable employment iu the olden time— within 88 limits more or less extensive, among such persons. In France, tho Hunt Juslicier wa*. not nccessrviily tin! holilcrol any landed /■'/>/ whatever ; and where lie was, the territorial limits ot his Justice and of his Fiff were constantly not tlie same. It liei'ame ihu.^ a question, whether the ownership ol' llie non-navij^abie etreaiiis was 111 tlie tSeigiiiov wlio held tlie /t/sfuT, or in tlio Seignior who held \he Fief. The Crown at an early date had made good its eiaim to bo held the proprietor of ail nuviarable riv«,Ts, as a neces^^ary consefpience ol its ritrlits as bfiiiy what one may eall llie supremo JusticitJ, chargeil with tiie exercise ol' all haxtte poticf and juris- diet ion over them. And the Hauls Juslicicis on the like ground claimeii a like pro- pcity ill the minor Btreams. In eome parts of France, and at some periods, their claim was maintained ; in other localities, and at otlier times, that of tho Seiiijiiiors ol the mere iV./was held good ayaiiist them. No one ever thought of the doctrine, that the strciani in controversy, could belong to a Censihiire, unless by reagon of some uneipiivocal grant made in his favour by the Seignior (whichever it might be) there and then held, by prcBumption of law, to be euch owner. Since tho abolition of all feudality in France, the question has there assumed a nev»" aspect ; but the old controver.^y remains unsettled. On the assuinptiou that the Htieains belongeil to the Lord of the Fief] they must have passetl, under the le- gislatiou which destroj-ed the Seigniorial T eiiuru, to the Censitaire of the land ad- joiiiinjj. On the assumption that tiiey were the propeity of the Lord of the Justice, they must havo passed to the State. As of olil in France, the State has its vant- age ground, in all controversies with the individual. I5ut, notwithstanding this, the controversy cannot be said to he yet settled either way. In Canada, the state of things has always been, in these respects, materially different. The Seignior, grantee of a Fief, was not always coiistitutctl a Just icier ; though he was so in most eases. But the 7«(s/ic/'e/' at least always held a Fief, and his Justice and Firf were co-extensive. Every Seigneur Haul Justkier was tlieri-'forc, in one (piulity or other, originally the proprietor of those waters, as well as of the hind, within the limits of his Fief. Of course the navigaole rivers (though in some giants of early date, expressly given away) were by virtue nf the Public Law, and have remained, the propeity of the Crown, whether of Fiance or of Great Britain. Those here who hold that the non-navigable streams were originally thi; property of the Seignior in his quality of Justicicr, may hold further (as was hinted ill tlie case of Boissonnault vs. Oiiva) that by reason ot the Crown alone exercising jurisdiction of any kind under our Public Law, such right of propeity has vested in the Crown ; though such inference, bj the way, admits of grave controversy. But even admitting such inference, we come to the conclusion that the Crown, and not the Cmsituire must be the true owner of these waters. U, on the other hand, thtre be any ihiwiuthis reasoning, — if the property went to the Seignior as grantee of tlio Fiff, and not as grantee of the Justice, — or if, going to him in his latter quality, it be not held to have passed from him in consequence of bis merely losing the rights of jurisdiction that were once attached to it, the Seignior, and not the Crown, is sucii owner. On either supposition, the Censitaire (unless his giant be in sucli terms as in law may be held to pass title to him) is not such owner. But the case does not even rest here. Numbers of the grants to Seigniors, as I have had occasion to observe already, in express terms give them the pro|jerty of certain riveiw, or of all rivers, in their Fiefs. I have only to-day had placed in my hands the original document by which the French king ratified the grant of the- Sei- gniory ol himouski; and it in so many words grants "the river Rimouski" and so much land adjoining it. There are some scores of such crants ; and scores of others that give rivers and streams in general terms : none, that imply the idea of not giving them. Now, in cases where the grant of streams is mentioned in the instrument of concession, it must be clear that the property in such streams granted was not given as an incident of the Justice, but as part of the Fiif. Indeed, it was sometimes so given, where no Justice at all was granted. There are certainly cases, therefoie, and those not few, where it is impossible to hold the Seisnior's right over streams to have ever been that of the Justicicr — where it cannot have passed to the Crown. — where it must be his, unless indeed (and this is matter of legal inference from the deeds of concession he may have granted) he be found to have parted with it to his Censitaire. tail giv cas Lej liav iieil sti tlie am wit A t Just icier e was, the same. It reaii\8 was ■'ief. Tha letor of all I one may ' and juris- a like pro- rioils, Iheir (3 Sei^;nior3 le doctrine, y loiison of t might be) e assumed inptioii ihat nder the ie- llie laiul ad- tho Justice, IS ilH vant- anding this, j?, materially a Juslicier ; a h'lef, and islider was. ers, as well vers (though ;i: the Public ^ or of Great riginally th(! was hinted e exercising has vested outroversy. Crown, and ither hand, r as grantee .. his latter erely losing .nd not the his giant be ner. igniors, as I property of "laced in my It of the Sei- 5ki" and so Id scores of the idea of loned in the Ims granted |eed, it was ^inly cases, right over Used to the \\ inference ive parted 89 In any and every supposablo case, however, the fact is patent, that the Cenii- tairc, unless his deed — interpreted as tJie law shall bo loniul to interpret it— has given them lo liini, is not the proprietor of the streama. And whether, m particular (uu«es, the Crown can claim to be such pioprietor, or not, it is at all eviMits m.t for the Legislature lo step in and say ; this man, who has no right to the water, shall have bulh land and water, — ai.d that man, lo whom both were given, shall have neither. On ininciple, you might as justly say, tluit the land on each side of a .stream must lieloiig to tho owner of the stream, as that the stream must belong to the owner of the land. I am not without iiigh local authority, in taking this view of this part of my case. 1 have had placed in my hands, a public document — an authentic copy of an order in Council, of the Executive of this I'rovince, bearing date as late as lb48, and having relerenoe to this ([uestion, as it then aro're for decision by government within the Seigniory of Lauzon, a property belonging to tho Crown by private title. A Ceiisitairc holding land in that Seigniory, but wno did not own the water power adjoining his lot, — or rather who had acquired from the former Seignior, one water power only, out of two that existed there, with a mere permission subject to the t>eignior''s revocation to use the other for ceitain s|M!cial purposes, — had applied for a commutalion of tenure. Tho (juestioii presenteil itself, whether by commuting the tenure he would become ihe proprietor of botli water powers, that is to say of tho stream in its entirety. If so, the whole value of the stream would have to be taken into account, in fixing his comnuitation money. If not, not. This question, in the document I speak of, is fully and ably treated. It is tiierein laid down, that non- navigable streams clearly belong either to the Seigneur Ilaut Justiocr or to tho Seigneur Feodal. ; that on either supposition, this stream had become the property of the Crown ; that this Censitairc was wrong, if he thought that lie could become the proprietor of the other water jjrivilege, by merely commuting the tenure of the land ; that ihereloie, the value of such other privilege was not lo be taken into account in estimating his commutation line ; and lastly, that (to avoid the risk of a doubt as to ilio inionded ell'ect of his commutalion) a clause should be inserted in the deed of commutation, expressly declaratory -tf the fact, that the water power in question remained tho property of the Crown. That decision was a right one. The Seignior who has once acquired the stream, and h.is not parted with it, has the right to hold it as his own. No man has the right to lake it from him. You may, if you will, provide lor its being taken from him, CIS you may ior any other propeity being taken from him, for any sufficient end of public policy; but he must be paid for it, and paid its full value, when it shall be. so taken. — It is not to be taken first; and he left alterwards to prove the iact and amount of loss thence resulting, and to pray lor an uncertain indemnity, which he may very likely never succeed in getting. Yet this is what this eection proposes to do, as to this matter. The Thirtieth Section proceeds to the kindred subject of the right of banality ; and reads thus : — " XXX. The right of the Seignior to require the Censituire to carry his grain '* fo the banal mill to be there grouiul, on paying to the Seignior the ordinary toll " for the grinding of such grain, shall herealter be coneidercd as applying to no " other grain than such as is grown on the lands held a /ti/cc/e ct«s in the Seigniory '• in which such 6(i/iu/mill is Rituale, and is intended for the use of the I'aniily or " families occupying the said lands." Now this right of banality, l may say without doubt, (for i am confirmed in so saying, by all the jurisprudence of the Intendants and Courts before the cession, as well as by that of the Courts tince,) exists in Canada by virtue ol the law, and independerUly of contract between .*>!eignior and Censilaire ; athoughitdid not exist in France within the local range of the Custom of Parii?, unless by virtue of such contract, or other sufficient title ; and it involves the right on the j)art of the Seignior, to prevent any other mills than his own, from being put or kept in operation within the limits of his banality, — to prevent any miller beyond ihose limits Irom beating up for custom within them, — and lastly, to oblige his Censitaires to bring their 00 prnin for grinding al his mill, on certain fixed terms, as to price and otherwise. Under the Custoni ol I'uuh, I have MiiJ, liiif* ri-^lit ilid not exist at Common Lawj but it could always jje enlorei'il, and wii-s enlorcod, to the letter, whenever any ( I'uxildiri' wan siiowii by jiiti deeil to have agreed to it; and it (•(luld even ho eii- joreed, and wan cnlnrcfii against all tlie woiid, whenever the Seit^nior couKI how wliat wiiH calh'd u " I il re luliibli^^ -a. bulWc'unil title to warrant ^ncli entorcement. 1 do not liere go into tiie detad of wliat constituted Kuch tilre I'aliiblu ; the consent Ol recogniiioii of Mich and such a pioportion of all the Cfiisitaites, and ^o fortli, 'J'lie only ini|ioitant ixiinl, Ih'h% in liie lact, that in Canada, the state of lldiijfs, a.i exitiliiiu; nil. Id the ('u>loni of I'ari.i, was altogelht.'r cliaiij^red, by twd leading Aircln of a h'gislaiive character. The (ir.-t ol lhe.se was an {net or decree of the I'onstil Sujwrit'ur (le (^inline (a body uiulonhledly capable ol making Piidi a law) under (hue ottho Jat ol July, 1075; and which is to he loiind on page '2^5 of'h'; Second of the Vohinies laid bcloie Pailianicnt. 'J'his Artct ordained, "that all md''. wliLlher '' water indlH or wind mills," — by the Cnstoni of I'aris, no wind mill (•■•nli; oo. pre- Biiiiied banal — '• which the Seigniori shall liave built or yhall cause to be built here- *' alter, shall be banal." The other wasan Atrcl of the Knig liimselfin bin Cunseil d'Kliit or I'rivy Council, under date ol the Mth of June, lllHG, (printed on page J2'i7 of tlie same Volume,) wliich ordained '"that all Seigiiiora, possessing y/f/s *' within the liiuils ol the said country of New France, shall be held lo cause to *' be erected banal mills within u year alter publication of the present Arret ; and, *' the said delay expirvd, in default of tlieir liaving so done. His Majesty permits •* any poisons, of what rank or coiidiiion soever, to build sueli mills, atiribuling to '' them lo that end the right of banality, and h)rbidding all persons to disturb them." By h)rce of iheso two Anita, every Seigniorial mill was conslituted a banal mill ; and every Seignior was declareil to have tho right of banality, in respect of such mill. IJe might lose it, it is true, by non-user; and in such caso any one elso might ac'juire it. But unless he did so lose it, it was by law hie, And aj to his losing it, 1 should perhaps say a word or two. To any one not conversant with Lower Canadian law, the second of the two Arrets I have rend, may seem to imply that a Seignior wlio should not have built within the year uiier its promulgation, would Ip.iofado lose the right. But such is not, and never was held to be its meaning. Like the lirst of the two Arrets of Marly, it merely enjoins a duty — .so limiting to a certain degree a pre-existent right which it admits ; and after such injunction, it provides a remedy against the possible case of faihne to obey. Tlial remedy consisted, in the right to be given to any one else to build mills, and so ac(juiie the banality of tlie Seigniory, to the e.xclusion of the Seignior. Till this should liave been done, the Seignior, though he might liave no mill in operation, retained his right to have such mill (whenever put into operation) held a banal mill. /\iid any other person, in the meantime wishing to avail himself of the remedy provided against the rase of the Seignior's neglect to build, had first to summiin the Seignior by legal process, so as to establish judicially the fact of his being in default, and thereupon to obtain a judicial sentence forfeiting his right, and attributing it to Jiimself the PlaintilL It has been argued, with much ingenuity, that the right of banality, as intro- duced into Canada in 1675, did not comprehend (as in France, wherever existent, it undoubtedly did) the right to prevent the working of any other mills in the Seig- niory. The Arr^t of 1075, after the words I have already cited, declaratory that all mills built or to Li'f built by Seigniors " shall be banal", proceeds thus: — "And " thereupon, that their lei ants who shall be bound by tlie contracts of concession " that they shall have taken of their lands (qui se seront obliges par les titrcs decon- " cession quails mtront prisdc lews terres) shall be bound to take their grain there to " be ground, and to leave the same there at least twice twenty-foui hours, after which " it shall be lawful for them to take the same away if not ground, and to take it " elsewhere for grindinir," &c. And it has been urged, that the only banality granted here, is a banality granted against Ctnsitaires who by express stipulation to that elfect in their deeds should have subjected themselves to it ; that tlie right was therefor ? not an absolute right of the J/t/, but a mere right to enforce a certain contract, il ..lade. On which latter supposition it is further urged, that it could not go the length of preventing any one not bound by such contract, from setting up a mill within iV.eJief. This view, liowever, has never been maintained judi- cially 5 on the contrary, in the last case decided upon the subject, — that of Monk li. ed (j ubilii decil witlil spcal hiin^l IKit (V;i.s'i be 1 knoul rightf ttirin the t(| who it irnpl of thlf those boundl under prccisi 91 )tlierwise. 1(111 l.uw; iievor iiiiy u bo eii- julil -how orct'irii'Dt. ; COIlJ<»;ilt I fO I'orlli. iiii,' Airela 10 I'unntil L\v) uuiler Seooml of , wlicllier lij be pre- luilt irero- lin CviiscU il nil page s!.iti;j; Jitfs I cause 10 ret ; 1111(1, y pertnitrt ilniliiiij tu 1 1) them." iial mill; et of Buch ' one elsu ly one not lave rpa(1, year uiler lever was ly enjoins nits ; and uihue to ; to build i^eignior. H) mill in idii) iield limself'of d first to [act of his is right, IS intro- |existent, 18 Sei;|- that all -" And Incession Is de con- 1 there to ^r which take it Ibanality liulalion Jie right certain lit could 1 setting |(1 judi- ^ Monk I*. Mori is, (see pa^e 3 of tlie Third Vohinio of the Lower Canada Reporl»,) decid- ed (iiiite lately by tliu Siiperior Court at Montreal, — thonyh iirgi'd with the ulinoBt ability by the Defeiiilaiit''ri coLiii-el, it was over-ruluil by tin- Court. And all former decisions, bej'urc! as well as since th(! ri'Shioii of llie couiiiry, urn aL'ainst it. And with good ii.'aijoii. For, il Huch wck! the meaniii;,' ol'llii" .IrrCt, it had — .io Id ppeak — no imviiiiny at all. liy llio (."ufltom of I'aris, any CiiitiUuiiy who hail hound himself to giind at liie .Seignior's mill, was so bound, whether the mill was oi wag not banal. To say ihi.l a mill was banal, waa to say a great ileal more than that I'l'nsiluireSf ihfielo buniid i'y .special conlrai't, must go to it. 'J'iie mill need not be banal loi that. TIkj woi\i banal was a worJ, the meaning ot which was well known, and ol wide aj)[)licatioii, Tln-ie wen^ in various parls of France, banal rights of variou.5 sorts — liaiial ovens, banal winc-presHes, and so lortli. Ami the term everywliere imported the ban, prohibition, or excliision of all rivalry within the teriitorial limits ol the banality. It livciywluMo importcil also the holding otall who came within its rang(! (irnvpcclive altogcihcr (d coiitiai'l) to the obligations it impoeed. No l'en.sit-ilaire or holder of land under such a deed, — iiom sucii obligations. On the contrary, ita very letter iinporta precisely the reveive. Now, the ciaupe of this Hill which 1 read last, lliis 'I'hirticlli Section, does not indeed in tciuis proless to abrogate ihis ligiit, of e.xclusion of other millers from a Seigniory. JUit — and inoie especially as rend in coniifctiDii with the preceding Section — it tacitly imports such ahiogation. Hy the Twenty-ninth Section, iho Seignior's water powers uredeclareil to bfl mg to the CeDsildiiv, and all agreements by the Cinsilaiie to the ellect that he will not l»nild mills on his laiul, are declared null, liy this Thirtieth Section, the right of banality is spoken of as though it were a mere right "lo require the Ciusituire to carry his grain to the banal mill." Such enactment and recital once passed, it is clear that any one "ould build any sort of mill in any Seigniory : that this part of the existing rightof banality would be lost to the Seignior. And it is obvious to remark, that this is really the only part of his rii_dit worth keeping. It is that, through which alone he can practically be said to have any right at all. In former days, Seigniors used to sue Cevsitaires, to oblige them to grind at their mills, or pay the toM of what they ground elsewhere. But those times are past. It is worth no man's while so to sue now. And no man does so sue. The Seignior's only hold is through his ownership or rcservntions of water powers, and his right at law to stop rival millers from competing with him. This, it is now proposed most effecinoHy to take from him. It requires to be paid for, before it is so taken. This clause goes even further. It would give the Censltaire the legal right to evade the grinding of any of his grain at the so called banal mill ; for he would only have to sell his own grain and buy other, or even to exchange il away; and he could then say, the grain you claim to grind, is no grain grown here for my laniily, — Avhat 1 raised here was not so intended, and I have parted with it, — this that 1 am using, I got elsewhere. The evasion is of small practical moment ; because such suits are never likely to occur. I'ut it shows the spirit and lemiency of the Bill, — that, besides giving every one the right to build rival mills to mine, it should thu3 go on to give every one the power of evading the nominal obligation which it professes to leave in force, to give my mill a certain measure of preference. I repeat; I am in no wise contending for the maintenance of banality in any shape. I might, of course, say with truth, that the banal mills of Lower Canada grind at a considerably lower rate than obtains any where in the country, beyond the limits of the Seigniories; and that they do their work well, to the satisfaction of those who use them. ]ndfc..id, the Seigniors can be compelled at law to keep them in good oriier ; ate under stringent h';;al ability in respect of rate of toll, a nd quality of grinding. But I have nothing here to do with all this. I am defend ing no part ol the existing system. I only insist, that its pecuniary advantages to my clients, are not to be taken from them piece-meal and by indirection, leaving ihtm IMAGE EVALUATION TEST TARGET (MT-3) &^ z V v^ V 4^ ^ '^ 1.0 I.I I^IM |25 ■ 4.0 lU U IL25 ini 1.4 |2g 1.6 HiDtographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) •72-4S03 ^ :<\^ N> o'^ '^ 92 to prove their past existence and value, and beg for tardy, inadequate, uncertain compenHation aftervrards. I have not quite done, however, with this matter of banality. The Bill con- tains two more Sections, the Thirty-first and Thirty-second ; which I must read, leet I should bethought to paraphrase or represent them otherwise than as they are : — " XXXI. Every Seignior having more than one hundred Censitaires holding " lands in his LCiisive, and who, after the expiration of two years from the passing " of ihis Act, shall not have constructed at least one banal mill for the grinding of " the grain in his Seigniory, and every Seignior who, after the expiration of " two years from the period in which there shall be more than one hundred Censi- ** tains holding and settled upon lands in his crnsive, shall not have constructed '* such mill, shall, as well as his heirs and representatives for ever, forfeit his right '' of banality in such Seigniory ; and it shall be lawful for any person to construct " one or more mills for the grinding of grain in the said Seigniory, and to grind or *• cauFB to be ground in any such mill all grain brought thereto, without being *' liable to be disturbed by the Seignior as such, in the enjoyment of the said rights ; ** but no such person shall be entitled to exercise the riglfit of banality in respect to " any mill so constructed. "XXXII. And whenever a fianoZ mill shall not be in proper order, or shall be " insufficient for the grinding of grain belonging to the Censitaires of the Seigniory, *' or of the part of tlie Seigniory in which it is situate, any Censilaire settled upon '•' any land in such Seigniory shall be entitled to sue the Heignior of such Seigniory " before the Superior Court sitting in the District in which such mill is situate, for " the purpose of obliging him to repair such mill, or to place it in such a state as *' will make it sulRcient for the wants of the Ccnaitaires ; and it shall be lawful " for the said Coiiit, to proceed and give such Judgment in every such action, as to " law and justice shall appertain." The right of banality has been cut down to a shadow ; made valueless to the Seignior. His water-powers are taken from him. Everyone may build mills id compete whh his. No one need prefer his mills to any others. But they are still ironically called banal mills. And enactments of regulation are proposed as to Ruch mills hereafter to be built; as though it were possible any should be. And further enactment is proposed, to make it dear that the Seignior's obligations as to his existing mills are in no wise to be abated. Banal in nothing hut name, for any use he is to have from them, his mills are to be every whit as banal as they ever were, for all purposes of annoyance to him by any Censitaire. With no hold leli to him upon his Censitaires, every one is to have firm hold of him. Again I say, all this is of a style of ..'oislation that cannot be. We arrive at the Fourth Part of the Rill ; that which treats of honorary rights, pre-emption, (retrait,) rents and hypothecary privileges; extending from the Thirty-third to the Forty-second Sections, both included. On the Thirty-third Section, which proposes to abolish all honorific rights of Seigniors, I need make no comment. My clients will be happy if, abandoning them — Ruc'h as they are — they can but secure the common immunities, as regards property and personal rights, of ail others their fellow subjects. They ask only, in all respects to have the same measure of right dealt forth to Censitaire and Seignior equally. Th** Thirty-fourth Section is as follows : — " XXXIV. The risfht of conventional pre-emption (retrait conventionnel) shall not be exercised in respect of any immoveable propeily sold under a writ of execution, (par decrtt.) or other judicial authority, and it shall not be exer- cised in the case of any such immoveable property being sold in any other man- ner than by judicial authority, unless the Seignior prove that the said sale is tainted with fraud." 03 To part of this clause, I have no objection to offer. That property be not sub- ject to relrait, when publicly soid under process of law, is an enactment of which my clients would nut be disposed 1o complain. The remainder of the clause, however, they do complain of, strongly. To make the whole matter clear to Members of this Honorable House, not conversant with Lower Canadian Law, I ought, however, to go into some explana- tion of what iliis relrait is. By tiie Custom of Paris, when land has been gianted d rens, it is held subject to payment of a rent — the rent stipulated in the deed — which rent, or at least that part of it designated as the cens properly so calieii, car- ries with it lods et ventea ; or, in other words, entitles the Seignioi to a fine of onc- twelfth of the purchase mon^'y, whenever the land shall be alienated by sale or other contract equivalent to sale. Tlie same kind of due accrues to the Superior Lord, or Seignior Dominant, upon land by him granted en jiff : but the fine in that case is much higher. Land granted en Jiff is charged wiih no aimual feudal due payable to the grantor ; and for that reason among others, is more heavily burthened as regards casual dues. The mutation fine on ita sale, is fived by the same Custom, at the Quint or fifth part of the price. Historically, no doubt, both these fines had their origin in that uncertainty of tenure, which (as I have observed) once characterized both kinds of grants. 'I'he holder had no right no alienate, without his Lord's leave, the Lord — owner still of the land gianted — being entitled to insist on having neither Vassal nor Ce- sit ire on his laud, whom he might not trust or like. In process of time, as the practice of allowing such alienation grew into a right, payment came to be settled by usage, as the price of the Lord's consent. Tartly as a remnant of this olil light of pre- venting alienation, and partly as a means of preventing fraud as to the amount of the mutation tine, the Custom of Paris gave the Lord, the right, upon the sale of a fief held from him, either to come in for the Quint or to say, I am not satisfied i\t: to this sale, and decline to take this buyer tor my Vatsal ; instead of accepting 'un Quint offered me, I take back the fiof: here is the amount of what you call the purchase money, with that of your reasonable expenses ; ami now, iho Jiif is ir'ine. This relrait feodal was of common right throughout France. And many of the Customs gave the Seignior the same right, in reference to land held of hiin d cens ; so that when the Censitaire sold it, the Seignior might in just the same way exercise what was called the retrait ruiurier. The Custom of Paris, however, did not give the Seignior this latter right, as a thing of course ; but it did not at all prevent liim from stipulating it in his grants made en ansire. Whenever he did so stipulate, ho enjoyed the right. And such stipulation was of course, common enough. The obvious value of the stipulation, as a protection against fraud, — more especially where, as was the case in Canada, lands were commonly granted low, and Seigniors looked for their future wealth mainly to the proceeds of their banality and lodSy to accrue thereafter as the land should acquire value, — made the stipula- tion here, from the eurlieft period, an almost universal usage. And such it has con- tinued ever since. i » I'll It \tionnel) a writ »e exer- r man- sale is Tlie right so stipulated is commonly termed, as in this section of the Bill, that of the " retrait conventionnel ,^' or retrait stipulated by contract. And it is, precisely what this designation imports. Now, this Section first proposes to enact, that when land en cennivf. is sold under judicial authority, this stipulated light shall not be exercised. The contracts establishing it make no sucn exceptio'n. But at the same time, as the publicity of judicial sales must always enable the Seignior to gnaid against fiaud by bidding at the sale, the right of retrait afterwards, is not one that he ought on equitable grounds, to have. And I know of no Seignior who would care to object to its being done away with, in that case. But the Section goes much further. It would enact, that though it is matter of binding contract that this right is mine, I am not to have it, to any practical use whatever. I am nut to exercise it, unless I prove the sale fraudulent. Why, if I can prove fraud, I can of course at law have my luds et ventts^ from the buyer, cal- culated on the value of the land — its true price. Nine times out of ten, it would i a ■• ^l' 4 11 \ 1 m 94 belter suit me 1o have that payment, than to buy in the lanth neeitles, the end for which 1 made the contract, was to yiiaril n;xainst frand that I migrnt feel sure enou<>h of, but con Id not prove. Nine times out often, I .should very likely tail to prove the fiaui! ; hou(;ver sniu I m''i;lit be ll:at the price slated was a fraud upon me. This relrail 'u, the only reliable protectii)n I ( ;in have. 1 stipulated it, law- fully. It is my legal right. — Why is it to bo taken away ? Is it said, tliat like others of my rishts of property, it i^ a kiml of right, which had better not be ? Tnke it, then ; but iiulen\iiiiy me firpt, for its .'ess, I have no right to object, I do not object, to any changing of the law lor the public gi;od ; but I protest against such changes involving me in ruin. The Thirty-fifth Section carries the power of repudiation of contracts as regards this matter, further etill. It reads — "XXXV. Any sum of money, or other valuable thinor. which, after the passing "of this Act, shall bo paid or given to any Seignior, either directly or indirectly, " to induce him to refrain from exercising the right of relrail in the case of any " sale or mutation ellected within his censicc, shall be recoverable, with costs, by " action before any Court of competent jurisdiction." Conscious of frand, fearful of my suit — whether for full lo(k et ventcs, or for the exercise of my rttrait — the parties indemnity me. 1 am satisfied ; so too are they. But this Bill is not. It puts it into their power to recover back from me the pay- ment they have made, with costs. I must sue ; must risk loss of costs, and more, in an action to prove fraud. If I do not ; if I let the party pay me, without the cost and discredit to himself, of such suit ; I give him the power to mulct me in costs for my folly, in a suit to get back his money. I find it hard to think of such a clause, as part of a seriously proposed enact- ment. Its irony is too cutting. The next following Sections, the Thirty-sixth and Thirty-seventh, are clauses of extreme importance ; and iigain, extremely open to objection, p.s injuriously affecting my clients' vested interests. They read as follows : — "XXXVI. No Cenailaire or opcupier of land in any Seigniory conceded before " the passing of this Act, except building lots in a Town or Village, shall be " required to pay ns an annual seigniorial rent, to lull due hereafter, any sum of " money or other value exceeding the sum of two pence currency for each super- " ficial arpent of land occupied by him d litre (Ip cens ; notwithstanding any sti- " pulation to the contrary made by himself or by his predecessors. "XXXVII. All seigniorial dues payable annually in personal labour (corvees,') " grain or otherwise than in money, shall hereafter be paid in money, at the price " at which the same shall be worth at the time the said rents shall fall due, and <' shall be reduced to two pence currency for each superficial arpent of the land " upon which the same shall be charged, in the same manner as rents payable in money. 5> By a former clause, the Fifth, — as I have shown, it is proposed to fix a blank price as that at which I nuist part with my lands not as yet conceded. That, at all events, thougli atl'ecting my vested rights, was in show a project of jTospectivo legislation. It purported to tell me the terms on which I was to be allowed, or rather forced, for the future, to deal with what I claim to hold as my own. But 1 -.1 ...,r : .,. l...,.l .!.„» I !>,.,.., ,,.,..i...1 ..,:iU ., 4...",- 1 go en ratner lorceii, loi iiie iniure, lo ofcu wmi \viiiii i l-iujui lo uuio as my uwri. n here are clauses referrinir to land that I have parted with upon teiins long a; established, by coutraeis then freely made under legal sanction. Those who then so dealt with me, took such land, engaging to pay nie a yearly rent of four pence, six pence or perhaps a shilling, per arj)ent ; perhaps they agreed with me to pay in wheat, for tlte express purpose that the rent, being made payable in a kind of food, the chief support of human life, should never iherealter materially change in value. It is now proposed, by law to tell me, that though such was our contract II 1 shall payable tence ? was the some, b have at which very tru ilid just kinds of who m; Some S ted a ve which, I was suff a settler Legislat reduce t of our pr have ten of our la our land rates, w( as fixed. improvid on. Gie diificultie rear of al were dra- of their c the forest old, they singularly new pari; faith, iu tl settlerneni the value sors and ii would, ha law whats be louche If toui sure of thi seldom ex contracts c amount, ac year 1712 Besid( Because nc hence ? I whatsoeve years heiic may be wc payment ii applying tf adopt, and True, 1 reason enoi TheT 95 corvees,) 1 shall not have the benafil of it. I am not to get mori? than two penre currency, payable in money, per arpent, yearly from this dr tor ever. And on what pi o- tence ? Under the French regime, it is said, few rents exccfdcd in anioinit. what was then the money value of a sinyie penny currency, |)er arpent ; thou^rii ni (Uct Home, by the way, did. \vc!!. however that may liave been as matter ol lad, F have at least slio^v-n that there ;iever was a maximum rate, lixed l>y hiw, beyond which it was illegal to slipnlale J liave, even .'■liown. or tlie contraiy, tlial in very truth as a {,'eneral rule, every man in tl-ose days, as regarded ihesc; siipnliitions, did just what was ri^ht in his osvn eyes ; that there were about as many ililicrent kinds of bafirains made, as there were ditleiences of disposition on the i)art of those who made them. Since those times, land has become nuich more valuable. Some Seigniories were not granted till after the cession ; a good many were gran- ted a very sliort time only, before it. There are Seigniories, little or no pait of which, under what I may call the police regulations of the Frcncn Ciovernment, wai5 sutfereil to be sub-granted before the cession. Many at that time had hardly a settler on them. Since then, what has been the course of the (ioveriiment and Legislature and Courts of Law, that Parliament should now ho called upon to reduce the rates at which I or my predecessors may have snb-gvantcd any poilions of our property ? If, in old time, ihe control of the Inlendant would at all events have tended to keap down our rales, it at least tended to fore nn ii to take more of our land tlinr ;hey otherwise would have done ; and .so would have helped off onr land sooner, and made it sooner valuable to us. If granted years ago .ii lower rates, wc shonlil ever since have been in receipt of revenue from it, casual as we'l as fixed. As the case has been, from the dale of the cession, enoimoiis and most improvident grants of land in free and common soccage have been constantly going on. Great dilliculties — not precisely legal dilliculties, to be sure, but ."^till real dilficullies — have been thrown and kept in the way of extending .settlement in tlie rear of all the Seiiiniorial country. The emigrant populatioii Irom the old world were drawn by a variety of considerations to the free and common soccage lands of their countrym.n. The French Canadian population would not push back into the forest, without their churches and Cures. Instead of being driven liack, as of old, they were kept uniler special attraction, in their front settlenunis, by the singularly unwise policy which long discouraged and retarded the establishment of new parishes, the building of churches, the orderly settlement of the cleriiy of tlieir faith, in Ihe rear portion of what was professedly the land reserved for their especial settlement. In the meantime, while much of my land has thus Iain unproductive, the value of money has been falling, and the valuf '"f larivl rising. My predeces- sors and myself, left free to make our bargains wiu. whom we would, and as we would, have contracted with others ?qualiy free, and on terms contravening no law whatsoever, past or present. By what show of right aie such past contracts to be touched ? If touched at all, on what show of reason are they to be cut down to the mea- sure of this two-pence currency per arpent? if the two sols said to have been .seldom exceeded a century ago, cannot now be maintained as a maximum for contracts of yesterday, the process of doubling sucii two sols does not give us an amount, according to the values of these days at all ' quivalent to the twoso/s of the veai 1712 or 1T30. |a blank it, at all Ispectivo Iwed, or [n. But Jong ago ho then pence, to pay kind of |ange in :ontract Besides, with what pretence of right, fix a maximum in money, at all ? Becau.se no one knows what may be the real value of two-pence currency, a few years hence ? Because the A'alue of money is just now changing more than anything else w^hatsoever ? A bushel of wheat will go as farto sustain human life, hity or sixty years hence, as now. But two-pence currency in money ! Who knows what that may be worth, — even a few years hence ? When men have freely bargained for payment in kind, of set purpose to avoid this risk ; what pretext can there be, for applying to tlieir conventions that very money rule, which they had a right not to adopt, and deliberately did not adopt, as the rule of their transact! True, the change is one to cause heavy further loss to my clients. But is that 3U enough ? The Thirty-eighth and Thirty-ninth Sections propose to enact as follows : — 1 96 " XXXVIII. No sale under writ of execution (par rfcfr<50 shall have the effect " of liberating any inimoveuble properly lielil d litre de. rens, uud so sold, from «' any of the riu;lils, charges, condilions or rt'servation.s ostabligluid in r.jspe<'i of such " immoveable property in favor of (ho Seiynior, but every sucii immoveable pro- '' peity shall be considered as havinjjbeen si)Id,sid>ject to all siioh rights, eliariites, *' conditions or reservations, except in so far as they may exceed those allowed by " the Section of this Act, without its btiinir nqeessapy for the Seignior to '* make an Opposition for the er.id purpose before the sale. " XXXIX. If, notwithstanding the provisions of this Act, any Opposition djin *' de charge he mado hereafter for the presmvation of any of the ri^dits. charaeE, " conditions or reservations mentioned in the next preceding; Si.'clion of this Act ** Buch Opposition shall not have iho elK'ct ot playing the sale, and the Opposant ** shall not be entitled to any costs thereon, but it shall be reluriioil into Court by the •* Sheriff after the eale, to be dealt wiih as to justice may apppertain." Upon these clauses, in so far as they merely tend to obviate the necessity of putting in 0)iposit ions in order to the saving of Seigniorial charges upon land en censive sold by the t.'...»riir, 1 have nothing to say. In connection with the forty- first Section, I shall presently have occasion to speak of the limitation whieh this clause hints at, as intended to bo wrought, in respect of the charrjCS to bo allowed on such land. The Fortieth Section reads : — *• XL. The privileges and preference granted by law to Seigniors, to secure to *' them the payment of the Seigniorial rights which shall hereafter become ilue, 'S ' ' '* shall only be exercised lor arrears which shall have iHllen due during the (\\e " years next preceding the exercise of such privileges and preferences." At present, they can be exercised for thirty years' arrears. And it may bo hard to assign a good reason for proposing this piece of exceptional legisli'.tion ; unless, indeeil, it be such reason, that it tends to the disadvantage of the Seiirnior. There is even a dash ol the v.v post fuclo in it, as in so many others of the clauses I have had to notice. — Secure in the existing law, Seigniors have refrained from suing ; well knowing that at anytime within the thirty years, the arrears due to them ■would be recoverable as a debt Imving a certain known priority of claim. But they are to lind out their error. Whatever amoinit of such arrears they may have allowed to run, beyond the term of the last five years, they are not to be sufl'ered to recover, as such privileged claim. Baudot, in 1707, suggested a new short term of Prescription, auainst every- body. This proposal is against the Seignior only. And yet, one would bo tempted to think that he is hardly tha man to be so selected ; since his accruing dues fall in yearly, in such small amounts as to make it no slight hardship that he should have to collect them even for the time to come, (to say nothing of his vested right for the past,) within the five years, on pain of risking their loss. It forms part of the plan, too, we must remember, lo e thing more, — a smaller thing than many, — but .something. It is in keeping with its predecessors. The Fifth pan of the Bill follows ; from the Forty-third to the Seventy-second Sections ; the portion ol the Bill which takes up the .natter of the Commutation of the Tenure of lands held d cens. The First Section of the Bill, it will be remembred, has proposed to repeal the Acts, under which at present Seignior and Censitaire con agree as to terms for such Commutation, and can carry into effect their agreement, whatever it may be. Thene Sections contain no provisions of that character. The Censitaire imiividually, or the Cenmaircs of a Seigniory collectively, may be wiling to make their bargain with me, and I with them. But under this Bill, no sucli thing may be. The terms of the transaction are all fixed for us. And how ? By the Forty-third and Forty-fourth Sections, we are told that any holder of land m rottire may commute his tenure, on paying in the way to bo designated by after clauses, the price of tho redemption of^ his Seigniors's rights, — that is to say, ( 1 ••ly, of the Seignior's fixed rights (whether in kind, money, labor, or otherwise) avi'i banality, — and secondly, of his casual rights or lods et ventes. The Forty-fifth and Forty-sixth Sections provide for the appointment by Government, of three Commissioners; to be sworn before a Justice of the Peace, and paid as the Governor shall direct. It is not said, that they arc to be professional men of any particular standing, or indeed professional men at all ; yet we shall sec presently, ihat they had need be lawyers of hirh mark; for they will have (or rather, each by himself will have) to decide knotty quest ions of law in abundance,- - to interpret thousands upon thousands of deeds, or rather first to interpret and then alter thei"' interpretation as this Bill directs, — to pronounce on the rights of property of some hundreds of thousands of people, — and all withDUt appeal ; and afterwarde, they wdl together have to sit as an extraordinary Court, and adjudge upon a class of causes, the most intricate and difficult, as well in respect of law as in respect ci fact, that ingenuity could well devise. On the other hand, however, it might not do to say they shall be lawyers ; for the Advocate is not usually eminent as an investigator of accounts and settler of values of all kinds, as we shall see these Commissioners are bound to be. They are to be sworn to perform their duly. I hope they may be able. But they had need be all but omniscient. By the Forty-seventh Section it is to be enacted that each of them is to draw up in triplicate, a tabular Schedule of all the lands in each of tjie Seigniories to bt? allotted to him, — showing the amount of the redemption money for each lot of land, and distinguishing such redemption money in every ct se, into three parts, that is to say, the price set on the yearly fixed charges, on the banality, and on the casual rights. The Forty-eighth Section gives some instructions, as to how theso prices arc to be set. The yearly fixed charges, we are told, are to bo rated at the capital represent- ed by them at six per cent. And if this rule were carried out, there woulil on this score be nothing co complain of. But it is not. There is first to be met the case of the charges stipulated in kind ; and how iss thia met? The Commissioner is to nothing, an c 99 ;ed to put oi.o ot iho (Is thus :— rolure ami )entes hhull ifns bo ac- nil if it bo iking awiiy I in keep ins Ejuty-Bccond imutation of to repeal tho irms for fiuch it may be. imiividualiy, heir bargain ly be. Tho ny holder of signaled by lat is to say, or otherwise) ointment by the Peace, irofessional we shall sec will have (or jundance,- - et and then of property afterward?, upon a class in respect ci it might not ntiinent as au 11 see these their duty. is to draw ;niories to b« h lot of land, )arts, that is 3n the casual « prices arc al represent- tVouUl on this let the case lissioner is to vahie llu! arlicIoH slipidattMl, rircordiiig to tiicir piicC' ni " lakcn from the boukft •' ol llio mercl tiits ucart'st to tiio placn," and liu is to comu at his average, by lakirii; tlu^ valiu-s of »'ach of the last fourteen years, thiiN .iticertaiiiud, — iliori stiiliiiig oil the two highest and the two lowo(«r oi' past years to betaken at all ? necause prices as a general rule liavo been rising ; so that a money value of some years ago will be lower than the money value of to-day 1 Oi on what principle, as 1 have already urged, on what principle turn all into money, — when, as we shall see, it is not cash p; yment or ev«,'U payment wl'.hiu any term of time whatever, that is comtemplated ? Abov? all, why cut »he result down, to a money maximum? Unless, indeed, it bo that nothing short of the maximum of wrong that can inci- dentally bo inllicted oil the Seignior, will siifTico to meet the exigencies of this ]ieculiar case ? For tho setting of his value on the banality rights of tho Seignior over each lot, our Commissioner is thus directed. " To establish the price of redemption of the right of banality, an estimate '' shall be made of the decrease in the annual receipts of tho banal mills to arise *' from the suppression of the right of banality and from the inhabitants being " freed therefrom ; the amount of the said estimate shall represent tho interest at '' six per cent, of the capital which shall bo the price of redemption of the banality '* lor the whole of the Seigniory, and the said capital shall be apportioned among '* all the lands subject thereto, accoiding to their superficial extent." Good. But how is ht to make this estimate? And when? If immedi- ately, what will it be, but a sheer guess? i<'iv« years hence, or ten? Is the whole machine to stand still so long? And if it were; to what use? For live years or ten, no new mill maybe built in my Seigniory; audi may in that case have lost nothing. Tho next year, when 1 have been pronounced to have lost nothing, an enterprizing miller steps in; and I find I have lost all. Further, — though, perhaps, the ending part of thi.'; clause may seem to be more iTiy Ccnsitaircs^ business than mine, — I cannot help asking myself, why the value of my banality, thus to be guessed at lor my whole Seigniory, is to be *' appor- " tioned among all tiie lands subject thereto, according to their superficial extent ?" Is it merely, that the poor Censitaire who keeps hearth an f home, by keeping up au intention to cut his firev^ood, on 90 arpents of land that he can hardly sell for its very worthlessness, may have to pay as much to clear it from my banality, as his neighbour is to pay to the same end, for the 90 arpents, all laid down in grain, tliat form part cf his abundant wealth? Or, is it also, that the extent of my uii- conceded lands, which I am not to keep, may be made a pretext for throwing only a part of the price of my banality, on those wno ought to pay it to me in full i My casual rights are to be valued by the sama sort of process as my rents in kind ; that is to say, by an average of ten years out of fourteen. Again, I ask 7* i't ' > Ml ?l f'l ■ '' 11 100 why ? I'erliaps, becauBe income from toda et ventts is the most fluctnating and inicortain income possible. The revenue of the yearti struck out as highest or lowost may atl'ect the average to any conceivable amount, or to none at all ; just as it shall happen. For exatnpio, from the public returns of the quint revenue of the Crown, (a revenue precisely analogous to the Seignior's revenue from lods et rentes,) I find its average for thirty-eight years ending in 1842, was JE836 63 5i. The maximum year's receipt diirmg tnat term was £'i,856 17s 5d ; the minimum i5 68 4d. In 1845, it was X.3,470 13s 8d; in 1847, Al* Ss — d ; in 185l,noMing. But, aside from the objection arising out of these liuctuations, the chances of course are, that a revenue thus valued at an average of past years, will be set below its value. In an old country, this might not be so much trie case. But we have heie a new country, with its fast-changini; values, to deal with. And there will even be the greatest differences in the working of the rule, as between diflernnt Seigniories. In many, it must work the most enormous injustice. A large part of a S»*igniory has been conceded within the last ten years ; its revenue from lods et ventes is of the future. Another was all conceded a century nndahalfago. Is this one rule bo the rule for both ? The Forty-ninth and Fiftieth Sections direct the Commissioner to issue certain notices before he begins his work; and give him certain powers for the conducting of his inquiry. On these sections I make but a passing remark. His duties are not more all-comprehending tlian his powers. He can summon and examine any one; and enforce the proiluctiou of anything. Upon refusal of any body to appear or ** answer any lawiul question," or "produce any book, paper, plan, instrument, " document or tning whatsoever, which may be i'l his possession and which he " shall have been required to bring with him or to prouuce," the (Xjmmiseioner may arrest him and commit him to the common gaol of the Diatrict,— but happily, not for more than one month of conlinemcnt, nor with the added pleasure of hard labor. One hopes that no Commissioner will ever wantto see what ought not to be shown. For if he should, one's rights would not bo too secure. By the Fifly-first Section it ia provided, that as soon as he has finished with each Seigniory, the Commitisioner is to deposit one of his triplicate Schedules with the Receiver (Jenernl, and another in the oMicCjiof the Superior Cour in the District ; keeping tlie third himself. And this done, he is to give notice of the fact in the Canada Gazette, and in some other newspaper of the District, or adjoining Dis- trict, as the case may bo. Thus deposited, the award is irrevocable. He may have made the grossest blunders or committed the most flagrant injustice ; but there is no appeal. He may find out and confess that he has blundered ; but even he can- not amend or rtsvise. Tlie triplicates may not accord ; but none can be altered, so as to bring them into accord, aud make it sure what ilie true award is. The sum- mary Judgment that i.s to give away my land to any person who may want it, is not to be more *• final and without appeal," than is to be this Schedule, or rather, each triplicate thereof, — signed, " that it be not changed, according to the law of the Medes and Persians, which altereth not." Unalterable, these triplicate Schedules 'of ray Seigniory are deposited ; and their deposit advertized. The Fifty-second Section shows the right which is there- upon to accrue to each of my Censitains^ in respect of the commutation of the te- nure of his land : — " LII. It shall be lawful for the owner of any land held m roiure, as soon as " the Schedule for the Seigniory in which sucli land is situate shall be completed ** and dejwsited as aforesaid, to redeem all the Seigniorial rights to which tuch land " is subject, at the rate specified in such Schedule, by adding thereto interest cal- " culated at llie rate of one per cent, per annum on the price at which the casual ** rights may be redeemed, from the day of the date of the deposit of the said Sche- dule, as required by the clause of Ihis Act ; and such redemption shall ' be made in some one of tho modes hereafter provided, but not otherwise.' The following Sections, to the SLity-seventh inclusive, are taken up with the ■ ''"" ^ "*""" not comment upon them in detail, ect, but to the entire principle upon ine loiiowing oecuone, 10 ine OLity-seveni , ^ subject of these modes of redemption. I shall not comment upon them in detail, because it is not to mere detail that I have to obj— ' '—* '- '^ — " ---■"' which th redemptii pleases ; scliedulo laire, free Censilairc change it, such o/licc him I ho re which lattj or redeem i futed rent, neral. Ar process noi creditors, v payment, I Court for n my creditor not,— the m lie with the may be, an lo hght ovei And thi tAveen my d( course proce by neither o uncertain pn ~-nor yet ev( all is Clone, I one sum at a it. It is to b( may choose. True, it shall be paid what is oddly " the price at " of the depoa cent, on part ( my casual ri^ be taken only the value of n rising. But ^ lieve money is ol one per cen to be taken, 1 fixed for the i money, it is t( coming more crops to be grt lods et ventes i are fast inerea take now. But will be then. lodset ventes i Bill offers me. And not oe from me, my ci low its value, tl come to me, th J do not ask tha " »» my righ re, as soon as 101 which thoy all rost. It is cnoiisli to say, that a linio in fixed within which the redemption must take plnco ; that every Ccmitaire in frco to cotimiute when lie pleases ; or not at all, if he does nut p\easu. Till he shall please to commute, thti scliedulo remains a dead letter, so rar as ho is concerned. He remains a (^cnai- laire, freed from half his obligations, or more, us thecaso may be, — but in name a Censitairv ; and the obnoxious tenure of his land sub'jist!i« When he wants to change it, he is to go, not to me, but to the Receiver General of iht; Province, or such ofiicer as the Receiver General shall name to that end ; and is either to pay him the redemption money, or simply declare to him his dtfsiro to commute, — in which latter case, the redemption money becomes a constituted rent {rente loasliluii:) or redeemable charge upon the land, bearing interest till K'deenied. Such consti- tuted rent, again, whenever redeemed, is so to be by payment to the Rer-eiver Ge- neral. And all monies so paid, whenever paid, are to find their way to ino, by a proceas not the quir '.est in the world, calculated in some measure to protect my creditors, who are not to be left quitt so badly of! as I. If three months after any payment, I can give tlie Receiver Generalja certificate from the Clerk of the Superior Court for my Distiict, that he has no Opposition in his hands on the part of any of my creditors, I can get the amount with the interest on it, paid over to myself. If not, — the more probable case, by the way with most Seigniors, — my money is to lie with the Receiver General for three years, or till it amount to £500, as the case may be, and is then to bo paid into Court, with interest, for my creditors and myself to light over, as we best may. And this is u valuinij and redeeming of ray rights. Not by agreement be- tween my debtors (individually or collectively) and myself; nor by the matter of course process of an arbitration between us, if we should not agree. A man named by neither of us, is in all sorts of indirect ways to undervalue, b^ a slow, costly, uncertain process ; and then he is to cut down his undervaluing ; and neither of us ~nor yet even he — can correct any error or injustice he may commit. And when all is done, I am not to have my mockery ot a cash price, in cash, nor even in one sum at any time ; as, were it valued ever so faiily, my right would be to have it. It is to be paid in dribblets, no one knows when, just as any one but myself may choose. True, it is provided by the Fifty-second Section just read, that as each dribblet shall be paid (or promised, as the case shall be) there is to be added to its amount, what is oddly called " interest calculated at the rate of one per cent, per anuum on *' the price at which the ca-sual rights may bo redeemed, Irom the day of the date " of the deposit of the said Scliedule." But why one percent ? Why such one per cent, on part only of the price ? Above all, why only on that part which lepresents my casual rights ? " Interest" it clearly is not ; and is not meant to be. It can be taken only as a sort of recognhion of the certain fact, that as years pass on, the value of money certainly will be falling, and the value of my Seigniorial rights rising. But who will say how fast either process is to go on ? Most persons be- lieve money is on the eve of a rapid and long continued fall in value. Will a rise ot one per cent, per annum protect me even against that ? If it Avill, it still ought to be taken, not upon a part, but upon the whole of the so-called money value fixed for the redemption of my rights. But apart from all fall in the value of money, it is to be remembered that the value of all property is rising ; lands be- coming more extensively cleared and better cultivated, — sales more frequent, — crops to be ground at the Seigniory mills, larger. My revenues from banality and loda et ventes must be held to be increasing revenues. In many Seigniories, they are fast inereasing revenues. What is now their money value, I could afford to take now. But if I am to be paid twenty years hence, I must have what their value will bo then. Adding one per cent, per annum, merely, to an undervaluing of my lods et ventes alone, is a mockery ; another mockery added to the many that this Bill offers me. And not one payment ever is to be to myself. When my land was to be taken from me, my creclitors were not remembered. Against any person wanting it be- low its value, they are to have no rights, any more than I. But when money is to come to me, they are remembered. Against me, they are not to lose their rights. I do not ask that they should. Protect them by ail means. But protect me also. It is my right— and theirs too— that my property be not dealt with aftek this 1 n M 102 fuHhion. Wliiit otiicr cIuhs of men was it evor i)ro|H)««ul solo treat? Auk the nmrclmnt or profesHioiml niiiti, how ho would liko to huvo liit) books liunJed over to UNtruiiger, all his accounts miuiircd without nppoal, and all his duhtors told to settlu whea tliuy pleased, with a public i'unctionury, who ahould then hand over tlio procuuds to hiH crcditoru. Hankruptcy ! No liaukrupt law thut ever was, ever dealt so hardly with its victims. Protect my creditorn, I repeat ; by all moans. HutatleaBt do not ruiti mc. II my rights aru to bo taken, take them ; but securo to my creditors and mvsulf their honest value. To do this, that value must hu Huttiod fairly, and laid before us in one sum ; not every separato six and eijirht- pcnco, (ivo poundH, ten poiujds, twenty pounds, of an under-sliilod value, paid in at till Hoilri of inlervals, justas a thousand people ntay chancu to choose, 'i'heie is no Way but one, m wl»ich to take private property for liie public good. The romaininff Sectiont of this part of iho Bill, from the Kilty-eighth to llic Seventy-second inclusive, are clauses wiiich contemplate the coniin^'oncy of two thirds of the CetisUaires of a Seigniory desiring to commute ujmmi ihe terms set forth by thu schedule ; and which enable them in that case to eiiect the coiiversion of all Seigniorial dues therein into coneitituted rents, — and further, if they shidl so please, to act tugether as acorporation for the redemption of sufhcouHtituted rents. Upon these clauses I hav no other remark to make, than that I rcj^^ret not to find in the Bill a far more complete developement of the principle upon which they rest ; as it is to that priucii)le one must look (if we aiu to look at all) for any real commutation of the tenure upon the voluntary prniciple. They create no machi- nery by which the Seignior on iho one hand, ami his CeiisitdiriH as a corporate body on tho other, can acree on terms of commutation, or failing to agree can settle any dilference by the ready moans of" arbitration. There could bo no mate- rial dillicully in arranging the details of such a system, in a way to work neither inconvenienco nor wrong. But these clauses, as they stand, do not do this; and failing in this respect, they can hardly be said to bo of any practical importance as part of the Hill. The despotic machinery for cutting down the value of my rights remains. And it is not even likely that these* clauses (limited as their scopa is) will ever bo thought worth acting on ; so as to lessen ilie additional injury to be done me by the |)iecemeal mode of settling for them as so cut down, which is established as the rule of procedure under this Bill. I have done, then, with this portion of the Bill, and pass to the next or Sixth Part, extending from the Seventy-third to the Eighty-Hflh Sections inclusive; and which treats of the proposed indemnity to Seigniors. The recital of the Seventy-third Section commences thus:— - " LXXIII.— And whereas some of the powers formerly vested in the Gov- *' ernor and Intendaut of New France, under the laws promulgated by the Kings of " France, lor the purpose of restraining all undue pretentions on the part of Sei- ♦' gniors, have not been exercised since the said cession of the country ; and ** whereas dilferences of opinion have existed in Lower Canada, and conflicting " decisions have been pronounced by the tribunals established since that time in " reference to tho character and extent of various Seigniorial rights ;" An unfair recital. If powers adverse to Seigniors have remained unexercised since tiie cession, to what has it been owing, but to the fact that the law of the land has not provided for, or allowed their exercise? And liave no other powers, far more vexatious, adverse to tVusj/aires, remained unexercised ? Are they alluded to? Or proposal made for their revival? And " conllicting decisions" of the tribunals of Lower Canada? As to what points; in what causes; when? I will not here undertake to say, that there have been none. But I do say, that I never h<;ard any cited, or their existence asserted by any one. Why, as 1 have said, the notorious cnniplaini has been, that the Courts of Lower Canada have decided al- ways for the Seignior. *' Ditference of opinion" I well know there has been ; a dillerence of opinion between a large class of persons not Judges on the one hand, and the Tribunals on the other. But for the Courts ! If anything in this world can be certain, it is that this large class of whom I speak, have lor years steadily assailed them for the nniformly Seigniorial tenor of their decisions. If anything The( and, after Attorney ( the Sevent shall coutii in detail : 103 I has been ; a can bo new, it id tl)t8 aMcrtiun that thuir ducisiund, the nicunwhilt*, havu boon oun- Hictin;;. Hut 1 procfcil wi'h thii recital :— " And wlicrt^as, \«hil ' it in tlio (hity ol the LogiNlaturu, to rustoru to |iursiinff " coiiliiiuini^ It) iiokl laiuU in roture^ (in so liii as present cirfumstaiicfs will pcrniil) " tliiMiirliiH uiiil inininnii't's secureil to liii'in by law !ih iiiterprt'led and adininih- '< U'li.'d at till) last mentioned period, it is at llio same tinn; just that Sfljrniois who ** have tMiJoyeil liicrulive piivilei'e:*, of whicli tlu-y will in liitiirt' bt; (K-prived by " tliis Ael, notwillistandiu;; the tMijoynicnl ol Mueh piivile;,'(!.s may have been ** saiu lioned by the said iribunal.H .■tmce they ceased lo exereiM! the aforesaid '* |)out>rs, .should be indcmiiilied lor the loasuri they will sutler from the mannei in '■ whicW the ri^lit/i to lie herealler exercised l»y Seigniors nro dehned by this Act, He it therelore enacted,— That ituluill be lawful for any Seignior to lay kelbre tlitf said (.'onnni^isioners, a statement in detail of llic amoimt of loHg sustained orlhere- " alter to be Kustained by hirn, by reason of his havinjj been curtailed, limitei' or restrained by this Act, in the exerciHO ol'any lucrative privilege, or in the receipt ol any rents or prolita which as such Seignior ho would have been entitled to exer- cideor receive before the passing of this Act." When the Seignior's land is wanted by any person, we have seen liow, sum- marily and without appeal, one Jui'gc is to lake it from him. When lii.'" contract with his C'emUain: is to bo onforceil, wo have seen how, formally ami deliberately and subject to appeal, a Court of three Judges id not to enlorce it. When his rights aie to be (irst undervalued, and then cut down below such undervalumg, we have seen how, again summarily and without appeal, one ('ommissioncr is to do all that that case requires. Wo have now to iee how, after los« aulfered by the Seignior from these processes, loss amounting (it well may be) to ruin, he is t-« proceed, hopefully if ho can, formally and subject to appeal at all eventS| with his after prayer for some measure of Indemnity for hiS loss. He is to begin, by laying before the three Commissionners— not before ono-- h is precise " statement in detail of the amount of loss sustained or thereafter to " be sustained by him, by reason of his having been curtailed, limited or re- '' strained by this Act, in tl e exercise of any lucrative privilege, or in the receipt "of any rents or protits which as such Seignior he would have been entitled to " exercise or leceive before the passing of this Act." All I can say, is, that any Seignior who shall sit down to make his statement for himself, will find it pretty hard; and any one who shall get it tlone for him, will find it pretty costly. A statement in detail, of all his losses by this Bill? Why, the best lawyer, and iho best accountant and man of ligures, in the country, together, could not draw it as it had need be drawn. And all would depend on a detail of facts, which if denied, no man could prove. It would be the procedure the most diflicult and sure to fail, that could bo ; worse, if possible, than the suing of live hundred Censitaires together, for failure to keep hearth and home on land, by reserving it for cutting firewood. Well ; by the following Sections it is set forth, that my " statement or petition," when ready, is to be fyled " in duplicate " with the Commissioners ; who, after handing the duplicate of it to the Secretary of the Province, are to meet and take the matter into consideration, first givin^f notice by advertisemeut, of the when and where. Whenever the interests of the Crown may require it, the Attorney General or other Counsel duly authorized, is to represent Her Majesty, and oppose the prayer of the petition. And, as the interest of the Crown will require this in all cases, — the indemnity coming out of a public fund, — it will of course always be the duty of the Attorney General or his deputy, to oppose and sift the statements (of law and fact) of every petitioner. The Commissioners— not necessarily professional men — are to sit as Judges ; and, after hearing the petitioner " in person or by Attorney," and the Crown by the Attorney General or otherwise, are to render their Judgment in writing. And by the Seventy-eighth' Section, it is specially provided that " every such Judgment shall contain the grounds thereof." No easy matter. Petition in detail ; Judgment in detail ; reasons in detail. The Commissioners may find their job as hard as the . 1- W 104 Seignior will hare previously found his. It is the Sfcigiiior'a remedy that is in question. Delay ana diffici.ity are no matter. Certainly not. By tiie Seventy-ninth Section, he is to have the right of appeal — as also is the Crown— to the Queen's Bench ; and thence, to the Privy Cfouncil, whenever (as must commonly be the cast) the demand shall amount to ilSOO Sterling.— Such appeal, upon such matter, may be slow and costly. Still no matter. The next clause, the Eightieth, carries us one step further ; and had need be read carefully, for its tenor to be seized, or credited : — " LXXX. The said Commissioners, and the Courts which shall hear any such •' petition in appeal, shall reject every deraai^d for indemnity based on the privilege ** granted by this Act, to persons possessing lands en roture to free them from that " tenure by the redemption of the dues with which they are charged ; and shall '■' establish the amount of indemnity due to the petitioner, only upon the difference " existing between the manner in which the rights hereafter to be exercised by the " Seignior are defined by this Act, and that by which Ihe rights they exercised before " thepasmisofthi-; Act would have been interpreted tfthis Act had not been passed." The question is not then to be, how much the petitioner has lost. No loss to resutt from the piece-meal and round-aboul way m which his rights are to be (as the phrase is) redeemed, — no loss from any undervaluing or cutting < lown of them, in the redemption schedules, — no loss, even, irora any quantity of theer mistake that a Commissioner may have made in such schedules, — is to count. ' The measure of his loss is to be the differenco between two unknown quantities, — bi tween "the manner in which his rights hereafter to be exercised are defined by tiiis Bill, and that in which his rights as now exercised would have been interpretei . but for thic Bill." Ascertained, such difference would not compensate him. Bi.t how ascer- tain it ? How state it in his; petition? How prove it before the Cor imissioners ? How get it written, and the grounds of it set forth in their Judgment? How attack or delend it in appeal ? This Bill purports to call it doubtful, how his "ights as now exercised should or would be interpreted at law. Suppose the Comnissioners to hold for true the recitals of this Bill ; to define these rights as now exervMsed, so as on legal grounds to give him nothing, let him prove as matter of fact whiit he may. If they will they can. And the Crown is to be by, — party to the suit, to require them (so far as may be) bo to do. The Eighty-tlrst Section takes the next step, thus : — '' LXXXI. Every Judge who shall have presented a petition for indemnity in ** his own behalf, in virtue of this Act, shall be liable to recusation in every case in " appeal from the Judgment rendered by the said Coram 'ssioaers upon any such *' petition ; and every Judge who shall have sat in appeal from any one of such *• Judgments, shall be deemed to have renounced all right to present any such peti- " tion in his own behalf." u "of) Was ever law heard of, or proposed, that a landlord Judge might not sit in a cause between landlord and tenant; cr a proprietor Judge, in a case against a squatter; or a Judge ihat had taken or given or endorsed a promissory note, in a case involving promissory note law ? By this Bill, the Censitaire, Judge of any Court, is to take away the Seignior's land ; the Censitaire Commissioner, Judge of no Court at all, is to cut down the Seignior's rights : all, without recusation or appeal. But the Chief Justice or Judge of the Clueen's Bench, the highest tribunal in the land, if he be a Seignior injured by this Bill, is not to sit — though with other Judges, and subject to appeal to the Privy Council— upon any Seignior's claim of right against like injury. The Judge of the highest grade, whose character may not suffer but witli that of his Country, is to have a stigma cast upon him, such as the old French law — all unworthily suspicious as it is of Judges— never put upon the pettiest magistrate. Any man but such Judge, is to be trusted^ as though wrong or error to be wrought by hira were the thing that could not be. 105 1 IS in Tht of Privy 3\mt to Itill no eed be ly such rivilege om that ad skall fference •.d by the d before passed." J lOBS to o be (as of them, r mistake measure jen "the Bill, and It for thic jw aecer- issioners ? iw attack its as now lioners to led, so aa he may. require [mnity in ry case in 1 any such U of such Wch peti- Jot sit in a [against a Inote, in a ^ge of any , Judge of pr appeal, kal in the jer Judges, of right , may not [ as the old tie pettiest lor error to The Eichty-second and Eighty-third Sections of tlie Bill take care, that if a Seignior shall :nake good a claim, its amount shall not be paid, till his Creditors shall have had their opportunity of making good their claims upon it. And, fittingly to conclude this part of the Bill, the Eighty-fourth and Eighty- fifth Sections read : — " LXXXIV. — And be it enacted, Thut tht emoluments and disburaeraents of " the Commissioners who shall be named under this Act, the expenses to be incurred, " and the amount of indemnity which shall become due under the authority of this " Act. shall not be paid out of the Consolidated Revenue Fund of the Province ; but " it snail be lawful for the Governor to raise by loan, on debentures to be issued for " that purpose, the interest of which shall be payable annually, and the principal at" " such time as the Governor shall deem most advantageous for the public interest, " out of the Special Fund, hereinaiter mentioned, such sum as may be required for " the payment of the said emoluments, disbursements, expenses and indemnity. " LXXXV. — The said Special Fund shall be designated as the " Seignioria " Fund^ and shall consist of: " Ist. — All monies arising from Quint, Relief and othrtr dues which shall " become payable to the Crown in all the Seigniories of which die Crown is the Sei- " gnior Dominant, as well as all arrears ol'such dues. " 2nd.— The Revenue of the Seigniory of Lauzon and the proceeds of the sale *' of any part of the said Seigniory that may be hereafter made. " 3rd. — All monies arising from auction duties and auctioneers' licenses in <* Lower Canada." I have, then, at last got something awarded. Appeal or no appeal — at whatevei cost, and after whatever delay — the award is final. No creditor, even, contests my right to take it. But the credit of the Province is not pledged that I shall have it. It is ** not " to come — so reads the Bill — it is not to come out of the Consolidated Fund. If the Special Fund here designated, suffice to pay it, after paying all Com- missioners' salaries and schedule-making and other disbursements whatsoever, — no small sum, — I am to be paid. If not, I am not to be paid. In the best case suppo- sable, my award is not to cover all my loss ; I am to get it in no hu, ry ; and no clause gives me a hope of getting, along with it, any award of costs on my petition, or on any contestation of it, or apoeal or appeals, that I may have sufiered from. In the worst case, I have lost the whole ; money, time, costs, together. As to the sufficiency of the proposed Fund, one is bound to presume that it is intended to be ample. But if so, why not at once give me the guarantee of the Conso- lidated Fund ? Aa that is not to be'done, one must feel an uncomfortable misgiving, that when the Commissioners are paid, and all the rest of the expenses are paid, there may not be enough to discharge the awards of indemnity ; that is to say, inaeed, unless — as well enough may be the case — tliere be next to none made, at all. Tha designated sources of revenue are, besides, not remarkable for productiveness and security. Relief is never exacted by the Crown ; and it is hard to say why it is named here aa a source of revenue. Quint can accrue no more, after this Bill should have become law ; for no man can be fool enough under such a law to buy a Seigniory. The Seigniory of Lauzon is a property yielding but a very moderate revenue. And auction duties and auctioneers' licenses in Lower Canada, yield no large sum ; to say nothing of questions that may arise, as to the permanent mainte- nance of that form of tax, at its present rate of productiveness. The last part of the Bill remains; the concluding Section, headed as Interpre- tation clauses. The first of these— the Eighty-sixth of the Bill— is this :— I: •II' 106 " LXXXVI. And, for the interpretation of this Act — Be it enacted, That nothing " in this Act contained shall extend or apply to any Seigniory held of the Crown, '* nor to any Seigniory of the late Order of Jesuits, nor to any Seigniory held by " the Ecclesiastics of the Seminary of St. Sulpice, nor to either of the Fiets *' Nazareth, Saint Augustin and Saint Joseph, in the City and County of Montreal, " nor to any of the lands held en roture in any of the said Fiefs and Seigniories," Against so much of this clause as relates to the Seigniories of the Seminary of Montreal, and the Fiefs Nazareth, St. Augustin and St. Joseph, I have not a word to say. Tliey are regulated by express legislative enactment ; and (as I havo already said) it is well that at least that one enactment should be respected. It is respected, precisely as the whole body of law by which the property uf all my .clients is assured to them, ought also to be respected. But there is a further exception here made, which 1 cannot admit. By what right is it proposed to save I'rom the operation of this Bill, the Seigniories held by the Ctown, whether as part of the domain, or as having belonged to the late order olJesuits, or — as the Seigniory of Lauzon is — by purchase. These Seigniories contain ungranted lands, lands granted at higher rales than two-pence and under reserves of all kinds, water-powers, banal mills, — everything this Bill proposes to meddle with. Surely, if any Censitaircs can he favored as to such matters, theirs can. If the Province can give any rights away, it might give its own. This Bill, however, piovides otherwise. The Pi-ovince is to guard its own rights jealously ; to be liberal, at the expense of every rule of right, with mine. The Eighty-seventh Section purports to save from the operation of this Bill, arrears accrued, and past pay:nents, and leases of mills or water powers, and lands conceded after cultivation, in-provement or re-acquisition by the Seignior, or dismemberment from his reserved domain. So far, so good. But upon what princi- ple ? Unless, that such arreari' are legally due ; that such payments were madu in discharge of legal debts; that such leases and grants are valid ; in a word, that my contracts — one and all— are not contrary to law nor null ? If so, on what principle can they be dealt widi, as this Bill would deal with them ? If they are not contrary to law nor null, why are they not let alone? Either they ^re legal, and as such sacred ; ^r they are illegal, and as such worthless. They are my right as they stand ; or they are not my right at all. Once cut down for the future, they cannot be made safe to me for the past. The first blow struck, I cannot be secure from blows to follow. The Eighty-eighth Section defines, among other words, the word *' Seigniory ;" and so defines it as to include within it, every kind of Seigniory, however held ; the Sherrington Seigniories given with the unlimited powers, and under the circumstances I have alluded to ; the Seigniories of Mount Murray and Murray Bay, given by the British Crown to subjects who had shed their blood in its service; the Seigniories granted in /a anc aZew, or otherwise on terms all but importing sover- eignty as well as property, by or for the French Crown. The grantor, and the terms of the grants, are to import nothing. In this at least, the Bill is to be con- sistent. No Seignior is or can be a proprietor ; or shall be so treated. Our properly — the property of every one of us — is to be denitd to us ; our contracts are to avail against us, but not for us ; our whole civil status is to be changed ; wo are to be dealt with, just as it suits the interests of the more powerful class of the community to deal with us ; mocked with the offer of a future mderanity, that shall be no indemnity,— which, however it may keep its present word of promise to the ear, shall break it hereafter to the hope. The Eighty-ninth Section, the last I notice, fittingly adds— as I have observed already — that, lor the ends of this Bill tlie words *' wild land" are not to be held as meaning wild land, but something else. My task is nearly done. I have not willingly taken up so much of the time ofttiis Honorable House; nor spoken more at length than I could help. But I cannot, before concluding, avoid asking one*' igain, after this review of the clauses of this Bill, whether Legislation of tho kinu thereby proposeil can be held lo be in any sense or shape a restoration of any old law which ever at any former time regu- lons withou sugges perhap wrong, the wir the Frt ex peril repeat, to the E has her fiondjii public 1 for agei in its ini 107 hing jwn, id by Fiets ireal, iry of word huvo l1. It ill my ' what eld by ordtT iiiories I under jjes to , theirs lis Bill, lously ; lis Bill, id landa ;nior, or t princi- e mado 3rd, that on what y are not ral, and right as ire, ihey J secure niory , held ; der the ray Bay, vice •, the ng sover- and the be con- properiy to avail ■ire to be mniunity all be no o the ear, observed )C held as the time lip. But I lie clauses Id to bo ill Itime regu- lated Seigniorial property ; whether there would be any going backto the past, in the enactment of a new law, containing such provisions as this Bill contains ; whether any Buch project of law ought to be enacted, or indeed can so much as be discussed, as likely to become law, — unless with the most disastrous consequences. It cannot be, that such a measure should be the last project of its kind. Were it passed to-morrow, — as it cannot be, — its effect would only be to maintain in morbid existence the very Tenure which it purports to intend to sweep away. It would have declared much, and implied more ; would have unsettled every-thing ; esta- blished nothing. The legislative word would have gone forth, that my clients are not proprietors ; that their rights are nothing but what the Legislature may see fit to make them. We should be sure to be told, that what this Bill may leave us is no more ours, than what it should have taken from us. We must defend ourselves, as well against the proposal of this measure as against those that must come after it. We must set forth — here, every where — the whole strength of our case. We must declare, — for we are ruined otherwise, — however unwillingly, however we may love this our country, however anxious we may bo to maintain her character ancl credit, we must declare, — and, so declared, what we say must everywhere instinctively be felt to be true, — that measures such as we are threatened with, are measures, of a kind to destroy all trust in our institutions, or in the character of our people. We may save ourselves ; or we may be ruined. But we cannot be ruined alone. The agitation that shall have beggared us, will have demoralised this country, and destroyed all public faith in its institutions. Public confidence is of slow gr3Wth. We have seen how slowly, as regards this country, it has grown to be what it is, — to give promise of the fruit, which h does at this day promise to the lately reviving hopes of our community. Is it so, that we are to see those hopes fail, — the tree cut down to its roots, its re-growth doubtful, — at best, to be but after long delay, yet more slowly, with less promise to others than now to ourselves ? Nothing by any possibility to be gained— and there is in fact nothing whatever that by this measure can be gained — could compensate for such loss. I know, indeed, that many people ignorant of Ihe facts think of the Seigniorial Tenure, with what they call its abuses and extorlirns, as of a something so monstrous and oppressive, as to make it hardly any .natter what means may be taken to get rid of it. With a vague impression of the horrors that accompanied the destruction of the Seigniorial system in France, and ascribing them (as is often done) to unwise delay, resisiance and I know not what, they draw the inference that here in Ca- nada, by whatever means— one need not care how^ — the country population must be freed from its burthens ; or, before long the whole fabric of Society will be broken up. No mistake can be greater. The Seigniorial Tenure as it existed in France in 1789, was a system, to which nothing can be more unlike, than that which now subsists under the same name here. The two have hardly a feature in common. There, indeed, there was extortion ; an extortion dating back througli long ages ol'oppression and wrong of every kind, to the conquest of one race by another ; extortion, sometimes more or less veiling itself under the form of contract, but oftener subsisting as mere custom, the custom of a conquering tyranny ; ex- tortion, that under every vaiiety of form, by exactions the most multiplied and oppressive — the very names of most of which have long since lost meaning, save to the antiquary — ground down and kept in abject want and prostration the whole rural population of the land. It was swept away utterly, in a moment of madness, n""d with every accompfiniment of crime and horror. It was not swept away, without violation of contracts and rights of property. But may it not at least be suggested, that the sweeping away ofthat system, all bad as the system was, has perhaps not yielded all the fruits that were hoped for, by those who then did the wrong, of abolishin/j it otherwise than with a due regard to right ? They sowed the wind. Did they not — do they not — reap the whirlwind ? VV ho will say, that the French nation, so far, has cause to congratulate itself on the results of its fearful experiment of social and political destruction? But to all that state of things, I repeat, there is here nothing that can be compared. Here, everything appertaining to the system is matter cf contract and law. What in France was mainly fiction, has here been fact. The obligations that subsist, are obligations resulting from bond, fide grants of land ; obligations, partly of free contract, partly superadded by public law upon the basis of such contract. Besides, there the rural population had for ages been kept in a state of poverty and wrong, not much more humanizing in itsinfiuences than a state of slavery would have been, and may be eaid to have II r 1 1 - 1 iV \ L-iJ if 108 first woke to political existence, at the moment when it seized on all the powets of the State. Here, we have a rural population, as easy in its circumstances, as res- pectable for every moral quality, as respectful of law and property, as any on the lace of the globe. To liken our population to that ol France \n 1789, is a mistake as great as a man well can make ; and one as well calculated, by the way, as any- thing can be, to destroy our character. The matter in dispute here, what is it? A question whether lands shall continue to pay a penny, two pence, two pence half penny — possibly a shilling — an arpent, of yearly rent. The systemj unless as car- rying with it lods et ventes, is not one of hardship. The burthens it imposes, are not heavily felt by those on whom they fall. That, upon public grounds, it were well to put an end to it, I do not question. But it were better it remained forever, than that it should be put an end to, unjustly, — at the cost of the character of the country. I say no word against the commutation of the Tenure. I desire it. My clients desire it. It can be elfected, without involving them in loss. It ought, if done at all, to be so done. It must be so done. — They are not guilty trustees to be punished ; but pruprietcrs to be protected. They have the right to require that their property be protected. They have the right to except, they do most respectfully but firmly except, to the competency of this Legislature — of any Legislature — to destroy their vested rights, to give away what is theirs, toothers. The great Judge, whose name perhaps more than that ot any other is of the history of our Common Public Law, long ago laid down the maxim, as appearing from the books, that *' in many cares ** the Common Law will control Acts of Parliament^ and sometimes adjudge them " to be void : For when an Act of Parliament is against Common Right and Reason, '* or repugnant or impossible to be performed, the Common Law will control it, and ** adjudge such Act to be void." The tradition of that maxim of that great man has never been lost ; but remains yet, a maxim of the Common Public Law, by the side even of that other tradition which holds that Parliament — the Imperial Parlia- ment — is omnipotent, may do what it will. And most surely it is not too much for me to say, that this Parliament — a Parliament not Imperial — has not, at Common Law, the right to break contracts, to take from one man what is his, to give it to another. My clients ask — I here ask for them — no preference or privilege over any class of our countrymen. They have no wish to go back towards that past, wherein they were judged by one tribunal, and their Censitaires by another ; their position then the favorable one. But they do ask, that they be not carried into a future, where- in they shall be judged by one tribunal to their ruin, and their Censitaires by a- nother to their own gain. They do ask—ask of right — that upon the Statute Book of this Province, as touching them and theirs, that only be declared which is true, that only enacted which is right. And pleading here this their cause, before this Honor- . able House, the Commons House of Parliament of this British Country of Canada, — appealing to this Country here represented,— recalling, too, the assurance but lately given as to this very matter from the Throne, and the answering pledge of the Country, signified through both Houses of its Parliament, — I have too firm faith in the absolute omnipotence, here and now, of the true and right, to be able to feel a fear as to the final judgment which the Country and the Crown shall pass upon it. [9 of res- the take ,ny- ;? A half car- , are well than intry. lients me at shed ; iperty irmly their name Law, cares 1 them eason, it, and t man bvthe Pa'rlia- dch for >mmon 3 it to y class in they on then where- by a- 3ook of that 3onor- anada, ice but dge of m faith to feel 1 pass